Having found that the Postal Service violated the National Agreement in this matter, this
would normally resolve the grievance in full. However, the Postal Service raised several issues
that should be addressed.

The Postal Service argued that it took its actions relative to the Grievant's situation
within its authority under Article 3 and that the Postal Service had the sole authority to decide
what work was appropriate to assign to the Grievant. This argument cannot be sustained,

Article 3 sets forth rights reserved to Postal Service Management, but those Tights pertaining to
limited duty requirements take precedence by operation of Article 2, Article 19 and the
applicable handbooks and manuals and Article 21.4. To allow Article 3 to grant Management
carte blanche as the sole authority would nullify contractual provisions to which the parties have
agreed and that may be redressed through the grievance-arbitration procedure.

The Postal Service also argued that the grievance is substantively outside the jurisdiction
of the negotiated grievance procedure, particularly as it relates to remedy. I find that this
grievance pertains directly upon the application of Postal Service regulations (ELM 546.142, EL-
307 and EL-505) as incorporated under Article 19. As such, Article 15 is an appropriate
mechanism to enforce those rights granted to injured employees and the obligations the Postal
Service has to comply with those regulations. Further, provisions of the National Agreement, as
expressed at Article 15.1 of the JCAM and Article 2.3, specifically allow for grievances
containing the i: issues brought in the instant grievance. It is true that the OWCP/DoL retain
exclusive jurisdiction over injury compensation claims filed under the FECA. However, this
grievance does not seek to overturn an OWCP determination or to force any such determination.
The true nature of this grievance involves violations of the National Agreement and the
appropriate remedy to resolve those violations. Should the OWCP accept the Grievant’s pending
claim for injury compensation, the OWCP will make the necessary adjustments, if any are
needed, to the Grievant’s compensation claim before that forum. However, the claim with the
OWCP is outside this grievance and has no bearing on the decision in this Award.

The Postal Service argued that the vehicle the Grievant used in making his deliveries was
no longer available and implied that there were no other accommodating vehicle in the Cheyenne
fleet. The evidence does not support this argument. The Grievant is not completely limited from
operating a LLV. He may do so as long as he has no more than four (4) stops to make ona

particular run. The Postal Service presented no evidence to show how or in what way the

33 |

| PAGE Pel


standing mail deposit boxes, He stated that he made all the collections except for a large
insurance business and the State’ s administrative office because the mail volume in those boxes
exceeded his lifting limitations. The Grievant testified that he would work the hot case mail; ie,
mail sorted to the wrong route, usually performed by a clerk. He explained that if the carrier for
that route had left the office before the, héi case mail had been sorted he would take the mail to
the cartier for delivery. .The Grievant stated that most days there was some hot case mail to take.
The Grievant also testified that he would deliver cuts to the appropriate carrier for delivery. He
added that this happened almost everyday. The Grievant testified that he also would deliver
certified and registered letters o customers if the carrier on those routes lacked the time to make *
the delivery. He explained that this task was performed a few times a week, not everyday. The
Grievant further testified that he conducted inventories of collection boxes on a quarterly basis,
which would take between three (3) to four (4) days to complete. This work involved inspecting
the boxes and their labels, to make sure they were in safe working order, to be sure the scanned
bar was correct and whether the box needed paint. The Grievant stated there are forty (40) boxes
throughout the City.

The Grievant testified that he was assigned by a supervisor to conduct growth
management duties. He explained that when the City had a new development established he
would meet with the developers and rural and City officials, assist in making new addresses in
the county, decide what type of delivery the structure would receive and make up the schemes
for the new additions or changes of addresses. The Grievant estimated that while he performed
this duty he was involved in thirty (30) new developments. One such development consisted of
750 homes. The Grievant testified that this duty involved three (3) to four (4) hours a day in the
past but was reduced as a result of the affects of the poor economy.

The Grievant testified that he performed other duties on an ad hoc basis, such as taking
pictures of damaged or vandalized collection boxes and answering the telephone, although he
was not in the office much of the time. He stated that he was doing something eight (8) hours a
day and never sat around. He added that he pre-assigned duties every day.

The Grievant testified that after he received the August 28, 2009, letter he was given
thirty (30) days administrative leave because of his military veterans status. He added that after
the thirty (30) days expired he used his leave. The Grievant stated that since October 24, 2009
he exhausted his leave and has had no income.

° pace # LO.


CERTIFICATE OF SERVICE

Ruby N. Turner v. United States Postal Service
Docket No. SF-0353-10-0329-I-1

This is to certify that a true and correct copy of the Appellants Petition for
Review was mailed by the undersigned by First Class Mail to the following:

MSPB

The Clerk of Board

Merit System Protection Board
1615 M Street, NW,
Washington, DC 20419

USPS REPRESENTATIVE

Robert E. O’Connell

Postal Service Attorney

Law Dept., Pacific Area Office
Embarcadero Postal Center
390 Main Street, Suite 740

San Francisco, CA 94105-5001
Telephone No.: (415 ) 764-3600
Facsimile No.: (415) 764-3680

ppellant’s Representativ
Geraldine L. Manzo
7700 Edgewater Drive, Suite #656
Oakland, CA 94621

Dated: 10/27/2010


REGULAR ARBITRATION
In the Matter of the Arbitration

between Grievant: Craig Boyce

Cheyenne, WY
and USPS No. E06N-4E-C 09370199
NATIONAL ASSOCIATION OF NALC No. 555082909

(
)
)
UNITED STATES POSTAL SERVICE —( Post Office: Main Post Office,
)
(
)
(
LETTER CARRIERS, AFL-C1O )

