The bottom line here is that because the Jegal, contractual and regulatory mandates drive
the decision to create a rehabilitation assignment, it is not an Article 37 duty assignment.
The injury compensation regulations require that “every effort” be made to reemploy the
injured employee. The every effort mandate has been expressly codified in ELM Section |
546 and detailed in ELM Section 546.141(a). Therefore, rehabilitation assignments made
under this provision are not Article 37 duty assignments but rather are created and :
governed by totally separate and distinct dynamics and forces.

Article 37 duty assignments are created by management due to operational needs.
Rehabilitation assignments are created as a result of legal, contractual and regulatory
requirements. But for the obligations to the injured employee, the rehabilitation
assignment would not exist and would not be created under Article 37. Therefore,
rehabilitation assignments are not Article 37 duty assignments. :

Vi. 1 Established Injury Compensation Program Was A\ e

and It is Far Too Late To Argue that Rehabilitation Assignments are Duty
Assignments

As discussed above, Article 21, Section 4 requires Management io promulgate
appropriate Tegulations to comply with federal Jaw. These regulations can be found at
ELM Section 540. In 1979 the NALC filed a national level grievance challenging the
application of ELM S40 in that Letter Carriers injured on duty were being reassigned to
clerk craft positions “well beyond the installation that they worked in and on tours that
they—that were alien to them”. (See APWU Tab 5, page 13 and USPS Ex. 4)

The filing of this grievance by the NALC Jed to discussions with the Postal Service
regarding the regulations governing the application of the workers’ compensation
program. On October 26, 1979 the Postal Service came to an agreement with the NALC
regarding the injury compensation program. (See USPS Ex. 5)

Itis significant to note that this agreement was discussed with the APWU in advance and
the APWU concurred with the change to the regulations. Not only does the body of the


INTERPRETIVE ISSUE PRESENTED

As stated in the Step 4 denial (Joint Ex. 2) the interpretive issue heard at Step 4 and
appealed to arbitration by the AP WU is:

‘Whether the duties of a rehabilitation position created for an employee with work
restrictions due to an on the job injury must be posted for bid to all clerk craft
employees.

Additionally, after much obfuscation and discussion, the issue was sharply defined by the
arbitrator and acknowledged by all parties at the end of the second day of hearing as
follows:

I think we at least are understood we're dealing with the uniquely created
position, whether there’s an obligation there to post. (See Transcript for second
day of hearing at page 312, TR2-312)

ARGUMENT

As indicated above; the interpretive issue presented is predicated on the existence ofa
uniquely created rehabilitation assignment for an employee with work restrictions due to
an on the job injury. But for the employee’s on the job injury, the uniquely created
rehabilitation assignment would not exist and would not be posted for bid as a duty
assignment. :

L The Rehabilitation Assignments at Issue are Uniquely Created and Would Not

Exist But For the Obligation to Reassign the Injured Emplo

The rehabilitation assignments at issue are by definition uniquely created for employees
who were injured on the job and continue to have work restrictions. A uniquely created
rehabilitation assignment is therefore not an Article 37 duty assignment. It only exists as
a result of the need to reassign an injured employee. It is a uniquely created
rehabilitation assignment created under the provisions of Article 21, Section 4 and ELM



Concurrent with the abolishment of the uniquely created rehabilitation assignment, the _
vacant duty assignment the successful bidder previously held would probably be posted
as operational needs would dictate the filling of the now vacant duty assignment
Accordingly, the currently vacant duty assignment would be posted for bid and another -
successful bidder would then be placed in that job. The next subsequent vacant duty
assignment created by the next sequential job awarding would than have to be posted for
bid by all craft employees. This domino effect would create ongoing inefficiencies in the
work place. Even worse, the injured employee for whom the original rehabilitation
assignment was created for would be no closer to being reemployed.

In an attempt to reemploy the injured empoyee management would then create another
unique rehabilitation assignment. The process would then play itself out all over again as
the APWU would require that the new rehabilitation assignment be posted for bid. Mr.
Bauer testified that there are presently over 12,000 employees on rehabilitation
assignments throughout the country. (See TRI-153) The disruption this would cause to
operations nationwide would be monumental and would be disastrous to the injury

compensation program.

If the APWU wants to limit, change, alter or amend the established injury compensation
program it must do so in collective bargaining, not through arbitral fiat in rights
arbitration. 1 is far too late in the day for the APWU to challenge procedures they agreed
to in 1979.

Vil. The APWU’s Current Arguments Have Been Rejected In a Previous National
Asbitration Award :

This is not the first time the APWU has made the same identical Article 37 “duty
assignment” arguments in national arbitration. In National Case No. J90C-1J-C
92056413, (APWU Tab 8) Arbitrator Dobranski was presented with the same exact
argument that is the lynchpin of the APWU’s position in the case at hand. It was rejected
in its entirety and the grievance was denied.

