WESTERN REGIONREGULAR ARBITRATION PANEL

In the Matter of the Arbitration ) GRIEVANT :Rick Kuchynka

-Between- ) POST OFFICE :Miles City, MT

UNITED STATES POSTAL SERVICE )CASE NO :

-And- ) W7N-5K-C 18037

NATIONAL ASSOCIATION OF ) NALC GTS NO :LETTER CARRIERS, AFL-CIO ) 4284

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BEFORE : CARL B .A . LANGE III, Arbitrator

APPEARANCES :

For the U .S . Postal Service : L .G . HANDYManager, Labor Relations1760 West 2100 SouthSalt Lake City, UT 84199-9401

For the Union: JIM WILLIAMSRegional Administrative AssistantP .O . Box 84386Vancouver, WA 98684-6545

Place of Hearing : 106 North 7th StreetMiles City, MT

Date of Hearing :

AWARD :

May 1, 1990

The Postal Service did not violate the National Agreement when itcharged the Grievant 52 minutes of Absence Without Official Leaveon August 31, 1989 .

Date of Award : Januay 11, 1991

RECEIVEDJAN 16 1991

JIM EDGEMON, NBANational ksociatloo UIty Gnus

BACKGROUND(Kuchynka - AWOL)

Pursuant to the terms of the National Collective BargainingAgreement ("National Agreement") between the UNITED STATES POSTALSERVICE ("Service" or "Employer"), and the AMERICAN POSTAL WORKERSUNION, AFL-CIO ("APWU" OR "Union"), and the NATIONAL ASSOCIATION OFLETTER CARRIERS , AFL-CIO ("NALC" or "Union"), the undersigned wasselected from the USPS/NALC Western Region Regular Arbitration .Panel to serve as the Arbitrator in this matter .

This matter arises as a result of the Service's issuance of aletter that charged the Grievant with 52 minutes of AWOL for August31, 1989 . At all times relevant to the events surrounding thisgrievance, the Grievant was suffering from, and receiving treatmentfor, symptoms of clinical depression . The Grievant had been placedon administrative leave effective on August 30, 1989 . (The reasonsfor the leave, the events surrounding its imposition, and theService's subsequent determination to terminate the Grievant arenot at issue in this matter .) The terms of the administrativeleave required the Grievant "to be available by phone or personalcontact" during the regular workday . The administrative leave wasfurther conditioned as follows :

"If you become medically incapacitated or wishto not be available during the period, you maysubmit a request for appropriate leave .Without advance approval of leave, non-availability during your normally scheduledworkhours may be considered as an absencewithout officialExhibit 1 .)

leave (AWOL) ." (Employer

On August 31, 1989, at about 2 :08 p .m., the Grievant called theMiles City Post Office to report that he would be unavailable forcontact between that time and 3 :00 p .m ., the end of his regularworkday. The Grievant maintained that he told the Service that hewas going to play golf . The Service maintained that it had beennotified that the Grievant was going to his doctor's . The instantdispute hinges on the reason given to the Service regarding thepurpose of the Grievant's absence . When the Service ascertained,and partially verified through the Grievant's own admission, thathe had been at the golf course, it determined that the time wouldbe charged to AWOL .

A Step 1 grievance meeting was held on September 27, 1989 . Thegrievance was denied on October 2, 1989 . A formal Step 2 grievancewas filed shortly thereafter . The grievance alleged a violation ofArticles 3, 15 and 19 of the National Agreement (Jt . Exhibit 1), aswell as Sections 512 .1, 512 .411, 512 .422, 516, 516 .2, and 516 .63 ofthe Employee and Labor Relations Manual ("ELM") . The grievance wasdenied at Step 2 on October 27, 1989 . A Step 3 appeal followed .The Step 3 meeting was held on December 13, 1989 . A Step 3

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decision letter denying the Grievance was issued on December 29,1989 . The grievance was not settled through the formal grievanceprocedure and was processed to arbitration pursuant to theprovisions of the National Agreement .