BEFORE: Kathy L. Eisenmenger, J.D., Labor Arbitrator

APPEARANCES:
For the U. S. Postal Service: Shirley T. Pointer
For the Union: Coby Jones ;
Place of Hearing: Cheyenne, WY
Date of Hearing: "February 18, 2010!
AWARD:
Date of Award: April 22, 2010

PANEL: Colorado/Wyoming or Arizona
. Award Summary

The grievance is sustained. ‘The Postal Service violated the National Agreement and
applicable Postal Service regulations incorporated under Article 19 when the Service failed to
provide Limited Duty to the Grievant, Craig Boyce.

t
Kathy : . Eisenmenger, 1 ;

' The parties elected to submit post-hearing briefs. Briefs were scheduled to be postmarked no
later than March 18, 2010. The Postal Service's brief was received on March 18, 2010, and the
Union's brief was delivered to this Arbitrator on March 20, 2010. I closed the arbitration record
on March 20, 2010. :

PAGE # ,L


‘

on

Grievant's limited use of a LLV would preclude him from making any deliveries. Additionally,
PTF Osterman testified that he uses a van to make his Express Mail runs, thercby showing that
the Cheyenne fleet owns at least one (1) van.

The Postal Service also argued that it is more efficient to have other employees, such as
clerks, rural carriers and supervisors, deliver Express Mail than for the Grievant to accomplish
the delivery and that the Express Mail delivery is not an exclusive duty to the Letter Carrier craft,
These arguments are basically irrelevant when assessing limited duty work to be assigned to an
injured employee. ELM 546.142 expressly allows for the assignment of duties from “other
crafts.” Also, EL-307, Section 131, states that “.. . the Rehabilitation Act requires the Postal
Service to consider ways to change the manner of doing a job to allow a qualified person witha
disability to perform the essential functions of a particular job.” Therefore, the Postal Service is
expected to look to different ways to accomplish work that would meet the medical restrictions
of the injured employce, and ELM 546.142 expands the obligation to work that is outside the
core duties of the employee’s occupational craft. This is what the “reasonable accommodation”
obligation is all about. If efficiency of operations were the primary factor, it would effectively
eviscerate the Postal Service’s obligation to make reasonable accommodation and to “make
every effort toward assigning the employee to limited duty consistent with the employee’s

_Medically defined work limitation tolerances.”

The Postal Service seems to assert that assigning the Grievant to accomplish collections
from collection boxes is “make work.” As described in detail above, this assertion cannot be
sustained. First, the duty is one needed to fulfill the mission of the Postal Service. Secondly, the
evidence shows that the Grievant is capable of making all of the collections except for two (2)
stops (out of forty total) that are located close to the MPO. The Postal Service presented no *
evidence to show that the manner in which collections were made by the Grievant prior to
August 28, 2009, posed an undue hardship on the Service’s opcration.*" Once the Grievant is
returned to performing this duty, as ordered below, the TE primarily responsible for it may be

3! The EEOC has defined undue hardship to mean that the accommodation would be too difficult
or too expensive to provide, in light of the employer's size, financial resources, and the needs of
the business. An employer may not refuse to provide an accommodation just because it involves
some cost. An employer docs not have to provide the exact accommodation the employee or job
applicant wants. If more than one accommodation works, the employer may choose which one to
Provide.

34

PAGE Ped


The Postal Service is hereby ORDERED to return ‘the Grievant to work status upon
teceipt of this Award. Because the Grievant’s placement in a non-work status resulted from
contractual and regulatory violations, the Grievant is entitled to “make whole” relief that
includes appropriate back pay and restoration of benefits he lost as a result of the erroneous
‘action of August 28, 2009. However, the Grievant received pay during a period of thirty (30)
days of administrative leave. Therefore, in making the computations of back pay the Postal
Service may properly omit the thirty (30) day period from the back pay distribution. Otherwise,
the Postal Service is hereby ORDERED to make the Grievant whole for all lost wages, salary,
benefits and other employment issues the Grievant suffered as a result of the erroneous action.
taken on August 28, 2009. The Postal Service is referred to decisions published by the National
Labor Relations Board for guidance relative to back pay, restoration of benefits, etc., that are
used when the employer is ordered to reinstate a discharged employee. In essence, the Postal
Service is required to reconstruct the Grievant’s employment as though the erroneous action of
August 28, 2009 never occurred and make the corresponding restoration of pay and benefits to
him.

The Postal Service is also hereby ORDERED to rcturn the Grievant to the limited duty _
assignments he was performing prior to the August 28, 2009, action, to include at a minimum
those duties listed at JX 2, p. 25 of the arbitration record. However, this ordered remedy does
not prechude the Postal Service from re-assessing the Grievant’s situation, upon his return to
work, provided the re-assessment is accomplished in strict compliance with ELM 546.142 and
related obligations. In doing so, the Postal Service is ORDERED to cease and desist from
utilizing the erroneous standard of “necessary” work as the Postal Service has improperly
restricted its meaning. :

Other remedies requested by the Union are not granted.

The Arbitrator will retain jurisdiction of the effectuation of the above-ordered remedies
should issues arise in this regard.

Date: April 22, 2010 Ls tis age
- i thy F. Eisenmenger, J.D.

Labor Arbitrator

° pace 3G


cost than regular mail and for which the customer agrees in consideration for the special
attention. Other specific duties, such as making rounds to pick up the mail customers have
placed in convenient collection boxes and to deliver cuts and hot mail to carriers already on their
routes, accomplish in a direct manner the furtherance of the Postal Service’s mission to collect
and deliver the mails. Therefore, these duties fall within the above interpretation of “tangible
product.”