12


UNITED STATES OF AMERICA
MERIT SYSTEM PROTECTION BOARD

OFFICE OF THE CLERK OF THE BOARD

Docket Numbers:

JAMES C. LATHAM, DA-0353-10-0408-I-1
RUBY N. TURNER, SF-0353-10-0329-I-1
ARLEATHER REAVES, CH-0353-10-0823-I-1
CYNTHIA E. LUNDY, and AT-0353-11-0369-I-1
MARCELLA ALBRIGHT, DC-0752-]1-0196-I-1

Appellants,

v.

UNITED STATES POSTAL SERVICE,

Agency. DATE: August 23, 2011

BRIEF
In response to the Board’s letter dated July 25, 2011 CONSOLIDATION
ORDER AND REQUEST FOR BRIEFING providing the parties a full and fair

opportunity to brief the following issues:

a TI Page


settlement expressly state that the changes were discussed with other unions and the other
unions were amenable to the changes, the testimony of Richard Bauer also confirmed
through p2rsonal knowledge that the APWU was involved in the agreement. (See TR1-
147) This testimony stands unsebuted. Additionally, Arbitrator Snow found that the
APWU was involved in this settlement and did not voice an objection at the time it was.
negotiated in 1979. At page 15 of Case No.H94N-4H-C 96090200 (See APWU Tab 5)
National Arbitrator Snow states:

Discussions between the parties ultimately produced the present language of ELM
Section 546.141(a). President Sombrotto’s (NALC National President) testimony
made clear that the parties anticipated that cross craft transfers would occur.
Moreover, the parties gave notice to other unions, specifically the APWU, that the
negotiations were occurring, and no one voiced any objection to the agreement
reached by management and the NALC on the language of ELM Section
546.141(a).

Testimonial and documentary evidence about the context of the decision to enact
ELM Section 546.141 (a) made clear that management agreed to make every effort
to assure that partially recovered current employees would not be assigned “alien”
tours of duty at distant installations. It is clear that a main purpose of the
negotiation was to give the Union and the affected employee a degree-of control
‘over how reassignment would impact partially disabled workers.

Clearly, the APWU was on notice that cross craft rehabilitation assignments would be
occurring. If the APWU felt that these rehabilitation assignments were in violation of the
National Agreement or that they were actually Article 37 duty assignments that required
posting in the clerk craft, the APWU should have raised those concems in 1979. To now

make such arguments is disingenuous.

Additionally, when the settlement langue was incorporated into the ELM in 1979 the
APWU was provided the changes pursuant to Article 19 and still did not raise an
objection or submit the issue to national arbitration. (See USPS Ex. 6) The reason is
obvious: the APWU agreed that such cross craft rehabilitation assignments were
necessary t0 acconunodate employees who were injured on duty. The APWU now finds
that position to be politically unpopular given the fact that due to mail processing


administered over the past 25 years across the country. Each witness testified that they.
were not aware of a single rehabilitation assignment being posted as a duty assignment
any where at any time. Mr. Bauer gave credible testimony regarding the establishiment
of the injury compensation program as embodied in ELM 540 and the discussions leading
up to the settlement of the current ELM 546.141(a) language. As Headquarters Injury
Compensation specialist he also reaffirmed the long standing national practice of not
posting rehabilitation assignments as Article 37 duty assignments.”

The APWU offered the rebuttal testimony of Cliff Guffey, Greg Bell and Jim McCarthy.
They did nothing to rebut the testimony of the Postal Service witnesses regarding
application of the injury compensation program. The fact that the Postal Service has
never treated a rehabilitation reassignment as a “duty assignment” remains unchallenged.
The APWU witnesses did testify that in their local installations they did from time to
time file grievances challenging the establishment of some, but not all, rehabilitation
assignments. .

In fact Mr. Bell testified that that not al] rehabilitation assignments would even trigger the
need to post a duty assignment. At TR2-259 he admits that “It’s not automatic that it
would be posted, no.” This is fatal to the APWU’s position that rehabilitation
assignments are always duty assignments. Apparently Mr. Bell is applying criteria that
are inconsistent with the APWU’s position in this interpretive case.

