Theresa M. Gegen

United States Postal Service

Law Department - Southwest Office
P.O. Box 227078

Dallas, TX 75222-7078

Dated: August 24, 2011

Jib © Stee

Kéith E. Secular


14 E90C-4E-C 95076238

The Postal Service argues that the APWU's position
leads to absurd results and would greatly impede the established
injury compensation program. If, as the APWU asserts,
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. Moreover, becausa management has no need
for the assignment other than to reemploy the injured employee,
if some other able-bodied employee were the successful bidder,
the assignment would be abolished at management's discretion
pursuant to Article 37.1.F. These actions, as well as other
actions triggered by them in a domino-like effect, would create
ongoing inefficiencies in the work place, and the injured
employee would be no closer to being reemployed.

The Postal Service stresses that the APWU's current
Article 37 duty assignment argument was made and rejected in a
national arbitration case decided by Arbitrator Dobranski in
1998, Case No. J90C-1J-C 92056413. That case involved temporary
rehabilitation assignments of rural carriers into the clerk
craft, but the APWU's Article 37 argument was essentially the

sama.

The Postal Service further insists that creation of
the rehabilitation assignment in this case did not impair PIF
clerk seniority rights. Assuming, for the sake of argument,
that this is an Article 37 duty assignment, PTFs cannot bid on

such assignments. Moreover, in that case, the assignment would


10 ES90C-4E-C 95076238

The requirement in Section 546.142a that employees
xeassigned into the Clerk Craft must be credited with seniority
in accordance with Article 37 of the APWU National Agreement.
also means that the reassigned letter carrier's status must be
determined by the employee's relative seniority within the unit.
This employee had no seniority in the Clerk Craft, yet she was
assigned to a full-time job with favorable hours and days off.
Application of Article 37 also is expressly required by Sections
546.21 and 546.221.

The APWU argues that Section 546,222 cannot justify
creating a unique position and then reassigning an employee into
it in violation of the seniority and posting requirements of
Article 37. What the Postal Service did here -- contrary to
Section 546.222 -~ undisputedly impaired the seniority rights of
PTF clerks under Article 37. If the assignment had been posted
for bid, there ultimately may have been a residual full~time
regular vacancy that a PIF clerk could have exercised seniority
to convert into it. Tha Postal Service's action in this case,
the APWU urges, is analogous to the assignment of supervisors to
the NALC bargaining unit as full-time regular employees, which
National Arbitrator Snow held violated the seniority right of
PIF letter carriers waiting to convert to full-time regular
status in Case Nos. H7N-4U-C 3766 et al. (1990).

The APWU insists that the Employer's contention that
the Union's interpretation of Section 546.222 would preclude the
Postal Service from ever creating a unique position under that
provision is demonstrably false. Jim McCarthy -- now APWU


19 B90C-4E-C 95076238

The General Clerk Modified assignment in question
consists of a number of clerk duties -- a subset of duties
included in the standard position description of a General
Clerk. That does not detract from the fact that it was uniquely
exeated as a rehabilitation assignment. As the Postal Service
stresses, this assignment would not have existed, but for the
obligation to find work for the injured employee. In a
particular case, the APWU may factually challenge whether a
designated rehabilitation assignment actually is a uniquely
created position, under Section 546.222, but that is not the

issue in this case.°?

Article 37.3.A.1.a(1) xequires management to post
"[nlewly established full-time duty assignments". Article
37.1.8 defines "Duty Assignment" as: "A set of duties and
responsibilitias within recognized positions regularly scheduled
during specific hours of duty." Under Article 3, the Postal
Service has the exclusive right -- consistent with other
provisions of the Agreement and applicable laws and regulations:

Cc. To maintain the efficiency of the
operations entrusted to it;

3 At one point in the hearing (Tr. p. 202) the APWU's counsel
asserted that General Clerk Modified jobs "are nothing but.
general clerk duties that have been reverted and set aside so
that they [the Postal Service] could diminish their worker's
compensation liability". This allegation is not established in
the record in this case, and, in any event, raises an issue of
fact. The interpretive issue in this case is predicated on the
Postal Service having uniquely created the position in issue as

a rehabilitation assignment.


tl. The Postal Service’s Limited Duty Regulations Must be Enforced by the Board

A. Statute and O] lation

The restoration rights of federal employees who overcome their injury or
disability are established by 5 U.S.C. 8151(b). In enacting these statutory rights,
“Congress sought to do everything feasible to compensate and reinstate federal
employees injured in the line of duty ....” Raicovich v. U.S. Postal Service, 675 F.2d
417, 424 (D.C. Cir. 1982).°