Additionally, some tasks may have an indirect affect on the accomplishment of the Postal
Service’s mission but are nevertheless to be found as tangible products. The inspection of
collection boxes ensures the working order of those receptacles and that the collection times
posted on them are accurate. This task provides access of the mail flow to customers to deposit
their mail in a safe place and for the customer to confidently rely on the collection time. Further,
the tasks performed relative to growth management contribute to the mission of the Postal
Service in its service to be provided to the customers who will eventually take up residence in
the new developments. Without systematic and planned action, postal service to the new
customers could suffer from undue disorganization and untimely delivery and collection of their
mail.

The Postal Service focused in the grievance on the elaborate efforts it conducted in
searching for limited duty work for the Grievant and sought to have the grievance denied on the
basis that the Postal Service had observed the various steps of the pecking order under ELM
546.142. However, the process undertaken in the NRP assessment, which led to relieving the
Grievant of duties he had performed without incident, was based on a faulty premise. The Postal
Service simply refused to accept that the work the Grievant had been doing for the previous
decade was acceptable for the purposes of assigning limited duty work under ELM $46.142.
Throughout its entire process, the Postal Service through its agcits used an erroncous and
improper standard of “necessary” work by which to evaluate the available work tasks; i.e., that
whatever work could be found must satisfy the definition of “necessary” work the Postal Service
had created unilaterally.

The standard of necessary work is faulty on many counts. ELM 546.142, the primary
governing regulation in the Grievant's case, does not require the high standard of “necessary”
work, as the Postal Service defines it. The regulation is devoid of any criteria or standard of
work that constitutes “limited duty,” except to the extent that such work must be within the

PAGE wGt ,

31


employee’s craft within the employce’s regular schedule and as
near as possible to the regular work facility to which the employee
is normally assigned.

Handbook EL 307
Reasonable Accommodation, an Interactive Process

13 Applicable Laws
Section 131 The Rehabilitation Act

The Rehabilitation Act prohibits discrimination against qualified
employees . . . with disabilities in the federal goverment,
including the United States Postal Service.®

. The Rehabilitation Act also imposes an obligation on the Postal
Service to find reasonable ways to accommodate a qualified
individual with a disability. In other words, the Rehabilitation Act
requires the Postal Service to consider ways to change the manner
of doing a job to allow a qualified person with a disability to
perform the essential functions of a particular job, . . ..

eee

Section 542 Reassignment as a Reasonable Accommodation

Reassignment is a form of reasonable accommodation which may
be required if no other accommodation will allow the employee to
perform the essential functions of the position and the proposed
reassignment does not violate seniority provisions of a collective
bargaining agreement. Barring undue hardship, reassignment will
be required as a reasonable accommodation of last resort if it is _
determined that no other reasonable accommodation will permit
the employee with a disability to perform the essential functions of
his or her current position.

Handbook EL-505
Injury Compensation

Limited Duty Assignment Guidelines
Basic Considerations

The USPS should minimize any adverse or disruptive impact on the employee in

assigning limited duty, (ELM. 546.141)
Consider the following when making limited duty assignments:

PAGE a G_


B. ‘To hire, promote, transfer, assign, and retain employees in

~ positions within the Postal Service and to suspend, demote, discharge, or take

other disciplinary action against such employees;
c To maintain the efficiency of the operations entrusted to it;

D. To determine the methods, means, and personnel by which such
operations are to be conducted;

ee Oe

Article 5
. Prohibition of Unilateral Action -

The Employer will not take any actions affecting wages, hours and other terms
and conditions of employment as defined in Section 8(d) of the National Labor

. Relations Act which violate the terms of this Agreement or are otherwise

inconsistent with its obligations under law.

ee

Article 13
Assigument of III or Injured Regular Workforce Employees

JCAM, Page 13-10

Limited Duty work is work provided for an employee who is temporarily or
permanenily incapable of performing his/her normal duties as a result of a
compensable illness or injury. The term limited duty work was established by
Title 5 Code of Federal Regulations, Part 353 — the O.P.M. regulation
implementing 5 U.S.C. 8151(b), that portion of the Federal Employees’
Compensation Act (FECA) pertaining to the resumption of employment following
compensable injury or illness. USPS procedures regarding limited duty are found
in Part 540 of the Employee & Labor Relations Manual (ELM). The Office of
Workers’ Compensation Programs has the exclusive authority to adjudicate
compensation claims and to determine the medical suitability of proposed limited
duty work.

: Article 15
Grievance-Arbitration Procedure

Section 1. Definition
A grievance is defined as a dispute, difference, disagreement or complaint

between the parties related to wages, hours, and conditions of employment. A
grievance shal} include, but is not limited to, the complaint of an employee or of

PAGE HO _


Paes

Issues
The parties agreed to the following statement of the issue: “Did the Postal Service
violate the National Agreement when it failed to provide Limited Duty to the grievant? If so,
what is the appropriate remedy?”

Pertinent Contractual Provision:

Article 2
Non-Discrimination and Civil Rights

Section 1. Statement of Principle

The Employer and the Union agree that there shall be no discrimination by the
Employer or the Union against employecs because of race, color, creed, religion, -
national origin, sex, age, or marital status.

In addition, consistent with the other provisions of this Agreement, there shall be
no unlawful discrimination against handicapped employees, as prohibited by the
Rehabilitation Act.

eee

Section 3. Grievances

Grievances arising under this Article may be filed at Formal Step A of the
grievance procedure . . ..

JCAM 2.3 .... Article 2 also gives letter carriers the contractual right to object
to and remedy alleged violations of the Rehabilitation Act through the grievance
procedure. Postal Service guidelines concerning reasonable accommodation are.
contained in Handbook EL-307, Guidelines on Reasonable Accommodation,

weet

Article 3
Management Rights

‘The Employer shall have the exclusive right, subject to the provisions of this
Agreement and consistent with applicable laws and regulations:

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


injured employee’s medical restrictions and the circumstances in performing the work (work
location, hours of work) should minimize any adverse or disruptive impact on the employee.
From an evidentiary standpoint, the criteria of “necessary” work has been created in
contravention of the applicable contractual, statutory and regulatory provisions that apply to
situations such as the Grievant’s. A careful review of all such provisions fails to reveal that the
Postal Service is permitted to raise the bar of what constitutes limited duty to the heightened
standard of “necessary” work, at least to the extent the Postal Service applied it in an improper
and narrow manner. By operation of this standard, the Postal Service failed to make a good faith
effort to the place the Grievant at any level of the pecking order under ELM 546.142.