Similarly inconsistent, Mr. McCarthy first testified that every collection of assignments
must be posted as a ‘duty assignment if it totals 40 hours of work without exception. (See
TR2-270) He also engaged in an irrelevant dialogue regarding Article 13/30 light duty
assignments negotiated at his local office. This case of course does not involve an Article
13/30 assignment. As Mr. McCarthy acknowledged, Article 13/30 is only triggered by an
employee request. Jt is a separate process distinct from the injury compensation program.
: He then stated that he was not aware of any non-Article 13/30 grievances ever filed as a
result of a clerks being reassigned with the clerk craft. (See TR2-276) Surely, if every
collection of assignments that totaled 40 hours triggered the obligation to post a new

5


inefficiencies such as ongoing postings, repostings , abolishment of duty assignments and
the assignment of unassigned fulltime regular clerk into full time residual assignments,
without ever being able to assign an rehab injured employee into ar assignment under
ELM 546. Such an unnecessary administrative effort unrelated to the catalyst for such
effort, the need to assign an injured employee, was certainly never intended by the
parties. The APWU’s approach will lead to absurd results.

This interpretive case is predicated on the fact that these are uniquely created
sehabilitation assignments tailor made for the injured employee. If in fact the
rehabilitation assignments must be posted, it is almost certain that able bodied clerks
other than the injured employee would be awarded the bid. The injured employee would
have no right to even bid on the job created for the sole purpose of reemploying the
injured employee. (See Suriano testimony at TRI-1 79) In fact, the injured employee
would never be reassigned into the clerk craft until a job offer is made that would pass
the approval of the Department of Labor and the Office of Workers’ Compensation.
Such job offer could not be made if the assignment had to be posted within the gaining
craft for bid first. 1t would not be an available assignment until the bidding process was
completed. Therefore, the injured employee for whom the rehabilitation assignment was
created would not be able to bid for the assignment since they still have not been assigned
to the gaining craft.

Following the APWU logic, if the rehabilitation assignment was posted within the
gaining craft the successful bidder would be awarded the uniquely created rehabilitation
assignment. Because management has no need for the assignment other than to reemploy
the injured employee, if any other employee were the successful bidder the assignment
would be abolished at management's discretion pursuant to Article 37.1.F. An °
abolishment would then leave the senior bidder as an unassigned regular without an
assignment and would trigger “an elaborate set of procedures to follow if somebody’s.
position is abolished” according to APWU counsel at TR1-19.

11


assignment is determined by Management based on operational needs, not the needs of
injured employees. This distinction is critical.

This is not the first time the APWU has taken the position in a National case that Article
21 rehabilitation assignments are somehow superceded by other contractual provisions.
In Case No. G94C-4G 96077397 (See USPS Ex. 11) the APWU argued that
rehabilitation assignments trigger the notice requirements of Article 7.2, Employment and
Work Assignments. Nationa] Arbitrator Dobranski did not agree. In his award he draws
a distinction between assignments made for the purpose of Article 7 and those made for
the purpose of complying with the rehabilitation and injury compensation program. The
same distinction is present in this case.

In yet another National award (N8-NA-0003, Attachment A), Arbitrator Gamser was
presented the interpretive issue of whether injured employees reassigned out of their
normal schedule were entitled to overtime or out of schedule pay pursuant to Article 8 of
the National Agreement. In denying the grievance at page 12 Gamser concluded that the
Postal Service was obligated 10 make “every effort” to find suitable work for injured
employees. Accordingly, he held that the provisions of the F-21 and F-22 handbooks
disallowing overtime and out of schedule pay were not in conflict with Article 8. The
determining factor was that the reassignments were made pursuant to the iniurv
compensation program.

In the instant case, as in the Dobranski and Gamser cases, the rehabilitation assignment
was created as a result of the injury compensation contractual requirements.’ The
rehabilitation assignment did not exist before the employee was injured on duty and
would not have been created by management because no need for thé Article 37 duty
assignment existed.

It is undisputed that the reassignment was a uniquely create position created solely
because of management’s responsibilities to reassign or reemploy employees because of —
on the job injuries. The guidance provided in these previous national awards should be


The record establishes that previous to this recent action the Postal Service had
been meeting their obligation to provide medically suitable employment. However,
when their newly created “National Reassessment Process” (now obsolete) was
implemented within the Postal Service installation, they withdrew limited duty from
the appellant, and told her that they no longer had any limited duty work available.
Since by this action they have “disabled” the appellant, she is receiving OWCP wage
loss compensation. As part of the NRP the Postal Service has made a unilateral
decision that all restoration assignments may now consist only of work which they
have identified as “necessary and productive”, “operationally necessary”, and/or
meeting the Postal Service’s “operational needs”.

The creation and application of these new criteria are inconsistent not only with
the Postal Service’s long standing practice of creating limited duty assignments based
simply on the employee’s work limitation tolerances, but also contravene the clear
language of ELM 546.142(a) and 5 CFR 103(d).

By limiting their restoration obligation to jobs that fit their self-serving criteria,
they have not only violated their own personnel policy, but they-have also violated
both the appellants contractual and legal rights. They have improperly denied the
appellant her restoration rights and have failed to “minimize any adverse or disruptive

impact”.