The statute, of course, provides that the restoration rights of injured
employees are to be implemented through regulations promulgated by the Office of
Personnel Management (“OPM”). Accordingly, the restoration of employees who
partially coven from compensable injuries is governed by the OPM rule codified at 5
CER. §353.301(d):

Agencies must make every effort to restore in the local
commuting area, according to the circumstances in each
case, an individual who has partially recovered from a
compensable injury and who is able to return to limited
duty. At a minimum, this would mean treating these

© Section 8151 was part of a package of amendments to the Federal Employees Compensation
Act, enacted in 1974, which were intended to benefit employees. Both the House and Senate Reports
repeatedly emphasized that the findings of the National Commission on State Workmen's Compensation
Laws released in July, 1972, coupled with further congressional review of the operation of federal law, had
brought to light serious deficiencies in the Federal Compensation system. The 1974 amendments,
accordingly, were designed to “begin a program updating the Act so that it might clearly reflect the most
equitable methods for the compensation of Federal employees injured while in the performance of their
duties.” H.Rep. No, 93-1025, 93rd Cong., 2d Sess. 3 (1974) at 1. As the Senate Report put it, the
amendments reflect a policy designed to require the Federal Government to be a “model employer”:

“ft is essential that injured or disabled employees
of all covered departments and agencies, including
those of the United States Postal Service, be treated
in a fair and equitable manner. The Federal
Government should strive to attain the position

of being a model employer, Enactment of these
Amendments will do much to achieve that goal.”

S. Rep. No. 93-1081, 93d Cong, 2d Sess, (1974) at 2. Accordingly, ambiguities in the statute or its
implementing regulations should be resolved in favor of injured employees.

12


M-01010

With regard to individual grievances which arise in
connection with implementation of these procedures, the
parties agree that such grievances must be filed at Sten 2
of the Grievance-Arbitration Procedure within five (5) days
of the effective date of the limited duty assignment, The
parties further agree that, if such a grievance remains
unresolved through Step 3 of the Grievance-Arbitration
Procedure, the grievance may be appealed to Expedited
Atbitration under Article XV, Section 4 C, of the National
Agreement. A

In view of the foregoing, the issue raised by this grievance
relative to the assignment of letter carriers who incur job
related injuries is resolved as the Postal Service, in
accordance with the assignment procedures set forth above,
may assign letter carriers who have partially recovered from
job related disabilities to Limited duty assignments outside
of their regular work schedules and/or their regularly
assigned work facilities. The grievance can, therefore, be
considered closed,

Sincerely,

tseg — Vacant he allo, tts
Wk am E, Henny, Jr. Vincent R. Sombrotto,

General Manager President

Grievance Division National Association of Letter
Labor Relations Department Carriers, AFL-CIO


15 E90C-4E-C 95076238

not exist; but for the obligation to reemploy the injured
employee, it would not have been created. By agreement of the
parties, the Postal Service asserts, tha argument that if the
xehabilitation assignment was posted as an Article 37 duty
assignment, that eventually would lead to a residual vacancy
that might lead to conversion of a PTY clerk is not before the
arbitrator. In addition, if the rehabilitation assignment was
Posted and filled by an able-bodied regular clerk, it surely
would be abolished -- there being no need for such a duty
assignment -- and that regular employee would become an
unassigned regular subject to being assigned to a residual
vacancy prior to consideration of converting a PTF to regular.

Finally, the Postal Service contends that testimony in
the record shows that the past practice of the parties supports
its position. Rehabilitation assignments have never been

posted.

RALC POSITION

The NALC, as intervenor in this case, agrees with tha
Postal Service's position that a rehabilitation position
“uniquely created" to accommodate a specific injured employee
does not have to ba posted for bid by able-bodied employees. As
NALC Vice President Ron Brown testified, such positions have
long existed in the letter carrier craft and the NALC's
consistent position has been that these rehabilitation positions
axe created under ELM Section 540 for the express purpose of
providing an assignment to a person on limited duty, and, as


are not required to assemble available tasks from multiple positions to create a unique
appropriate assignment. Jd, The Board has not yet addressed whether Postal Service
regulations create additional restoration rights for Postal employees appealing to the
MSPB. The Board issued its Notice so that interested parties could address the following

legal issues:

(1) May a denial of restoration be “arbitrary and
capricious” within the meaning 5 CFR 353.304(c) solely
for being in violation of the ELM, i.e., may the Board have
jurisdiction over a restoration appea! under that section
merely on the basis that the denial of restoration violated
the agency's own internal rules; and (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?

