Local Union gets Four Part Time Flexible Clerks Converted to Full Time Status

On Februrary 5, 2010 Arbitrator Gilder ruled in favor of the Union, by converting four Part Time Flexible Clerks, to Full Time status. Eastern Region National Business Agent Bob Romanowski, argued an extremely good case. 

BACKGROUND INFORMATION

On or about November 26, 2005 Rich Warrington, local Union steward requested and received information from the Service regarding hours worked by part-time flexible employees (hereinafter "PTFs") at the Newark, Delaware facility for the relevant time period of March 19, 2005 (pay period 7, week 1) through November 25, 2005 (pay period 24, week 2). The information led the Union to believe Management should convert four (4) PTF positions to fulltime positions. The Service refused the Union's request. It is this action by the Service that has resulted in this present grievance.

 THE UNION'S POSITION

The Union contends the Service's failure to convert the part-time positions is improper in that the analysis of the PTF work hours demonstrates the conversion requirements of Article 7~3 have been met; that the Union is permitted to aggregate the work hours of multiple PTF employees in order to demonstrate the need for converting a PTF position to full-time status.

THE SERVICE'S POSITION

The Service contends its action in not converting the PTF positions to full-time status is not improper in that no individual PTF employee worked the hours/days required by Article 7~3.B ofthe National Agreement for conversion of a PTF position; that there is no obligation by the National Agreement for the Service to aggregate PTF work hours to reach the requisite of Article 7~3.B; that "because of the size of the (Newark] office, and the separation of the three facilities I, to convert any of the PTFs at this time would result in less flexibility and would create unnecessary overtime to cover current operational needs2".

ANALYSIS AND DISCUSSION

It would appear the Union has sustained its initial burden of proof in this contractual dispute and shown a prima facie case the National Agreement has been violated by Management's refusal to convert PTF positions to full-time status at the Newark facility. The Union has demonstrated through its mathematical analysis of the PTF work hour information provided by the Service the part-time employees at the Newark facility are working in a manner consistent with the requisites of Article 7S3.B and so place an obligation on Management to convert a number of part-time positions to full-time status. Having observed the Union meet its initial burden, the inquiry then turns to the defenses proffered by the Service for its actions in this matter.

The Service essentially posits three defenses: no Contractual mandate to aggregate the work hours of multiple PTF employees in order to demonstrate the need for conversion, operational efficiency and Article 12 withholding. We address each of these in turn. The essential heart of the Service's defense in this grievance is not whether the Service is obligated to convert PTF positions to full-time once the requisites of Article 7S3.B and C of the National Agreement have been satisfied. Both parties agree the Service is under such an obligation. Rather the heart of the matter is the manner in which the requisites are calculated. That is, the Service argues the Union may not combine the work hours of multiple PTF employees in order to demonstrate the need for converting part-time assignments to full-time status. It is this arbitrator's opinion the Union may.

The great weight of arbitral authority, both at the national and regional levels, supportsthe Union's aggregation of individual PTF employees' work hours to show compliance with the mandate of Article 7S3.B. As regional arbitrator Linda De Leon Klein stated, "The arbitrator is ofthefurther opinion that Article 7.3.B is a 'broad policy' pertaining to maximization and it creates an obligation to convert PTFs to full-time status when conversion opportunities can be demonstrated. This demonstration is not limited to a single employee working eight hours within ten on the same five days each week and in the same assignment over a six month {sic} period. Article 7.3.B may be interpreted to include a combination of the hours of two or more PTFs to show that a conversion is warranted.',1 Also from distinguished arbitrator Ernest E. Marlatt, "The need to convert an assignment can also be 'demonstrated' by proof of other facts and circumstances, including statistical averages or combined totals of work hours, which establish that PTF clerks are actually being utilized in lieu of full-time employees with fIXed schedules and that one or more PTF clerks can be converted to such afull-time status without substantially changing the number of clerks scheduled to work at straight time rates during any given hour on any given day.', 4 It has not been argued the Union's mathematical analysis of the work hour information supplied by Management is somehow flawed. Nor has Management submitted any documentary evidence that would rebut the Union's analysis.

Also, Management argues conversion of the PTFs would somehow compromise Management's operational flexibility and efficiency. While nothing was submitted by the Service to support this argument, it bears pointing out there is no requirement the positions be converted to full-time regular. The only requirement ofthe National Agreement is conversion to full-time status. The Service could convert the positions to full-time flexible and utilize those employees as needed. This would allow Management to satisfy two essential needs: flexibility and Contractual conformity.

Further, Management contends the Newark facility is under Article 12 withholding; that any position being "backfilled" by a PTF employee would have been withheld under Article 12 and if a residual vacancy was created by conversion, it would likewise be withheld under Article 12. This is essentially a moot issue since nothing was introduced during the course of this grievance or at the grievance hearing that would show any evidence the Newark PTFs were working in positions being withheld under Article 12 or that any residual vacancies would be created by any PTF conversions. In conclusion, nothing has been introduced during the course of this grievance that would indicate the Union should not prevail in this matter and the effected part-time positions be converted to full-time positions in accordance with the Collective Bargaining Agreement between the parties.

AWARD

Based on the foregoing facts, information and analysis, it is this arbitrator's decision the Service did violate Article 7~3.B and C of the National Agreement when it failed to convert parttime flexible positions to full-time status at the Newark, Delaware facility. The Service is directed to establish four (4) full-time duty assignments at the Newark facility. The PTF employees who should have been converted to full-time status at the time the grievance was filed are to be made whole in all respects including but not limited to benefits, back pay, out-of-schedule and holiday compensation, where applicable. This arbitrator retains jurisdiction in this matter to provide such other relief to which the parties may be entitled or to correct any error or ambiguity.

Arbitrator Gilder

For the full arbitration award please click on the following link: http://www.newarkdelocal.com/Arbitration%20Awards/PTF%20ConversionC00C4CC06029056-ClassAction%28Newark%2CDE%29Award.pdf