“every effort” to reemploy injured on-duty employees. This legal mandate was
incorporated into the Collective Bargaining Agreement in Article 21, Section 4 which
further requires the employer to “promulgate appropriate regulations” which comply with
Federal law. The Postal Service promulgated ELM Section 546 in direct compliance
with Article 21, Section 4. ELM Section 546 was submitted to the APWU pursuant to
Article 19 and no objection was forthcoming. Jt is far too late in the day for the APWU
to now object to the injury compensation program that they did not take issue with at its
inception.

Additionally, implementation of the APWU’s position would lead to a continuous game
of musical chairs with rehabilitation assignments being created and abolished while the
injured employee is no closer to being restored to duty as required by law. This is an
absurd result and would lead to inefficiencies in mail processing operations.

CON SIO)

Uniquely created rehabilitation assignments created pursuant to Article 21.4.are-not
considered Article 37 duty assignments. There is no contractual requirement,to post such
rehabilitation assignments for bid under Article 37 and this interpretive grievance should
be dismissed in its entirety.

Submitted by:

hn W. Dockins, Esquire
bor Relations Specialist
U.S. Postal Service

April 15, 2002

18


Pursuant to this contractual requirement, the Postal Service issued ELM 540 which
contained the regulations complying with the applicable regulations of the Office of
Workers’ Compensation. These ELM regulations constitute the basis of the Postal
Service’s injury compensation program. The bottom line here is that because the legal,
contractual and regulatory mandates drive the decision to create a rehabilitation
assignment, it is not an article 37 duty assignment. The injury compensation
regulations require that “every effort” be made to reemploy the injured employee. The
every effort mandate expressly codified in ELM Sections 546 and detailed in ELM
Section 546.141(a). Therefore, Rehabilitation assignments made under this provision
are not Article 37 duty assignments but rather are created and governed by totally
separate and distinct dynamics and forces.

Article 37 duty assignments are created by management due to operational needs,
Rehabilitation assignments are created as a result of legal, contractual and regulatory
requirements. But for the obligations to the injured employee, the rehabilitation
assignment would not exist...

The Postal Services own position concerning the connection to Title 5 CFR,
Section 353 and the ELM, section 546 are that they exist and were created to conform
to each other. The agency’s “internal rules” intertwine and incorporate the language
and scope of all federal laws and regulations which contribute to the circumstances in

this case.

“3[Page,



(1) May a denial of restoration be “arbitrary and capricious” within the meaning
5 C.F.R. § 353.304(c) solely for being in violation of the ELM, i.e., may the
Board have jurisdiction over a restoration appeal under that section merely on
the basis that the denial of restoration violated the agency’s own internal rules?
Excerpt from USPS brief for Case No. E90C-4E-C 9507:
The Postal Service’s legal obligations to employees injured on duty begin with Title 5,
US. Code, Section 81 51, commonly referred to as the Federal Employees
Gonipensation Act (FECA). Section B of Section 8151 authorized the Office of
Personal Management (OPM) to issue regulations concerning the administration of
injury compensation programs. Pursuant to this authority, OPM issued Title 5, CFR
Section 353. Section 353.301 subpart (d) states “The agencies must make every effort
to restore an employee in circumstances in each case.”
As aresult of this legal mandate the parties negotiated Article 21, Section 4which
states:
Injury Compensation
Employees covered by this Agreement shall be covered by Subchapter I of
Chapter 81 of Title 5, and ant 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.

: 2|P age


followed. The APWU has failed to show why the Dobranski and Gamser rationale
should be overruled.

'V. Article 37 Duty Assignments and Article 21 Rehabilitation Assianments are

Separate istinct

As discussed above, management has the exclusive right to create, abolish or revert
Article 37 duty assignments. Such Article 37 duty assignments are driven solely by
management's operational needs. This is not true for rehabilitation assignments.
Rehabilitation assignments are created as a result of legal, contractual and Tegulatory
mandates. ‘

The Postal Service’s legal obligations to employees injured on duty begin with Title 5,
U.S. Code, Section 8151. This is commonly referred to as the Federal Employees
Compensation Act (FECA). (See USPS Ex. 1) Section’B of Section 8151 authorized the
Office of Personal Management (OPM) to issue regulations concerning the’
administration of injury compensation programs. Pursuant to this authority, OPM issued
Title 5, CFR Section 353. (See USPS Ex. 2) Section 353.301 subpart (d) states “The

agencies must make every effort to restore an employee in circumstances in each case.”

As a result of this legal mandate the parties negotiated Article 21, Section 4 which states:
Injury Compensation
Employees covered by this Agreement shall be covered by subchapter I of
Chapter 81 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.