The burden of persuasion next shifts to the Union to show that work was available for the
Grievant at the level of the pecking order above the level at which Management placed him. In
this case, the Grievant was placed at none of the levels of the pecking order but was relieved of
duty under the erroneous application of the “necessary” work standard. Nevertheless, the Union
demonstrated with credible and persuasive evidence that work did indeed exist for the Grievant
to perform. Local Management acknowlcdged that the Grievant had performed those duties
listed in JX 2, p. 25 for a sustained period and on a consistent basis. Moreover, those duties
continued to exist after Management relieved the Grievant of those duties and placed him in a
non-work status. Those duties were merely re-allocated to other personnel and for reasons that
are not supported by the Postal Service’s obligations to injured employees (to prefer to have
PTFs and/or TEs or supervisors or clerks perform those duties rather than the injured employee
for efficiency reasons). The evidence shows that local Management properly accommodated the
Grievant's medical restrictions with tangible work for his limited duty assignments prior to
August 28, 2009. The evidence fails to show that local Management could not continued to
assign the Grievant the work he had been doing for many years after his on-the-job injury. Thus,
the Union has met its burden of production to show that there existed legitimate work under
ELM 546.142 and related regulations and statutes that should have been assigned to the Grievant
as limited duty. Likewise, the Union has shown that the Postal Service violated the National
Agreement under the above-cited provisions when the Service ceased the Grievant’s limited duty
assignments and caused an adverse and disruptive impact on him. Relieving the Grievant from
proper limited duty and placing him in a position of non-pay and loss of corresponding"
employment benefits constitutes the ultimate adverse and disruptive impact.

32
H PAGE w3h


ee $

The procedures for current employees cover both limited duty and rehabilitation
assignments. Limited duty assignments are provided to employees during the
recovery process when the effects of the injury are considered temporary. A
rehabilitation assignment is provided when the effects of the injury are considered
permanent and/or the employee has reached maximum medical improvement.
Persons in permanent rehabilitation positions have the same rights to pursue
promotional and advancement opportunities as other employces.

Section 546.142

When an employee has partially overcome the injury or disability, the Postal
Service has the following obligation:

a. Current Employees. When an employec has partially overcome a
compensable disability, the Postal Service must make every effort toward
assigning the cmployce to limited duty consistent with the employee’s medically
defined work limitation tolerances (see 546.611). In assigning such limited duty,
the Postal Service should minimize any adverse or disruptive impact on the
employee. The following considerations must be made in effecting such limited
duty assignments: .

1. To the extent there is adequate work available within the
employec’s work limitation tolerances, within the employee’s
craft, in the work facility to which the cmployce is regularly
assigned, and during the hours when the employee regularly
works, that work constitutes the limited duty to which the
employee is assigned.

2: If adequate duties are not available within the employee’s work
limitation tolerances in the craft and work facility to which the
employee is regularly assigned within the employee’s regular
hours of duty, other work may be assigned within that facility.

3. If adequate work is not available at the facility within the
employee's regular hours of duty, work outside the employee's
regular schedule may be assigned as limited duty. However, all
reasonable efforts must be made to assign the employee to limited
duty within the employee’s craft and to keep the hours of limited
duty as close as possible to the employee's regular schedule.

4. An employee may be assigned limited duty outside of the work
facility to which the employee is normally assigned only if there is
not adequate work available within the employee’s work limitation
tolerances at the employee’s facility. In such instances, every
effort must be made to assign the employee to work within the

| PAGE aS


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October 27, 2010

ae. .
mo Bj
The Clerk of the Board 23
Merit System Protection Board : o*
1615 M Street, NW., a rm
Washington, DC 20419 aE
RE: Appellant’s Petition for Review Form BS =
Ruby N. Turner vs. US Postal Service oe

Docket No.: SF-0353-10-0329-I-1 &

1, Is this petition being filed on or before the decision finality date?
Yes.

2. Have you been denied any procedures during your appeal to the
MSPB to which you believe you were entitled? Examples of
procedures include holding a hearing, submitting evidence, and
calling witnesses. If so, what procedures were denied and why do
you believe you were entitled to them? Did you raise this matter with

the judge? Please describe how not having this procedure has
harmed you.

Yes. I believe the procedure I was denied was the calling of
witnesses. (Appellants Pre-hearing submissions dated
3/30/10) Yes, the issue was raised with the judge during
our pre-coniference hearing. I believe the appellant was

entitled to have these witnesses testify to refute the Agency’s
testimony.

3. Do you have any documents or evidence that are important to your
appeal that were not filed with the judge before the record closed? If
so, you should attach these documents and evidence. Explain why
you did not submit these documents or evidence to the judge, and
why it is important for the board to consider them. Explain why you

. believe that these documents or evidence should change the result in
your case. (The Board will not normally consider documents or
evidence which were not submitted to the judge'unless you can
show that the evidence did not exist before the record closed or that

you could not have been reasonably expected to have found the
evidence before the record closed.}

Iam enclosing a copy of an Arbitration Settlement (E06N-4E-
C 09370199 / 555082909) citing that the Agency is in
violation of a number of laws, coded regulations and ©
contractual provisions by unilaterally implementing the
verbiage of ‘operationally necessary tasks/work and funded
positions” which led to relieving the appellant of the duties
she had been performing without incident. The Arbitration
Award is dated “April 22, 2010” and was not available during


category on a full time basis. Lastly, the examining physician opined that the Grievant had
reached maximum medical improvement. (Joint Exhibit [JX] 2, pages [pp.] 55-57).