For the discussion below, we address the questions in reverse order.
ARGUMENT

1. The Postal Service's Obligation to Provide Limited Duty Assignments Requires it

to Search for Work Beyond Established Jobs, By Combining Tasks of Multiple
Positions To Create Unique Positions

The Postal Service contractual obligation to provide limited duty work to
employees who partially recover from a job-related injury, found in the Employee and
Labor Relations Manual (ELM)’, requires more than a search for vacant, existing
positions. It also requires the Postal Service to search for work beyond established jobs,

by combining tasks that may be subfunctions of multiple positions and by providing

uniquely created positions that would not otherwise exist.

> The USPS Employee and Labor Relations Manual can be accessed on-line at the following address:
http://about.usps.conVmanuals/elm/elm.htm.



8 E90C~4E-C 95076238

complied with before an offer of
reemployment or reassignment is made to a
current or former postal employes on the
OWCP rolls for more than 1 year.

546,222 Reemployment or Reassignment

A partially recovered current or former
employee reassigned ox reemployed to a
different craft to provide appropriate work
must be assigned to accommodate tha
employee's job-related medical restrictions.
Such assignment may be to a residual vacancy
or toe a position uniquely created to fit
those restrictions; however, such assignment
may not impair seniority rights of PIF

employees.

(Emphasis added.)

APWU_POSITION

The APWU stresses that all of the duties listed in the
“General Clerk Modified" position at issue also are found in the
standard position desaription of a "General Clerk", except the
delivery of Express Mail, which is a duty regularly performed by
general clerks and other employees, as needed. Moreover, when
the APWU Steward who filed this grievance asked the bid clerk in
Phoenix why this position was designated "Modified", she was
told that was because the rehabilitated letter carrier would not

have to pass a typing test.

The APWU contends that the Postal Service in this case

established a new full-time duty assignment, as defined in
Article 37.1.8 of the National Agreement, which it was required


ATTACHMENT A


2 _ E90C~4E-C 95076238

Award Summary

As set forth in the above Findings, the
Postal Service was not required to post the
rehabilitation assignment at issue under
Article 37 of the National Agreement, and
the creation of that assignment pursuant to
provisions of Section 546 of the ELM did not
impair the seniority rights of PIF clerks.

Shyam Das, Arbitrator


M-01010

b, 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.

¢. 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 shall 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.

d. 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 will be made to assign the
employee to work within the employee's craft, with-
in the employee's regular schedule and as near as
possible to the regular work facility to which
normally assigned.

7142 When a former employee has partially recovered from
a compensable injury or disability, the USPS must
make every effort toward reemployment consistent
with medically defined work limitation tolerances.
Such an employee may be returned to any position for
which qualified, including a lower grade position
than that held when compensation began.

This language, to which you indicated you and other Unions
with whom you discussed it are amenable, incorporates
procedures relative to the assignment of employees to limited
duty that you proposed. Subchapter 540 of the Employee and
Labor Relations Manual was published on October 22, 1979, as
a Special Postal Bulletin. It is the intent of the Postal
Service to publish Part 546.14 with the language set forth in
this letter, separately, after transmitting it to the Unions
under Article XIX of the National Agreement. Part 546.14
subsequently will be published along with the rest of
Subchapter 540 in the Employee and Labor Relations Manual.


) E90C-4E-C 95076238

to post for bid under Article 37.3.A.1. In violation of Article
37, the APWU charges, the rehabilitated letter carrier was
reassigned as a PIF clerk to a full-time regular duty
assignment, without regard to the fact that she had no seniority
in the Clerk Craft. This reassignment occurred when there wera
clerks with over 20 years of seniority waiting to bid on a day
job with the hours and days off of this position, as well as PTF
clerks waiting to be converted to full-time regulars.

The APWU further contends that the Postal Service

violated Article 19 and ELM Saction 546 by failing to post this
assignment. Section 546 does not -- as the Postal Service
argues -- authorize the Employer to ignore the seniority and job
posting requirements of the National Agreement, but rather

requires compliance with the National Agreement.