An evidentiary hearing was held on May 1, 1990, at the postalfacility located at 106 North 7th Street, Miles City, Montana. TheService was represented by L . G . Handy, Manager, Labor Relations .The NALC was represented by Jim Williams, Regional AdministrativeAssistant . The parties agreed that there were no issues ofprocedural or substantive arbitrability to be resolved and that thematter was properly before the Arbitrator .

During the course of the hearing, the parties were afforded a fulland complete opportunity to be heard, to call, examine, and cross-examine witnesses , to develop arguments , and to present relevantevidence . Rick Kuchynka ("Grievant" or "Employee"), a lettercarrier at the Miles City Post Office since November 1985, waspresent at the hearing and testified on his own behalf . Allwitnesses who appeared before the Arbitrator were duly sworn. Anofficial transcript of the hearing was made by a RegisteredProfessional Reporter . A copy of the "Transcript of Proceedings"was submitted to the Arbitrator on May 11, 1990 . The partiessubmitted written post-hearing briefs . The Union's post-hearingbrief was received by the Arbitrator on November 29, 1990 . TheService's post-hearing brief was received by the Arbitrator onDecember 11, 1990 . The matter was deemed to be submitted fordecision as of December 11, 1990 .

The Issue

The Union' s position was that the issue should be stated as :

"Did the Postal Service violate the NationalAgreement and relevant handbooks or manualswhen they charged the Grievant 52 minutes ofAWOL on August 31, 1989?

"If so, what is the appropriate remedy?"

The Service's position was that the issue should be stated as :

"Did the Postal Service violate the NationalAgreement, and specifically Article 19 whichincorporates the ELM Manual, when they chargedthe Grievant with 52 minutes of AWOL on August31, 1989?

"If so, what is the appropriate remedy?"

Since the parties were unable to agree to a statement of the issue,the matter was left for determination by the Arbitrator . After a

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review of the transcript and relevant evidence, the Arbitratordetermined that the issue should be stated as :

"Did the Postal Service violate the NationalAgreement when it charged the Grievant with 52minutes of AWOL for August 31, 1989?

If so, what is the appropriate remedy?"

The Union ' s Position

The union claims, as its primary position , that the Grievantadhered to the terms of his administrative leave instructions andnotified the Service properly that he would be unavailable by phoneon the day in question . Further, the Union argues that theGrievant specifically and unequivocally told the Service that hewas going golfing, even to the extent of providing the telephonenumber at the golf course pro shop . At no time did the Grievantattempt to mislead the Service about where he was going or what hewould be doing . The Union challenges the Service ' s contention thatthe Grievant told them that he was going to his doctor's . TheUnion asserts , finally , that the Grievant was entitled to eighthour's pay , not seven hours and eight minutes , for August 31, 1989,by operation of the ELM .

As to the Remedy , the Union urges the Arbitrator to order that theGrievant "be made whole for the 52 minutes of AWOL and that theLetter of Charges be expunged from his record ."

The Service ' s Position

The Service ' s view of the situation is clearly expressed in therelevant paragraphs of the September 18, 1989 letter (it . Exhibit2G), characterized above as the " Letter of Charges" by the Union,that notified the Grievant of the AWOL determination :

"[Y]ou called in at 2 :08 p . m . and advised SPOAl Olson that you would be gone from the houseuntil 3 :00 p .m ., as you were going to see Dr .Peterson . Management has confirmed thatcontrary to what you said to Mr . Olson, youwent to the Miles City Golf Course , teed offat approximately 2 :30 p .m . and proceded [sic]to play a round of golf . On September 7,1989, you contended that you had told Mr . .Olson , on August 31, that you were going to beat the golf course and that you had left wordwith the golf pro to be contacted on thecourse if you received any calls between 2 :30p .m . and 3 :00 p . m . Management has confirmedthat your call to Mr . Olson did not relate toa visit to the golf course at that time and

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has confirmed that no such arrangements, asalleged, were made with the golf pro .