The record contains a number of rehabilitation assignments made for the Grievant as a
result of his limitations due to his on-the-job injury. On or about April 13; 2001, the Postal
Service issued the Grievant a “Reassignment Job Offer” as a Modified Letter Carrier with work
hours from }:00 am. to 9:30 a.m. The reassignment offer included the duties to analyze S999
mail, to analyze Quality Carrier/Quality Case mail, to analyze Machine rejected and residue
mail, to assist with firm delivery confirmation scanning, to review mail pieces/parcels in OTR
for accuracy, to answer telephones, to take hold mail to customers in the lobby, to review firm-
holdouts for accuracy and other duties within his physical restrictions. The Grievant accepted
this modified letter carrier job but objected to the shift hours as creating a burden on him and his
family and as a form of punishment because of his injury. JX 2, pp. 30-32.

On or about March 12, 2007, a supervisor certified that the Grievant was performing
duties under a “Rehabilitation Position” as a city carrier that included delivery of Express Mail,
delivering of hot case mail and growth management but no casing or carrying mail. JX 2, p. 29,
On or about April 9, 2008, Management at the Cheyenne MPO made the Grievant an Offer of
Modified Assignment (Limited Duty). The proposed duties for the limited duty work involved
one (1) to three (3) hours to deliver Express Mail, up to thirty (30) minutes to deliver hot case
mail and to perform growth management up to three (3) hours. The offer noted the physical
requirements for the modified assignment as lifting up to twenty (20) pounds for three (3) hours
intermittently, simple grasping for one (1) hour intermittently and no casing or delivery of mail
except Express Mail and no driving an LLV for more than four (4) stops per day. The Offer
pertained to the Grievant’s OWCP claim. The Grievant accepted the offer on April 25, 2008. IX
2, p. 28 : :

On August 28, 2009, Supervisor Marie Pitt issued the Grievant an “Employee Leave
Information Letter, Complete Day” that informed him he was being sent home inasmuch as
Management’s search for “necessary tasks” meeting his medical restrictions in all crafts and on ,
all tours within the Grievant’s facility and throughout the Local Commuting Area could not
identify “any available necessary tasks within [the Grievant’s) medical restrictions.” JX 2, p. 23.
Mr. Paul Davis, a regular letter cartier and the Local Branch President for the Union, was present
when the Grievant received his letter. Mr. Davis testified that the Grievant was told there was no

i pace # O


aS

— Match the limited duty job as closely as possible to the regular job. Do not
make the limited duty job more desirable than the employee’s regular job.
— The limited duty work environment should be similar to that of the regular job.
If the limited duty environment is more attractive, it may seem like a reward. If
the environment is less attractive, it may seem like a punishment.
— The limited duty job should have similar pay. To put an injured employee in a
job that pays more than the regular job creates a problem, especially if the
employee performs well. To put an injured employee in a lower paying job
(i.e., ajob that requires fess skill) makes poor use of resources.
~— Little or no training should be required. Don’t expect supervisors to train
someone in a skilled assigoment when they know he or she will only be there
a short time.
— The assigument should result in a tangible product and should not be a

» “make work” job.
—- The assignment should be a function where temporary additional help is
useful. This will help ensure that injured employces make a useful
contribution to the organization.

Statement of Facts

The Grievant, Mr, Craig Boyce, has been employed with the Postal Service since March
31, 1984. He sustained an injury on November 1, 1999, while handling mail containers and
working as a City Letter Carricr, Documentation pertaining to his injury describes it as
involving a sprain or strain to the ligament, muscle and/or tendon in his right elbow. The
Grievant applied for injury compensation benefits with the Office of Workers Compensation
Program (OWCP) administered by the U.S. Department of Labor (DoL). The OWCP accepted
his claim, but the claim was closed as of April 26, 2004. The record indicates that the Grievant
did not lose any work time due to his injury.
: In August 2000, almost a year after the Grievant's injury, he underwent a functional
capacity evaluation by a private medical concern. The examining physician found that the
Grievant was unlimited in his sitting, walking, standing, twisting and operating a motor vehicle
with wrist activities. The physician recommended limitations of reaching no more than two (2)
to two and a half (2.5) hours per day, including above the shoulder; repetitive use of his right
elbow no more than four (4) to five (5) minutes at one time and no more than fifteen (15)
minutes per hour nor greater than a total of one and a half (1.5) hours per an cight (8) hour work
day; pushing and pulling up to thirty (30) pounds and no more than ten (10) pound lifting with
his right arm at one time. The physician also found the Grievant employable in a light duty work

PAGE a7


the Union which involves the interpretation, application of, or compliance with
the provisions of this Agreement or any local Memorandum of Understanding not
in conflict with this Agreement.

JCAM, Section 15.1

Broad Grievance Clause. Article 15.1 sets forth a broad definition ofa
Srievance. ... Other types of disputes that may be handled within the grievance
procedure may include:

° Alleged violations of postal handbooks or manuals (see Article 19);

eke

. Disputes concerning the rights of ill or injured employees, such as...
compliance with the provisions of ELM Section 540 and other regulations
concerning OWCP claims. ... However, decisions of the Office of
Workers’ Compensation Programs (OWCP) are not grievable matiers.
OWCP has the exclusive authority to adjudicate compensation claims, and
to determine the medical suitability of proposed limited duty assignments.

eRe

Article 21
Benefit Plans

Section 4, Injury Compensation

Employees covered by this Agreement shall be covered by Subchapter I of
Chapter 8) of Title 5, and any amendments thereto, relating to compensation for
work injuries. The Employer will promulgate appropriate regulations which

comply with applicable regulations of the Office of Workers’ Compensation
Programs and any amendments thereto.

