The Facts As Management Understands Them Are As Follows

Date

Steward Name:
Local Grievance #:
GATS # :
Grievant's Name:
Office Name:

The subject Step 2 grievance was discussed with you in accordance with Article 15, Section 3 of the National Agreement.

The facts as management understands them are as follows.

On (Date/s) a winter storm hit (Location).

The following is a list of employees that did not report for work on (Dates):

(List the employees by name and where they live from the Post Office)

The following is a list of employees that did report for work on (Dates):

(List the employees by name and where they live from the Post Office)

Additional issues to consider annotating/attaching to the step 2 decision:

· Did your star routes arrive and depart, even if late?

· Were deliveries made? How many?

· How many window transactions did you have?

· Were surrounding highways closed? If so, when and how long?

· What type of attendance record do the employees have that did not report?

· List of all employees who were late arriving as a result of the storm.

· Address newspaper articles carrying local accounts of the storm.

· List of businesses that you noted as open during the day in question.

· Review of traffic on main roads

· Contact the local municipalities to learn how many emergency (fire/police/EMT) employees that were called out due to the storm.

· Did the State of Iowa or Illinois declare a state of emergency?

· Obtain a map of the commuting area for the Facility:

· Identify areas from which employees made it to work.

· Identify areas from which employees failed to make it to work.

The union contends that the (names of employees) should be paid administrative leave for (Date/s) because they feel the winter storm was an “Act of God” because they contend the storm was general rather than personal in nature and that it prevented groups of people from reporting to work.

(List the other contentions/arguments made by the union)

Based on the facts and arguments presented by the union, I find that management has not, as alleged in its grievance, breached the terms and conditions of the National Agreement.

The union has failed to establish violations of the National Agreement with the requisite burden of proof required of the moving party in this contractual grievance. No evidence was presented that showed the decision to deny administrative leave was arbitrary, capricious or unreasonable.

No evidence was presented that established that the storm of (Date/s), constituted an Act of God within the meaning of the ELM language. Part 519.211 of the ELM defines Acts of God as involving community disaster such as fire, flood or storms. The union has not established in this case that the storm of (Date/s) constituted a “community disaster” which could equate to an Act of God.

The evidence proves that several employees did report for work. (Note leave this if true-delete if not true)

(Address each of the union’s contentions/arguments here)

The Postal Service has a liberal leave policy under these circumstances, and it is management’s position that the granting of annual leave would be appropriate in this situation.

It is well established by arbitral authority that not every storm is an Act of God, just that every storm does not create a community disaster. This well established principle is rooted in the legal definition of “Acts of God.” Applying these legal principles to the language contained in Part 519 of the ELM, Arbitrator Walt’s reasoning has been accepted as valid and applied by many other arbitrators. In Case No. C8C-4M-C 27999, Mr. Walt found:

“As a preliminary observation, the term “Act of God” is only partially defined in Section 519.211 of the Employee and Labor Relations Manual. To constitute an Act of God, an event or occurrence must involve a community disaster, such as fire, flood, or storms, and must be general in nature rather than personal in scope and impact. It must prevent groups of employees from working or reporting to work. But these two aspects do not fully explain or describe those events which constitute an Act of God.

The phrase Act of God has been defined and interpreted by many courts over the years. In general, it is a natural occurrence of extraordinary and unprecedented impact whose magnitude and destructiveness could not have been anticipated or provided against by the exercise of ordinary foresight. Northwestern Mutual Insurance Company v. Peterson, 572 p.2d 1023; 280 OR. 773 (1977). In reference to weather conditions, the term “Act of God” has been limited to only those events in nature which could not have been prevented by the exercise of reasonable care and foresight. Olan Mills, Inc. of Tennessee v. Canon Aircraft Executive Terminal, 160 SE.2d 735; 273 N.

An Act of God is an “occurrence due to natural causes against which ordinary skill and foresight is not expected to provide...”

It is an event in nature so extraordinary that the history of climatic variations in the locality affords no reasonable warning of their coming (underlining added). Corrington v. Kalicak, 319 S.W. 2dd 888 (1959; Mo. App.).

Applying the principles in Arbitrator Walt’s well written decision, Arbitrator McCallister held in case No. C1C-4B-C 4353:

“The Arbitrator understands the union’s vexation. The term, “Acts of God”, used in Chapter 519.211 is the root cause of dissatisfaction. The union believes the term, as used, simply denoted the type of situation being dealt with. As I understand the union’s argument, it tends to phrase it simply descriptive of a class of occurrence which, once established, requires application of Chapter 519.212 of the Employee and Labor Relations Manual. In essence, the union is asking the Arbitrator to look to the specifics of individual employee diligence in his attempt to get to work once it is established that a severe snowstorm occurred.