"You were advised in the above referencedletter that you are to remain available byphone or personal contact during your normalwork schedule while on administrative leave .You were advised that without advance approvalof leave, non-availability during yournormally scheduled workhours may be consideredas an absence without official leave (AWOL) .I have, therefore, directed that your non-availability for fifty-two (52) minutes from2 :08 p .m . to 3 :00 p .m . on Thursday, August 31,1989, be recorded as AWOL . You will not becompensated for that period of time ."

The Service contended that either there was an unintentionalmiscommunication between the Grievant and Mr . Olson or there was adeliberate and intentional attempt by the Grievant to misleadmanagement as to his whereabouts for the last few minutes of theworkday on August 31, 1989 . The Service also argued that itsultimate determination to charge the 52 minutes to AWOL wasappropriate where the time would not have been authorized if it hadbeen understood that the Grievant intended to play golf .

Relevant Provisions of the National Agreement

The Agreement between the United States Postal Service and theAmerican Postal Workers Union, AFL-CIO, and the NationalAssociation of Letter Carriers, AFL-CIO, provides :

"ARTICLE 3

"MANAGEMENT RIGHTS

"The Employer shall have the exclusive right,subject to the provisions of this agreementand consistent with applicable laws andregulations :

"A . To direct employees of the Employer inthe performance of official duties ;

"B . To hire, promote, transfer, assign, andretain employees in positions within thePostal Service and to suspend, demote,discharge, or take other disciplinary actionagainst such employees ;

"C . To maintain the efficiency of theoperations entrusted to it ;

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"D . To determine the methods, means, andpersonnel by which such operations are to beconducted ;

"E . To prescribe a uniform dress to be wornby letter carriers and other designatedemployees ; and

"F . To take whatever actions may be necessaryto carry out its mission in emergencysituations, i .e ., an unforseen circumstance ora combination of circumstances which calls forimmediate action in a situation which is notexpected to be of a recurring nature .

. .'

"ARTICLE 15

"GRIEVANCE-ARBITRATION PROCEDURE

"Section 1 . Definition

"A grievance is defined as a dispute,difference, disagreement or complaint betweenthe parties related to wages, hours, andconditions of employment . A grievance shallinclude, but is not limited to, the complaintof an employee or of the Unions which involvesthe interpretation, application of, orcompliance with the provisions of thisAgreement or any local Memorandum ofUnderstanding not in conflict with thisAgreement .

"Section 2 . Grievance Procedure - Steps

"Step 1 :

"(a) Any employee who feels aggrieved mustdiscuss the grievance with the employee'simmediate supervisor within fourteen (14) daysof the date on which the employee or the Unionfirst learned or may reasonably have beenexpected to have learned of its cause . Theemployee, if he or she so desires, may beaccompanied and represented by the employee'ssteward or Union representative . . . .

"(b) In any such discussion the supervisorshall have authority to settle the grievance .The steward or other Union representative

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likewise shall have authority to settle orwithdraw the grievance in whole or in part .No resolution reached as a result of suchdiscussion shall be a precedent for anypurpose .

"(c) If no resolution is reached as a resultof such discussion , the supervisor shallrender a decision orally stating the reasonsfor the decision . The supervisor ' s decisionshould be stated during the discussion, ifpossible , but in no event shall it be given tothe Union representative ( or the grievant, ifno Union representative was requested) laterthan five ( 5) days thereafter unless theparties agree to extend the five (5) dayperiod . . . .

"(d) The Union shall be entitled to appeal anadverse decision to Step 2 of the grievanceprocedure within ten (10) days after receiptof the supervisor ' s decision . Such appealshall be made by completing a standardgrievance form developed by agreement of theparties, which shall include appropriate spacefor at least the following :

"1 . Detailed statement of facts ;

"2 . Contentions of the grievant ;

"3 . Particular contractual provisionsinvolved ; and

" 4 . Remedy sought .

"Step 2 :

"(a) The standard grievance form appealing toStep 2 shall be filed with the installationhead or designee . In any associate postoffice of twenty (20) or less employees, theEmployer shall designate an official outsideof the installation as the Step 2 official,and shall so notify the Union Step 2representative .