Pertinent Postal Service Regulatory Provisions

Employee and Labor Manual (ELM)
546 Reassignment or Reemployment of Employees Injured on Duty
wade
Section 546.14 Disability Partially Overcome

Section 546.141 General

; ; al
pace


used to accomplish other duties. This holds true for the other duties local Management allocated
to other personnel when the Grievant was placed in a non-work status. What was once allocated
to those employees on or after August 28, 2009, must now be re-allocated to the Grievant upon
his return to work on limited duty.

The Postal Service asserted that the duties performed by the Grievant prior to August 28,
2009, belonged to other personnel and have been retumed to them per their job descriptions,
This assertion tums the Postal Scrvice’s obligations to provide limited duty assignments under
ELM 546.142 and in reasonable accommodation for the Grievant’s medical restrictions on their
heads. Contrary to the Postal Service’s assertion, the re-allocation of duties from some personnel

; to the injured employee squarely complies with the Service’s obligations to provide reasonable

accommodation and to assign limited duty. The Postal Service’s assignment of those duties that
occurred long before August 28, 2009, complied with those obligations. The Postal Service
presented no legitimate reasons for not continuing to assign the Grievant those duties. To the
contrary, the Postal Service’s withdrawal of those limited duty assignments constituted violations
of those obligations owed to the Grievant.

Additionally, the fact that some of the duties the Grievant performed prior to August 28,
2009, were done on an inconsistent basis is not the test by which those duties may be assigned to
an injured employee or withheld from the employee. Nothing precludes the Postal Service from
assigning work that occurs on an ad hoc basis. The test involves that the work is available and ,
that it is within the injured employee’s medical capabilities (in addition to the consideration that
it minimize any adverse or disruptive impact on the employee). The evidence of record shows in
this case that delivery of hot case mail, cuts and certified and registered mail comes available
with a high degree of frequency and is within the Grievant’s medical restrictions. Thus, this type
of work qualifies for limited duty under ELM 546.142 for assignment to the Grievant. Inasmuch
as the work must be performed, it does not constitute “make work.”

Award

The grievance is sustained. The Postal Service violated the National Agreement and
applicable Postal Service regulations incorporated under Article 19, cited above, when the

Service failed to provide Limited Duty to the Grievant, Craig Boyce.

35

PAGE Pe oe


(LWOP), premiums/ deductions for dental coverage and
union dues are no longer being paid. In as such, all dental
costs must be paid out-of-pocket. Likewise, the union dues

have to be paid.

Lillia. ballet hee Yee Me th d

ature of Appellant's Non-. Attoyh thoyhey Representative Date”

Ruby N. Turner, Appellant

Geraldine L, Manzo :
Appellant’s Non-Attorney Representative
7901 Oakport Street, Suite 2300
Oakland, California 94621

Telephone: (510) 325-0562

Fax: (510) 834-9902

ATTACHMENTS

Arbitration Award —- EO6N-4E-C 09370199 / 555082909 Pages 1-36


The Union submitted a recent regional arbitration award that interpreted the M-01706
Settlement agreement, as follows:

What the Settlement language reveals is that nothing has changed in the

obligation of the Service to provide limited duty and rehabilitation jobs to injured

employees. Further, there have been no new criteria developed by the Service for

assigning limited duty jobs. Also, the Settlement reaffirms that ELM 546 and

CFR Part 353 are controlling when it comes to limited duty assignments and the

requirements and extent of the obligation placed on the Service. The terms of the

Settlement clearly support the Union position that the Service was employing new

and different criteria (or its implementation) in the Grievant's situation; criteria

different from what had been done in the past. The “necessary work” and

“operational need” standards used by the Service as justification where it has not -

been shown fo have been applied in the past is not in conformance with the clear

understandings derived from the Settlement between the Parties, ”!°

The Union argued that the National Award of Arbitrator Bernstein established that
“Section 546.14 must be read to impose a continuing duty on the Service to always try and find
limited duty work for injured employees in their respective crafts, facilities and working hours.
The fact that such duty might not be available at any point in time does not mean that it will
never become available, because there are many changes that can take place.”"! The Union
submitted three (3) regional awards that up the interpretation that Section 546.141 to provide
limited duty on a continuing basis,"?

The Union asserted that the Postal Service failed to meet its legal and contractual
obligations to the Grievant, specifically those contained in ELM 546.142. The Union observed
that the Postal Service complied with the regulation for almost ten (10) years until August 28,
2009. The Union contended that the Grievant's medical restrictions had not changed and that the
existence of the work he had been doing for the past decade had not changed. The Union posited
that the only change was local Management’s implementation of the NRP. The Union claimed
that Management used a narrow and very restrictive definition of “necessary work” that blinded
Management from adhering to its obligations under ELM 546.142. The Union further asserted

that the M-01706 National Pre-arbitration Settlement puts to rest any notion that Management

° Case Nos. BOIN-4B-C 06189348/55606 (LaLonde, 2010).