Pursuant to this contractual requirement, the Postal Service issued ELM Section 540
which contained the regulations complying with the applicable regulations of the Office
of Workers’ Compensation. (See USPS Ex. 3) These ELM regulations constitute the
basis of the Postal Service’s injury compensation program,


effort” meant returning employees to work without consideration of what constitutes
productive employment.

It has also been established in the written record in National arbitration cases
(Case No. E90C-4E-C 9507) whereas the Postal Service themselves argued that its
“make every effort” obligation required it to offer work for which there was no
operational necessity. The Postal Service put these arguments in a written brief when a
grievance was filed by the APWU asking that a bid be posted for the work a letter
carrier was performing in the clerk craft. The Postal Service defended the fact that it
. had not posted the work for bid by arguing that the limited duty work had no
operational necessity and that the position was only created out of its contractual and
legal obligations. The Postal Service cannot make simultaneous and conflicting
arguments according to whatever suits its self-interest at the moment. Arguing in one
forum that it has a legal obligation to provide what it calls “make-work” and then turn
around in another forum and argue that it does not.

CONCLUSION

The Board has jurisdiction and the denial of restoration is “arbitrary and
capricious” within the meaning 5 C.F.R. § 353.304(c) solely for being in violation of
the ELM. The ELM, Section 546.142, details the Postal Service’s obligation of

making every effort towards assigning the employee to limited duty.



The issue in the Dobranski case dealt with temporary rehabilitation assignments of rural
carriers into the clerk craft. One of the arguments made by the APWU was that “Article
37, Section 1.B defines duty assignments and Article 37, Sections 3.A.1(a) and (b)
require these regularly scheduled duties, full-time or part time, to be posted to the clerk
craft.” (See APWU Tab 8 at page 12) The instant case deals with a city carrier-with a
permanent rehabilitation assignment, the Dobranski case dealt with with a rural carrier
with a tempory rehabilitatin assignment. However, this minor distinction does nothing to
resuscitate the merits of the APWU arguments. The APWU Article 37 “duty
assignment” argument fails just the same in both cases.

The Postal Service joined issue with the APWU on the Article 37 “duty assignment”
argument at page 21 of the Dobranski award and argued that it had no merit. In making
his ruling Arbitrator Dobranski painstakingly addressed every argument presented by the
APWU including the Article 37 “duty assignment” argument. He states at page 33:

Finally, in reaching my conclusion in this case, I have carefully considered and
examined all of the arguments put forth by the APWU, including the applicability
of Articles 37 and 30, and whether specifically addressed above or not, and find
them without merit. For all these reasons, the grievance in denied.

Therefore, the identical issue that the APWU has put forth in the instant case has already
be joined, presented, argued and denied by a previous National Arbitrator in a nearly
identical case. Clearly, the APWU position in this case is without merit. Orice again, the
instant arbitrator should not disturb established controlling National arbitral precedent.
The APWU’s position has been previously rejected and this grievance must be denied.

IX. The Creation of the Rehabilitation Assignment Does Not Impair PTF Clerk

The APWU places heavy reliance on the notion that uniquely created rehabilitation
assignments somehow impair PTF seniority rights. This simply is not true for two
reasons; ]. Assuming, anigendo, that the rehabilitation assignment is an Article 37 “duty

assignment”, PTF’s can not bid on Article 37 duty assignments, and 2. the rehabilitation

13


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 Response to
the Request for Briefing was sent by the undersigned by First Class Mail to
the following:

MSPB

William D. Spencer

Clerk of the Board

5" Floor Mail Room

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

FAX No.: (202) 653-7130

APPELLANTS

a N. Turmer

-Arleather Reaves

Cynthia E. Lundy

James C. Latham e

Marcella Albright

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Again, it was my understanding that the Board has previously held that when an
Agency is bound by agency policy, regulation, or contractual provision requiring them
to offer limited duty, but they fail to do so, such action constitutes a prima facie
demonstration of an “arbitrary and capricious” denial of the employee’s restoration
rights.

The facts of this case establish that the Postal Service violated their own
personnel policy, violated federal regulations, and violated the CBA when they
refused to provide the appellant with medically suitable employment. Therefore, their
failure to restore the appellant to employment as a partially recovered employee with a

compensable injury is “arbitrary and capricious”.

Respectfully Submitted,

if
db Vd Date: August 23, 2011

Geraldine L. Manzo

Representative for Appellant Ruby Turner

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(2) What is the extent of the agency’s restoration obligation under the ELM, i.e.,
under what circumstances does the ELM require the agency to offer a given
task to a given partially recovered employee as limited duty work?

Pre-1979 ELM language that only placed employees into “established jobs” was
replaced with new ELM language that provides “limited duty” work that is available
within or without the employee’s craft, work facility, and regular work hours. The
words “maximum efforts” were replaced with “must make every effort” to make the
ELM conform to the law. And the reference to “productive” work was eliminated
from the ELM provisions.