"(b) Any grievance initiated at Step 2,pursuant to Article 2 or 14 of this Agreement,must be filed within 14 days of the date onwhich the union or the employee first learnedor may reasonably have been expected to havelearned of its cause .

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"(c) The installation head or designee willmeet with the steward or a Unionrepresentative as expeditiously as possible,but no later than seven ( 7) days followingreceipt of the Step 2 appeal unless theparties agree upon a later date . In allgrievances appealed from Step 1 or filed atStep 2 , the grievant shall be represented inStep 2 for all purposes by a steward or aUnion representative who shall have authorityto settle or withdraw the grievance as aresult of discussions or compromise in thisStep . The installation head or designee inStep 2 also shall have authority to grant orsettle the grievance in whole or in part .

"(d) At the meeting the union representativeshall make a full and detailed statement offacts relied upon , contractual provisionsinvolved , and remedy sought . The Unionrepresentative may also furnish writtenstatements from witnesses or otherindividuals . The Employer representativeshall also make a full and detailed statementof facts and contractual provisions reliedupon . The parties ' representatives shallcooperate fully in the effort to develop allnecessary facts, including the exchange ofcopies of all relevant papers or documents inaccordance with Article 31 . The parties'representatives may mutually agree to jointlyinterview witnesses where desirable to assurefull development of all facts and contentions .In addition , in cases involving dischargeeither party shall have the right to presentno more than two witnesses . Such right shallnot preclude the parties from jointly agreeingto interview additional witnesses as providedabove .

"(e) Any settlement or withdrawal of agrievance in Step 2 shall be in writing orshall be noted on the standard grievance form,but shall not be a precedent for any purpose,unless the parties specifically so agree todevelop an agreement to dispose of futuresimilar or related problems .

"(f) Where agreement is not reached theEmployer ' s decision shall be furnished to theUnion representative in writing , within ten(10) days after the Step 2 meeting unless theparties agree to extend the ten ( 10) day

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period . The decision shall include a fullstatement of the Employer's understanding of(1) all relevant facts, (2) the contractualprovisions involved, and (3) the detailedreasons for the denial of the grievance .

"(g) If the Union representative believes thatthe facts or contentions set forth in thedecision are incomplete or inaccurate, suchrepresentative should, within ten (10) days ofreceipt of the Step 2 decision, transmit tothe Employer's representative a writtenstatement setting forth corrections oradditions deemed necessary by the Union . Anysuch statement must be included in the file aspart of the grievance record in the case . Thefiling of such corrections or additions shallnot affect the time limits for appeal to Step3 .

" (h) The Union may appeal an adverse Step 2decision to Step 3 . Any such appeal must bemade within fifteen ( 15) days after receipt ofthe Employer ' s decision unless the parties'representatives agree to extend the time forappeal . Any appeal must include copies of (1)the standard grievance form, (2) theEmployer ' s written Step 2 decision , and, iffiled, (3) the Union corrections or additionsto the Step 2 decision .

"Step 3 :

"(a) Any appeal from an adverse decision inStep 2 shall be in writing to the RegionalDirector for Human Resources , with a copy tothe Employer ' s Step 2 representative, andshall specify the reasons for the appeal .

"(b) The grievant shall be represented at theEmployer ' s Regional Level by a Union'sRegional representative , or designee. TheStep 3 meeting of the parties ' representativesto discuss the grievance shall be held withinfifteen ( 15) days after it has been appealedto Step 3 . Each party ' s representative shallbe responsible for making certain that allrelevant facts and contentions have beendeveloped and considered . The. Unionrepresentative shall have authority to settleor withdraw the grievance in whole or in part .The Employer ' s representative likewise shallhave authority to grant the grievance in whole

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or in part . In any case where the parties'representatives mutually conclude thatrelevant facts or contentions were notdeveloped adequately in step 2, they shallhave authority to return the grievance to theStep 2 level for full development of all factsand further consideration at that level . Insuch event , the parties ' representatives atStep 2 shall meet within seven ( 7) days afterthe grievance is returned to Step 2 .Thereafter , the time limits and proceduresapplicable to Step 2 grievances shall apply .