"' Case No. HIN-1J-C 23247 ( 1987) at p. 14, Arbitrator Bernstein continued by stating that,
“Therefore, the Service must be prepared to modify a limited duty assignment outside of the
employee’s craft, facility or hours, when work within those conditions becomes available.” Jd.
” Case Nos. W7N-5N-C 22042/15773 (Barker, 1991); Case No. WON-5TC- 862 (Abernathy,
1993); Case No. E98N-4E-C-01097720 (Freitas, Jr., 2002)

e PAGE Pris


make a claim under the FECA. A number of laws, coded regulation, and contractual provisions
bear on the exercise of the provisions of ELM 546.142. Therefore, the Grievant's release from
work per the Postal Service’s August 28; 2009 letiet (ee Pages 8-9 above) must be reviewed
under all the applicable regulations and egal’ requirements current at the time of the Postal
Service’s action. Of pertinent relevance here is the requirement under ELM 546.142 that the
Postal Service must “make every effort toward assigning the employee to limited duty consistent
with the employee’s medically defined work limitation tolerance” and to “minimize any adversé
or disruptive impact on the employee.” Additionally, EL-505, Exhibit 7.1 states that “The
assignment should result in a tangible product and should not be a ‘make work’ job.” -

The crux of this grievance rests on what constitutes appropriate duties, tasks or work that

the Postal Service must assign to the injured employee so as to comply, at least at the minimum
degree, with ELM 546.142 and EL-505. Unfortunately, ELM 546.142 and EL-505, Exhibit 7.1
do not define what type of work is involved. ELM 546.142 speaks in terms of “limited duty”
and EL-505 refers to “tangible product” and prohibits “make work.” This language is not
particularly helpful by itself and requires further reference and interpretation.

The reference to tangible’ product in the EL-505 seems misplaced. The Postal Service is
not a manufacturing entity: it produces no real product as that term is commonly used in the
industrial relations lexicon. The Postal Service, as its name suggests, provides postal services to
its customers; i.e., the delivery and collection of mail, the sale of postal products such as stamps
and postage, the rental of mail boxes, etc. In absence of real tangible products made by the
Postal Service, I find the interpretation of “tangible product” to consist of specific work tasks a
postal employee would perform in the furtherance of the mission of the Postal Service. The
examples are too many to articulate in a regional arbitration award, or perhaps in any forum.
However, using the above interpretation, I find that the delivery of Express Mail to constitute a
tangible product as intended under EL-505, Express Mail involves a customer's desire for a
special and time-sensitive mail delivery for which the customer pays a premium postage. Thus,
the delivery of Express Mail is a specific work task that employees perform in the furtherance of
the Postal Service’s mission to its public customers. Likewise, the delivery of certified and
registered mail consists of a tangible product that requires specific work tasks an employee could
perform that fulfils the mission of the Postal Service. Similar to Express Mail, the customer’s
purchase of certified or registered mail service requires special treatment of the piece at a higher

30
l PAGE #8. LA


Yes, 5 US C 8151, OPM regulations and ELM 546.142. The
ELM specifically states in pertinent parts that, when an
employee has partially overcome the injury or disability, the
Postal Service has the following obligation: “The Postal
Service must make every effort toward assigning the
employee to limited duty consistent with the employee’s
medically defined work limitation tolerance...To the extent
that there is adequate work available within the employee’s
work limitation tolerances...” (Appellant’s Pre-hearing
Submissions)

The Agency’s unilateral language of “Operational Necessary
Tasks / Work and Funded Positions” is in direct violation of
these regulations as the regulations utilize the term
“adequate work.” Had the Agency abided by these
regulations, the Appellant would still be at work.

6. Are there any other reasons why the initial or addendum decision
was wrong? If so, what are those reasons?

Yes. The Judge failed to acknowledge that uninjured mail
handler employee Barbera McCuller and clerk craft employee
Maria Santos were performing work, eight hours a day, five
days a week, that the Appellant is able to perform and that
their performarice of these duties are in violation of the
Collective Bargaining Agreement (contract), article 7.

7. What action (relief or remedy) do you want the Merit System
Protection Board to order in this case? Why do you believe that you
are entitled to this relief or remedy?

Restoration, Reasonable Accommodation, Restore Leave, Not
to be held accountable for any overpayments made by the
USPS, OWCP and/or, EDD beginning February 11, 2010,
reimbursement of all dental fees incurred beginning
February 11, 2010, back pay for union dues and disability
insurance.

We believe that the Appellant is entitled to this action as the
Agency: Failed to assess me correctly under the guidelines of
the NRP; Incorrectly utilized unilateral language when
implementing NRP; Refused to allow me to continue to work
in conjunction with my modified assignment when the work
continued to exist after February 11, 2010; Improperly
identifying sub-duties of a bid assignment as “make work”;
Falsely stating that the sub-duties of scanning and PARS
mail were being absorbed by the employee’s with bid
assignments in the respective sections; Utilizing mail
handlers and supervisors to perform the work assigned to
clerks; As the Appellant is on Leave Without Pay status


the previous MSPB Appeal process. But all arguments within
the Arbitration award were raised during the hearing.

4. Did the initial or addendum decision incorrectly decide any
important facts that were presented to the judge? If so, describe
what important facts were incorrectly decided or were not
considered. Explain why that should change the result of your case.

I believe the judge failed to consider the importance of ELM
546 and its verbiage (Appellant’s Response to
Acknowledgement Order, TAB #15); The Agency
incorrectly assessed the appellant as an employee whose
medical restrictions are permanent / Maximum Medical
Improvement (MMI), under the NRP guidelines of the limited
Duty Employees (Those with temporary medical restrictions)
(Appellant’s Response to Acknowledgement Order,

TAB #6); The Agency offering no proof of

Headquarters ever approving the OP&DC to begin assessing
MMI employee’s, such as the appellant, prior to/or on
February 11, 2010; The Agency, specifically the San
Francisco and Sacramento offering no proof of e-mails being
sent to each of the Associated Offices in their district to
conduct a work search; The Agency offering no proof that
they sought any part-time (less than eight hours) of work for
the Appellant; The Agency's repeated and continual usage of
the terms “Complete Day No Work Available” and “Negative
Response Required” when sending e-mails to conduct an
alleged work search; The immediate responses of the
managers at the Associated Offices (Appellant’s Response
to Acknowledgement Order, TAB #7); The fact

that supervisors and mail handlers are performing clerk craft
duties; After stating that they had no work for the Appellant
in the section she was assigned to prior to being removed,
the Agency offered modified assignments to other injured
employee’s in the same section (Appellant’s Pre-hearing
Submissions, Exhibit A, B, C, D1 -2)

Had the Judge considered the importance of the
aforementioned and the lack of credible evidence presented
by the Agency, the Appellant would have been returned to
work.