The APWU insists that the Employer's obligation to
"make avery effort toward assigning the employee to limited duty
consistent with the employee's medically defined work limitation
tolerance", set forth in ELM Section 546.141 cannot justify
violation of Article 37. First, that provision is applicable to
temporary "limited duty" assignments, not to permanent
xeassignment following partial recovery, as was the case here.
Second, the vague reference to making “every effort" in Saction
546.141 cannot overcome the requirement clearly and repeatedly
expressed elsewhere in Section 546 that applicable collective

bargaining agreement provisions must be followed.


Accordingly, in the present cases, even if the Postal Service’s limited duty
regulations afford appellants greater rights than the OPM regulation, those greater rights
must be enforced by the Board.

CONCLUSION

For the reasons discussed above, the MSPB should enforce Postal Service
internal rules and regulations in applying the arbitrary and capricious standard under 5

C.F.R. 353.304 to appeals from partially recovered employees.

August 24, 2011 Respectfully submitted,

Leah E. Seeantor

Keith E. Secular, Esq.

Claire Tuck, Esq.

COHEN, WEISS AND SIMON LLP
330 West 42nd Street

New York, NY 10036

(212) 563-4100

Attorneys for Amicus National
Association of Letter Carriers, AFL-
clo


— Reassignment to an existing position. If a current
employee can no longer perform the core duties of his or
her position but is capable of performing the core duties of
another authorized position for which he or she is qualified,
reassignment may be offered. Since the employee is
performing the core duties of the position, the workhours
are charged to the regular operation LDC,

— Residual vacancy. If a vacancy has been posted for bid
or application and there are no successful bidders or
applicants, both current and former employees may be
offered a residual vacancy if they can perform the core
duties of the position with only minor modification. Again,
since the core duties are being performed, this is not
considered a modified assignment and the workhours are
charged to the regular operation LDC,

— Modified assignment. If a current or former employee’s
restrictions prohibit accommodation as described in the
categories above, individual tasks must be identified and
combined to develop a modified assignment consistent with
the employee’s medical restrictions, These tasks are usually
subfunctions and may be from multiple positions.

Thus, Postal Service policy requires that if an injured employee cannot be
accommodated with assignment to an existing position (the employee’s current position,
other existing position, or residual vacancy), then “individual tasks must be identified and
combined to develop a modified assignment...[T]hese tasks are usually subfunctions and
may be from multiple positions.” EL 505, Section 11.7. Use of the imperative “must” in
this context confirms the obligatory rather than discretionary nature of the requirement.

This obfigation to identify and combine individual tasks and subfunctions
from multiple positions in order to develop a modified assignment is echoed in another
relevant provision in the ELM. ELM 546.222 provides:

A partially recovered current or former employee
reassigned or reemployed to a different craft to provide

appropriate work must be assigned to accommodate the
employee’s job-related medical restrictions. Such


6 E90C-4E-C 95076238

(1) To the extent that there is adequate
work available within the employee's
work limitation tolerances, within
the employee's craft, in the work
facility to which the employee is
regularly assigned, and during the
hours when the employee regularly
works, that work constitutes the
limited duty to which the employes
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
eraft and to keep the hours of
limited duty as close as possible to
the employee's regular schedule.

(4) An employae may be assigned limited
duty outside of tha 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, avery
effort must be made to assign the
employee to work within the


3 E90C-4E-C 95076238

USC 8151 and the Office of Personnel
Management. Article 21.4 provides for the
promulgation of regulations to comply with
those responsibilities. Those regulations
are incorporated into the Employee & Labor
Relations Manual 540. The assignment in
this case was made in accordance with those
regulations.

The rehabilitation assignment is uniquely
created as required in ELM 546.222. As
such, it does not constitute a newly
established position which must be posted
for bid under Article 37,3.A,

The assignment is an incumbent only
assignment created to meet the restrictions
of the employee being placed. Further, if
for any reason the employee vacates the
position, it will not be posted for bid.

Furthermore, past practice, negotiation
history, case law, handbooks and manuals and
a reading of the contract as a whole
supports management's position in this case.
National Arbitrator Aaron has already ruled
ain case number H1C-5D-C 2128 that it is too
jate in the day for the Union to challenge
the proposition that FECA regulations can
augment contractual rights.

The provisions of Article 37 cited by the APWU include
the following:



minimize inconvenience and disruption for limited duty employees. These criteria,
presently incorporated in the ELM, are as follows:

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:

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

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.

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 employce 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.

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

The above language has remained in the ELM ever since 1979. It is found
in the current ELM at 546.142a,
For more than 30 years, both the Postal Service and the NALC have

interpreted that language to obligate the Postal Service to provide medically suitable

5


This is demonstrated by the collective bargaining history regarding the
relevant ELM provision, by Postal Service policy reflected in its handbooks and manuals,

and by Postal Service admissions in national level arbitration proceedings.