For approximately 28 years the parties have interpreted the “make every effort”
language to mean that the Postal Service would offer limited duty to injured
employees without regard to the work’s operational necessity. Limited duty work
would range from scanning duties, quality checks, manual sortation of letter mail,
answering phones, all the way to carrying one’s assignment with accommodation.
This is verifiable through the numerous limited duty job offers generated by the Postal
Service and their own NRP handout. The Postal Service verified that it provided all
types of work, including what it refers to as “make work”, in an NRP handout
introducing the program. On one of the pages from the handout the Postal Service
acknowledges that, historically, it always returned the employee to an assignment,

whether it be “make work or necessary work.” For nearly 3 decades, “make every

~ 4[Page


operational needs there are fewer day shift job assignments. However, the APWU may

not escape the consequences of its prior actions.

The NALC settlement agreement became ELM Section 546.141(a) and is the mandatory
pecking order used to place injured employees into rehabilitation assignments. If the
APWU felt that this regulation violated the National Agreement the APWU was
obligated to object at that time. They failed to do so. As Arbitrator Aaron stated in Case
No. HIC-SD-C 2128 (APWU Tab 9) at page 6:

It is obviously too late in the day for the Union to challenge the proposition the
FECA regulations can augment or supplement reemployed persons’ contractual
rights. The language of Article 21, Section 4 of the 1981-1984 Agreement,
previously quoted, makes clear that the rights of such persons can be augmented
or supplemented by federal regulations, with which the Postal Service must
comply. If the Union objects to the changes in the relevant revisions introduced
by the Postal Service in purported compliance with government regulations, it
may challenge them in accordance with the procedures suet forth in Article 19 of
the Agreement, previously quoted. This it failed to do. Moreover, it raised no
objection to the statement in Gildea’s letter of 26 July 1979 to Newman,
previously quoted, which clearly anticipated the reason for the action taken by the
Postal Service in the case of Akins.

Clearly, the APWU did not object to the detailed language in ELM 546.141 (a) that
mandates creating rehabilitation assignments, therefore the APWU is obligated to honor
the established injury compensation program. If the APWU’s “duty assignment”
argument js upheld they wil} have successfully circumvented and thwarted the
employer's ability to reemploy injured employees.

Vi. The APWU’s Position Leads to Absurd Results and Will Greatly Impede the

Established Injury Compensation Program

The contract must be read as a whole, The interrelationship of Article 37 duty
assignments and Article 21 rehabilitation assignments must be viewed in the context of
the real world. Accordingly, an analysis of the impact of the APWU position in this case
is very insightful. If uniquely created rehabilitation assignments must be posted for bid
as Article 37 duty assignments for all clerk craft employees, it will lead to unproductive

10


“duty assignment” as Mr. McCarthy testified, it would apply to clerks being reassigned to
rehabilitation assignments as well. Yet, Mr. McCarthy testified that he was not aware of
a single such clerk “duty assignment” grievance ever being filed.

Itis significant to note that none of the APWU sebuttal witnesses were at the National
level when then 1979 ELM 546.141 (a) injury compensation language was agreed upon.
It is apparent from their collective testimony that a few renegade APWU locals were
unhappy with the agreed upon ELM language and hence, occasionally filed grievances to
quell dissatisfied clerks who did not understand the agreed upon pecking order to
reemploy injured employees, This is understandable but does not negate the established
injury compensation program. If the current APWU leadership is dissatisfied with the
status quo the place to change it is at the bargaining table, not in rights arbitration.

The single NALC witness gave unrebutted and credible testimony regarding how the
Postal Service and NALC have historically applied the duty assignment language. Mr.
Brown’s testimony dove tailed with that of the Postal Service’s witnesses. Rehabilitation
assignments within the carrier craft were not, and are not, treated as duty assignments and
are not posted for bid. (It was stipulated that the NALC contractual duty assignment
language is identical to the APWU duty assignment language, TR2-230)

The witness testimony weighs greatly in favor of the Postal Service’s position in this
matter. ,

XI. Prior Regional/Area Arbitration Supports the Postal Service .

It is well established that Regional/Area arbitration awards do not control any subsequent
National arbitration. Regional/Area awards may be cited for persuasive value only. The
rational for this is obvious; interpretive issues of general application must be decided at
the national Jevel with the full involvement of the national parties.