5. Did the initial or addendum decision apply the wrong law or apply
the law incorrectly? If so, what law should be applied and how? For
example, did the decision fail to properly consider a specific law or
regulation or another case that has been decided by a court or bya
Board? If you answer “Yes” your explanation should refer to the
specific law, regulation, or case. Explain how application of the right
laws should change the result of your case.


necessary work available for him. Mr. Davis further stated that the Grievant had not been
apprised prior to the issuance of the letter of the action. The parties stipulated at the Formal A
grievance process that the National Reassessment Process (NRP) had been implemented at the
Cheyenne Main Office. Joint Exhibit (JX) 2, page (p.) 2. Mr. Davis filed the informal grievance
and the Step A grievance on behalf of the Grievant on September 9, 2009. ‘The grievance alleged
violations of the parties’ Joint Contract Administrative Manual (JCAM) and National
Agreement, Articles 2.1, 3, 5, 13.6, 14.3.C, 15.1, 19, 21.4 and postal tegulations/guidelines EL-
307, EL-S05, ELM 546.11, ELM 546.14, Title 4 Chapter 81 of the United States Code (USC),
Title 29 of the USC (the Rehabilitation Act of 1973) and M-[0}1550.

* The document M-01500 constitutes a Pre-arbitration settlement dated October 8, 2003 at
the parties’ National level to resolve the issue whether Management violated Article 41.2.B.4. of
the National Agreement when a part-time flexible (PTF) city letter carrier was taken off a “hold-
down” assignment to provide work to a full-time city letter carrier on limited duty. The parties
agreed to the following:

Full-time employees when on limited duty as a result of a job-related illness or

injury, may “bump” a PTF on a “hold down” assignment (or portion of hold down

assignment) only if the duties on the “hold down” assignment are included in the

writien/verbal (see ELM 545.32) limited duty assignment and there is no other

work available to satisfy the terms of the limited duty assignment.

The Grievant testified that he had performed a variety of duties prior to his receipt of the
August 28, 2009, letter. The list is contained at JX 2, p. 25. His Express Mail duties involved
sorting the Express Mail after the first dispatch arrived between 10:00 a.m. and 10:30 a.m. He
added that he did this each morning unless he was given delivery cuts to take to a route or routes.
He added that a regular letter carrier did not take the Express Mail because that type of mail did
not arrive until after the carriers had left the office for their deliveries. The Grievant stated that
his Express Mail deliveries took on an average of three (3) to four (4) hours per day, sometimes
up to five (5) hours per day and had to be done by 3:00 p.m. He further explained that he would
drive outlying areas for distances of at least 100 miles a day and sometimes up to 150 miles per
day. The Grievant testified that maybe once a month the office would receive an Express Mail
picce that he could not deliver because it exceeded his twenty (20) pound weight limitation. The
Grievant also testified that he performed pick-up and collection duties on an average of two (2)

, hours per day. He explained that he would take the collections from about twenty (20) free~

- pace t B_



to the National Level Settlement agreement dated January 28, 1997, IX 2, p. 144." See also,
SCAM, page 13-11; SX 2, p. 86. The cited provisions states as follows:

ELM 546.14 specifies the steps that must be taken in secking limited duty work in
order to cnsure the assignments are minimally disruptive to the ill or injured
employee. The Step 4 Settlement G9O0N:4G-C 95026885, January 28, 1997 (M-
01264), specifically provides that the provisions of ELM 546.141 (currently ELM
546.142) are enforceable through the grievance/arbitration procedure.

The Union also referred to traditional industrial relations sources for the proposition that
doubts as to arbitrability should be resolved in favor of proceeding with arbitration resolution.
The Union asserted that Articles 3 and 5 of the National Agreement also provide for the

‘arbitration of violations of applicable laws and regulations. The Union cited regional arbitration
awards that have granted remedies in cases similar to the Grievant’s. In an award rendered by
Arbitrator Edna E. J. Francis, the arbitrator held the issue of remedy was within her authority,
stating in. pertinent part: : :

.. Under those circumstances {that limited duty was available but denied in
violation of policy], to state that the grievant received compensation because of
the finding of the OWCP that he was “totally disabled” is to pervert the facts.
The truth is that the grievant received compensation because he was not afforded
limited duty in accordance with his contractual rights ~ and, therefore, was denied
the right to continue his regular salary and benefits and, therefore, was forced
again to obtain injury compensation. If the limited duty had been continued, as
required, reinstatement of his injury compensation would not have been necessary
and the grievant would not have received compensation from the OWCP or been
placed in a LWOP status (with the consequent loss of leave benefits and regular

salary),
As remedial relief, the Union seeks that the Grievant be returned to work and made whole
for all lost wages and benefits; including but not limited to any loss of sick and annual leave, any
lost holiday pay, and any lost contributions to the Thrift Savings Plan. The Union also seeks
economic remedies due to the Grievant's financial harm by awarding one and a half (1.5) times

° M-01264 (“[W]e agreed that the provisions of ELM 546.14 are enforceable through the
provisions of the grievance/arbitration process. Whether an actual violation occurred is fact[-
based and suitable for regular arbitration if unresolved.”).

® Case No. W7N-5C-C-29751 (Supp. 1 992), pp. 28-29.

my PAGE BEY