"(c) The Employer ' s written Step 3 decision onthe grievance shall be provided to the Union'sStep 3 representative within fifteen ( 15) daysafter the parties have met in Step 3, unlessthe parties agree to extend the fifteen (15)day period . Such decision shall state thereasons for the decision in detail and shallinclude a statement of any additional factsand contentions not previously set forth inthe record of the grievance as appealed fromStep 2 . Such decision also shall statewhether the Employer ' s Step 3 representativebelieves that no interpretive issue under theNational Agreement or some supplement theretowhich may be of general application isinvolved in the case .

"(d) The Union may appeal an adverse decisiondirectly to arbitration at the Regional levelwithin twenty-one (21 ) days after the receiptof the Employer's Step 3 decision inaccordance with the procedure hereinafter setforth ; provided the Employer' s Step 3 decisionstates that no interpretive issue under theNational Agreement or some supplement theretowhich may be of general application isinvolved in the case .

"Section 3 . Grievance Procedure - General

"A. The parties expect that good faithobservance , by their respectiverepresentatives , of the principles andprocedures set forth above will result insettlement or withdrawal of substantially allgrievances initiated hereunder at the lowestpossible step and recognize their obligationto achieve that end .

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"B . The failure of the Employee or the Unionin Step 1 , or the Union thereafter to meet theprescribed time limits of the Steps of thisprocedure , including arbitration, shall beconsidered as a waiver of the grievance .However, if the Employer fails to raise theissue of timeliness at Step 2, or at the stepat which the employee or Union failed to meetthe prescribed time limits, whichever islater, such objection to the processing of thegrievance is waived .

"C. Failure by the Employer to schedule ameeting or render a decision in any of theSteps of this procedure within the time hereinprovided (including mutually agreed toextension periods ) shall be deemed to move thegrievance to the next Step of the grievance-arbitration procedure .

"Section 4 . Arbitration

"A . General Provisions

"5 . Arbitration hearings normally will beheld during working hours where practical .Employees whose attendance as witnesses isrequired at hearings during their regularworking hours shall be on Employer time whenappearing at the hearing , provided the timespent as a witness is part of the employee'sregular working hours .

"6 . All decisions of an arbitrator will befinal and binding. All decisions ofarbitrators shall be limited to the terms andprovisions of this Agreement , and in no eventmay the terms and provisions of this Agreementbe altered , amended, or modified by anarbitrator . . . .

"9 . In any arbitration proceeding in which aUnion feels that its interests may beaffected , it shall be entitled to interveneand participate in such arbitrationproceeding, but it shall be required to sharethe cost of such arbitration equally with any

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or all other Union parties to such proceeding .Any dispute as to arbitrability may besubmitted to the arbitrator and be determinedby such arbitrator . The arbitrator'sdetermination shall be final and binding .

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ARTICLE 19

HANDBOOKS AND MANUALS

"Those parts of all handbooks, manuals andpublished regulations of the Postal Service,that directly relate to wages, hours orworking conditions, as they apply toemployees covered by this Agreement, shallcontain nothing that conflicts with thisAgreement, and shall be continued in effectexcept that the Employer shall have the rightto make changes that are not inconsistent withthis Agreement and that are fair, reasonable,and equitable . This includes, but is notlimited to, the Postal Service Manual and theF-21, Timekeeper's Instructions .

ANALYSIS AND CONCLUSION

Postal Service management has, and retains, the right to direct itswork force, to provide for efficient operations, and to determinethe methods, means, and personnel through which its mission will beaccomplished . (it . Exhibit 1 at Article 3 .) The Service's rightsare limited and regulated by provisions of the National Agreement,Memoranda of Understanding that are contained in the NationalAgreement, and by local Memoranda of Understanding that have beennegotiated pursuant to Article 30 . Various Postal ServiceHandbooks, Operating Manuals, and Regulations also containlimitations and restrictions on the exercise of management's rightsthat are integrated with the National Agreement by operation ofArticle 19 .

The Service has the right to place an employee on administrativeleave . Administrative leave is an authorized absence from dutywhile the employee remains on regular pay status .