I respectfully disagree on several accounts. To begin, this grievance is not before me on a claim that the language in the Employee and Labor Relations Manual is vague and ambiguous. In the absence of such a claim, I must conclude the parties agree the language is clear and expresses the party’s intended meaning. Arbitrators look to the language in a manner in which words are used. They give words their ordinary and popular meaning. In the absence of any sign or implication that the term “acts of God” is to be used differently from its acceptable usage, Arbitrators will look to the acceptable usage for meaning of all words and phrases...

The generally accepted dictionary definition of a disaster is “an occurrence inflicting widespread destruction and distress.” Clearly, that definition requires a degree of impact higher than a singular fire, flood or storm. The words, fire, flood, or storm are examples of “Acts of God” which involve a community disaster. The language could not be clearer. A storm must in fact, involve “Acts of God” before administrative leave can be considered. Contrary to the suggestion that Arbitrators have extended the meaning of “Acts of God” beyond the language of Chapter 519 of the Employee and Labor Relations Manual, the context and usage of that term requires resort to its original accepted usage. As a well-known and consistently defined term, this Arbitrator concurs with the reasoning and decision of Arbitrator Walt in Case No. C8C-4M-C 27999. By adopting the term, “Act of God” the parties are bound to the higher standard of proof imposed by using a term whose usage is consistent and well defined. The generally accepted view is that an “Act of God” is defined as an extraordinary manifestation of nature which could not reasonably be anticipated or foreseen...”

In such administrative leave cases, the union has the burden of proving that the (Date/s) snowstorm was a community disaster. It is insufficient to prove that some employees were unable to come to work.

In an “Act of God” case in Columbus , OH , before Arbitrator Robert McCallister C1C-4F-C 29429, both the Governor and the Mayor of Columbus declared a state of emergency, yet administrative leave was denied. In this case, Arbitrator McCallister stated:

“The Arbitrator cannot support a line of reasoning which implicitly recognizes that any storm is an Act of God so long as groups of employees are prevented from coming to work and that their residences were a cross section of the community. There is simply no evidence the storm was not foreseen or not anticipated and that it inflicted widespread destruction in Columbus , Ohio .”

Under the conditions that existed in the area on (Date/s), the evidence does not support a finding that a widespread community disaster constituting an Act of God occurred.

Circumstances related to storms do not affect all alike, and blanket automatic awarding of administrative leave would give rise to some questions. What effort to get to work in the future would anyone exert? What would the attitude be of those employees that did come to work once they found out that those that did not report for work were granted administrative leave? As was noted earlier in this step 2 decision, (#) of the (#) employees that reported to work on (Date/s), resided out of town. (Give specifics for your particular circumstances)

The union has failed to establish that management was arbitrary or capricious in his/her) decision to not grant administrative leave to the grievant who failed to report for duty as scheduled. There were no employees that were told not to report for work. Employees that did call the post office were told to be safe and not to take any unnecessary risks to get to work. If mail was not available to be sorted or delivered, there were plans to do training for employees and have the carriers work on edit sheets and route books. Again, The Postal Service has a liberal leave policy under these circumstances, and it is management’s position that the granting of annual leave would be appropriate in this situation.

The union had the difficult burden to demonstrate that the snowstorm of (Date/s), constituted an event in nature so extraordinary that the history of climatic variations in the (Area) gave no indication that such conditions could occur.

Where the proofs to establish that the occurrence of a blizzard with resultant impassable roads prevented employees from reporting to work had never occurred in that area, or had occurred with such infrequency as to provide no reasonable expectation that such weather might occur again, it might well be an abuse of discretion under Section 519 of the ELM to deny Administrative Leave to directly affected employees.

Such storms are not new and uncommon to this area. This is Iowa , and in Iowa , snowstorms are not unprecedented, extraordinary occurrences. Such storms have affected this area in the past, therefore, it cannot be said that residents would have no reasonable expectation of the recurrence of a snowstorm.

The Postal Service realizes that the regional level arbitrations cited herein are not precedent setting, but rather serve as guidelines for the parties in their continuing relationship and provide information for them to use in resolving their grievances. They provide Arbitrators with an indication of where others are going in similar situations. Arbitrator Arthur Ross once said that “published awards are not binding on another arbitrator, but the thinking of experienced men is often helpful to him.”

The Alan Walt decision has given the Postal Service an understanding of arbitral history on how claims of “Acts of God” have been handled in the past.

Based on the arbitral authority presented herein, the evidence (or lack thereof) and the arguments presented by the union, I find that the union has failed to establish a contractual violation, therefore this grievance is denied.

(Manager’s Name)

Facility

Received by: ______

Steward’s Name Date

Enclosures: Arbitration Cites

Arbitration Cites

Attachment Arbitrator Arbitration #

A Robert McCallister C1C-4B-C 4353

B Robert McCallister C1C-4F-C 29429

C Alan Walt C8C-4M-C 27999