A review of prior Regional/Area awards reveals that several grievances regarding the
creation of rehabilitation assignments have been decided by field arbitrators. Most of

these cases deal with Jocal facts surrounding the “uniqueness” of the rehabilitation

16


TABLE OF CONTENTS

Brief: Pgl
Response to Issue (1) Pg 2-3
Response to issue (2) Pg 4-5
Conclusion, Pg 5-7
Postal Service NRP Handout Exhibit — A

Postal Service Brief for (E90C-4E-C 95076238) Exhibit — B 1-18


Section 546. When the injured employee vacates the uniquely created rehabilitation
assignment it will no longer exist. To the extent that the rehabilitation assignment in
question overlaps with an existing Article 37 duty assignment is a matter to be decided on
the particular fact pattern of each individual case. However, the APWU's position in this
interpretive case is that every 40-hour a week rehabilitation assignment created for
injured employees must be posted for bid in the clerk craft. The APWU’s position is
unreasonable and can not be supported.

The simple fact of the matter is that no Article 37 duty assignment has been created. A
uniquely created rehabilitation assignment tailored to the employee’s work limitation’s
exists. Such an assignment is created pursuant to Article 21, Section 4, Injury
Compensation, and is not a “duty assignment” under Article 37.

Tl. ement has the Exclusive Ri; eate Duty Assignment

Itis clear that the right and responsibility of hiring, staffing and assigning employees
rests with management. Inherent in this exc)usive right is the ability to determine what
duties and responsibilities are-needed to move the mail at any given time in any given
operation. Hence, the discretion to create (or not to create) full-time Article 37 duty
assignments rests exclusively with management. Article 3 of the National Agreement
States in part:

The Employer shal] have the excJusive 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;

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;


Both sections unambiguously state that it is “a management decision” to abolish or revert
a duty assignment. ' Additionally, APWU counsel acknowled ged that itis management’s .
choice to revert or abolish Article 37 duty assignments. (TR1-19,20) Common sense
dictates that if it is a management decision to abolish or revert that it must also be a
management decision to create Article 37 duty assignments. This is consistent with the
language of Article 3. If management did not have to exclusive right to create Article 37
duty assignments it simply would exercise its ability to abolish a newly created duty
assignment that was not wanted. Therefore, contractual language and common sense
dictate that management has the exclusive right to control the existence of any Article 37 -
duty assignment in the work place.

IV. The Rehabilitation Assignment Would Not Have Existed “But For” the

Obligation to Find Work for the Injured Employee, Therefore No Article 37
Duty Assignment Exists

Because this is a national interpretive issue of general application we need not address

every possible fact scenario regarding the creation of reassignments for injured

employees. Indeed, the APWU has acknowledged that for the purpose of this interpretive

issue that the reassignment was in fact a uniquely created rehabilitation assignment. ( See -

TR2-312.) ,

This alone is fatal to the APWU’s case. If it is a uniquely created rehabilitation
assignment it is by definition not an Article 37 duty assignment. The rehabilitation
assignment would not exist but for the obligation to reassign the injured employee.
Management never created a duty assignment pursuant to Article 37. Management
reassigned an injured employee pursuant to Article 21.4 and ELM Section 546 as part of
the established injury compensation program. Had there been no injured employee the
rehabilitation assignment would not exist. The decision to create a new Article 37 duty

* Ofcourse this decision can be grieved by the Union. For instance, issues of fact application as to the
existence of the duty assignment after it was abolished are routinely grieved. Similarly, the issue of
whether the injured employee's reassignment was actually a uniquely created assignment or a pre-existing
duty assignment would be subject to review based on the particular facts of each case. .


Theresa M. Gegen

United States Postal Service

Law Department — Southwest Office
P.O. Box 22708

Dallas, TX 75222-7078

William D. Bubb, Esq.
United States Postal Service
475 L’Enfant Plaza, SW
Washington, DC 20260-1150

Dated: 8/23/2011

hile

Appellant’s Representative //)
Geraldine L. Manzo

7901 Oakport Street, Suite #2300
Oakland, CA 94621



* assignment would not exist but for the obligation to reemploy the injured employee and -
would never have otherwise been created. In any event the PTF’s seniority rights are not

impaired.

The APWU also argues that if the rehabilitation assignment were to be posted as an
Article 37 duty assignment that it would eventually lead to a residual vacancy that may
lead to the conversion of a PTF to full-time. (See TR1-22) This argument is speculative
and assumes that management would not abolish the original uniquely created ©
rehabilitation assignment when an able bodied clerk bids into it. As the rehabilitation
assignment was tailored to the needs of the injured employee it would serve no purpose
to allow a healthy employee to work such an assignment. It.would surely be abolished.
The able bodied craft employee would become an unassigned regular subject to be

__ assigned to a residual vacancy prior to any consideration of converting a PTF to regular.
If there was a bona fide operational need for a craft duty assignment it would have been

created long before the rehabilitation assignment was created.