"[I]t is a leave granted by Management tofurther the interests of the Postal Service .

. Administrative leave is not intended toconvey a privileged status, where the employee

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can do what he wants ; rather it is a statusfor Postal Service efficiency or convenience. . ." (Arbitrator Fogel, Case No . W7N-5E-C20079 , 1990 .)

Arbitrator Fogel further stated that the Service has the authorityand discretion to dictate reasonable requirements that constrain anemployee' s freedom of action during the time that the employee ison administrative leave .

As a part of the administrative leave, the Service required thatthe Grievant be available by phone or personal contact, requiredthat he request appropriate leave if he wished not to be available,and informed him that he would be considered AWOL if he failed tocomply with the stated requirements . Employer Exhibit 1 by itsterms retained the Service's right to make an individualdetermination on each request to be not available . There was nochallenge to the reasonableness of the requirements, nor in theArbitrator's opinion, would such a challenge have been sustained .

The record indicates that the Grievant honestly, and perhapscorrectly, believed that there was some amount of latitude in hispersonal activities while he was on administrative leave, just aslong as he called the Post office and informed the Service of hisintended whereabouts . At a minimum, that latitude would allow himto be absent from home and/or out of telephone contact in order tovisit his Doctor and to take walks . The walks were apparentlyaccepted by the Service as part of the Grievant's prescribedtreatment for his depression .

Since the Service has the right to determine the terms under whichan employee is placed on administrative leave, arbitral review islimited to the question of whether the Service's implementation ofthe terms meets a basic test of reasonableness . An Arbitrator isrequired to review the Service's actions within a relativelyproscribed set of well-accepted guidelines . In matters such asthis, arbitral intervention is justified only in limitedcircumstances :

"[T]he Union must surmount the presumptionthat the Employer's decision was made in goodfaith and was based upon a reasonablefoundation . Of course, exercises ofmanagerial prerogatives are open to challengeon questions of unreasonableness,discrimination, arbitrariness, andcapriciousness . . . . [U]nless the Union canestablish that the Employer abused itsdiscretion, arbitral intervention isunwarranted." (Arbitrator Dworkin, Case No .C8N-4B-C 31531, 1983 .)

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The determination of how to assess the 52 minutes in questionbelongs to the Service . It had at least two other options besidesthe AWOL determination . First, the time could have been maintainedin regular administrative leave status . The Service could haveconsidered playing golf to be equal to taking walks - an admittedlyacceptable on-the-clock activity . However, the Service had theright to consider the detrimental effect of the public's (includingother employees') perception that it would sanction an employeeplaying golf during his regular workday . Second, the time couldhave been charged to leave without pay (LWOP) status . The neteffect would have been the same as the AWOL status, without thepejorative connotation, as the Grievant would not be on the clockwhile on the golf course . The Service's determination to assessthe time as AWOL instead of LWOP was influenced by the perceptionthat the Grievant's call was an attempt to mask the true reason forbeing out of personal contact . While the Arbitrator does notaccept the Service's reasoning, the real issue is not who is to bebelieved as to the substance of the Grievant's call to the PostOffice but the substance of the call itself . It is clear that theGrievant did not say that he was going golfing . His reference to"1500," the phone number at the golf course, is not specific enoughto guarantee that the person who took the message understood themessage . When an employee in this situation wants to remain inpaid status for a full eight hours and wants to avoid theimposition of an AWOL determination, it is the employee who isrequired to make certain that there is no misunderstanding .

While the Arbitrator's analysis of the situation might lead to theconclusion that circumstances could justify an extension of theadministrative leave in the instant circumstances or, in thealternative, charging the 52 minutes to LWOP status, there is nocompelling evidence in the record upon which to base a finding thatthe Service's AWOL determination was arbitrary, capricious, orbased on an unreasonable motive . If the Arbitrator is unable tomake such a finding, then his judgement as to what is proper orpreferable may not be substituted for the Service's determination .

AWARD

The Service did not violate the terms of the National Agreementwhen it charged the Grievant with 52 minutes of AWOL for August 31,1989 . The grievance is denied .

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