Regardless, the residual vacancy argument is not before this arbitrator. (See discussion
and agreement of the parties at TR2-311-312) It is only offered to show the further
weakness of the APWU logic,

x. Past Practice of the Parties Favors the Postal Service

The Posta] Service offered credible testimony from James Ulicnik, Charisse Newberry,
Mary Lou Pavoggi, Theresa Hantzsche, Richard Bauer, Janice Smith, David Wichterman
and Bil] Shane on how the established injury compensation program has been

14


APPELLANTS REPRESENTATIVES

JR. Pritchett

Postal Employee Advocates
86 East Merrill Road
McCammon, ID 83250

James A. Pena
3212 Villa Pl.
Amarillo, TX 79106

Thomas William Albright

AGENCY REPRESENTATIVES

Joshua T. Klipp, Esq.

United States Postal Service
Law Dept., Pacific Area Office
1300 Evans Avenue, Room 217
P.O. Box 883790

San Francisco, CA 94188-3790

Andrew C. Friedman, Esq.

United States Postal Service

Law Department

222 South Riverside Plaza, Suite 1200
Chicago, IL 60606-6105

Ayoka Campbell

United States Postal Service
2901 Scott Futrell Drive
Charlotte, NC 28228

Earl L. Cotton Sr., Esq.

United States Postal Service

Law Department

3980 Dekalb Technology Parkway, Suite 840
Atlanta, GA 30340-2778


assignment, i.e. whether or not the assignment existed as an Article 37 duty assignment
prior to the creation of the rehabilitation assignment. As previously stated, the present
interpretive issue is based on the stipulation that the rehabilitation assignment is in fact a
uniquely created assignment. Therefore, the arbitrator need not delve into that thorny
issue of fact based application. Accordingly, those prior field arbitrations that deal with
that issue offer no insight to the present interpretive issue.

However, as often happens interpretive issues evolve in the field before they are declared
interpretive and appealed to national arbitration. This is the case here. With that in mind,
one particular field case warrants close attention as it was a virtual dry run of the
APWU’s interpretive issue arguments as set forth in the instant case. In fact, the APWU
advocate in the field case (Mr. Guffy) was also a witness for the APWU in this case.

In Case No. W7C-5R-C 18309 (Attachment B), Arbitrator McCaffree was presented with
the same arguments that, the APWU presented in the instant interpretive case. At page 26
he states:

- Any violation. of Article 37.3.A.] can be disposed.of without lengthy
consideration. Section A and Section A.1. each refer to “newly established and
vacant Clerk Craft duty assignments” or “all newly established craft duty
assignments.” Thus where Section 546 provides for an assignment pursuant to .
medically defined work restrictions of a specific employee and duties are
collected as found in these cases, no clerk craft duty assignment per se was
established. Rather, as the Employer argues, these were special duty assignments
mandated by law. None would exist were it not for the presence of an injured
worker whose duties are determined by medically defined work limitations. . .
The Employer did not violate Article 37.3.A by a failure to post any of the jobs to -
which the injured workers were assigned under Section 546 of the ELM.

Clearly, Arbitrator McCaffree considered the same arguments set forth in the instant case
and soundly rejected them.

8 [ARY

The rehabilitation assignment created pursuant to ELM Section 546 would not exist but
for the injured employee. The Postal Service was mandated by Federal law to make

17


UNITED STATES POSTAL SERVICE
POST HEARING BRIEF

Case No. E90C-4E-C 95076238

Dates of hearing: October 16, 2001 and January 23, 2002

Submitted by: John W. Dockins, Esquire
: Labor Relations Specialist
USS. Postal Service

ELH [7 8


Accordingly, management has the exclusive right to determine when and-where duty
“assignments are needed in order to maintain the efficiency of the operations entrusted to
it, Other provisions of the Agreement such as Article 7.3 do address the ratio of full-time
10 part-time employees in certain size offices and the criteria for converting part-time
employees to full-time. However, nothing in the Agreement impedes management’s
exclusive right to assign employees to work when and where they are needed and create
Article 37 duty assignments to maintain efficiency of the operations.

This is in sharp contrast to rehabilitation assignments created under Article 21, Section 4.
As discussed in greater detail below, Management has legal, contractual and regulatory
obligations to make “every effort” to reemploy the injured employee. ,

I. Management Has the Exclusive Right to Abolish and Revert Article 37 Duty
Assignments
Hand in hand with the exclusive sight to create Article 37 duty assignments is the
exclusive right to abolish or revert Article 37 duty assignments. Creating, abolishing and
reverting Article 37 duty assignments are all part and parcel of the process of determining
the methods, means and personne] by which such operations are to be conducted as
contemplated in Article 3.

Article 37 clearly states that management has discretion.to abolish or revert. Article
37.1F states: “Abolishment. A management decision to reduce the number of occupied
duty assignment(s) in an established section and/or installation”. .

Article 37.1.G states: “Reversion. A management decision to reduce the number of
positions in an installation when such position(s) is/are vacant”.