A. The Bargaining History of ELM 546.142 Establishes that the Postal

Service’s Current Restoration Obligation Goes Beyond Restoration to
Established Jobs

In 1978, Postal Service regulations required it to make limited duty
assignments only to established jobs. The Employee and Labor Relations Manual (ELM),
Issue 1, dated 4-1-78, at Section 546.21 stated:

Maximum efforts shall be given towards assignments for
employees with occupationally-related illnesses or injuries
to established jobs which are not medically contraindicated,
and within the requirements of applicable collective
bargaining agreements.

However, in 1979 the ELM was revised, expanding the requirement by
changing “maximum efforts shall be given” to “must make every effort” and by deleting
the reference “to established jobs” and replacing it with “to limited duty.” Moreover,
these changes were effected as a result of a negotiated national pre-arbitration settlement
between the Postal Service and the National Association of Letter Carriers. (A copy of
the settlement is submitted herewith as Attachment A to this brief.) The settlement, dated
October 26, 1979, re-numbered and changed the relevant ELM language as follows:

Section 546.141 Current Employees.

When an employee has partially overcome a compensable
disability, the USPS must make every effort toward
assigning the employee to limited duty consistent with the
employee’s medically defined work limitation
tolerances...

The settlement also established specific criteria for limited duty

assignments (known colloquially as the “pecking order”) which were intended to

4


CERTIFICATE OF SERVICE

I certify that the attached Documents were sent by First Class mail to each of the

following:

Appellants

Arleather Reay

:

James C. Latham

Ruby N. Turner

j

Appellant Representatives

Geraldine Manzo
7700 Edgewater Drive
Suite 656

Oakland, CA 94621

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

Agency Representatives

Andrew C, Friedman, Esq.
United States Postal Service
Law Department

222 South Riverside Plaza
Suite 1200

Chicago, IL 60606-6105

Earl L. Cotton, Sr., Esq.

United States Postal Service

Law Department

3980 Dekalb Technology Parkway
Suite 840

Atlanta, GA 30340-2778

00192087.D0C.1

Cynthia E. FE

Marcella Albright

JR. Pritchett

Postal Employee Advocates
86 East Merrill Road
McCammon, ID 83250

Thomas Willi

m Albright

Ayoka Campbell

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

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

2 Wd Ne ONY L102

adSW GAAIS0aY

@s


Handbook EL 505 has separate chapters for limited duty assignments
(Chapter 7) and rehabilitation assignments (Chapter 11). Both chapters reflect policy that
includes assignment of partially recovered employees to work that is not part ofa
complete and separate position.

Chapter 7 of EL 505 addresses limited duty provided to injured employees
who are temporarily unable to perform their regular functions. Exhibit 7.1 provides
guidelines and basic considerations, including the following: “[tJhe assignment should be
a function where temporary additional help is useful.” Clearly, assignment to provide
temporary additional help is not an assignment to a vacant, existing position.

Additionally, sections 7.1 and 7.2 provide for Informal and Formal
Limited Duty Programs. The Formal Limited Duty Program involves a special bank of
tasks that are filled only by injured employees.

This special bank consists of limited duty tasks that are
filled only by injured employees...

Establish a special bank of limited duty tasks to be filled
only by injured employees...

Clearly, assignment to tasks from a special bank of tasks reserved only for injured
employees is not an assignment to a vacant, existing position.
Chapter 11 of EL 505 addresses Rehabilitation assignments. Section 11.7

provides:

Consider the following possible placements:

— Employee's current position. If the employee is a

current employee (was never separated from the USPS

rolls) and is capable of performing his or her core duties

with only minor modification, assignment to the current

position may be feasible. This type of accommodation is

not considered a modified assignment, and the workhours
are charged to the regular operation LDC.

7


ATTACHMENT B


COHEN, WEISS AND SIMON LLP
BRUCE H. SIMON

COUNS RS SAMUEL J. COHEN (1908-1991)
ROBERT S. SAVELSON at LAW HENRY WEISS (1910-2004)
STEPHEN B, MoLDOF 330 WEST 42*°° STREET
MICHAEL EB, ABRAM NEW YORK, N.Y, 10036-6976 DAVID R. Hock

KEITH E, SECULAR
PETER HERMAN
RICHARD M, SELTZER: (212) 563-4100
JAMES L, LINSEY*

— OLAIRE TUCK*
RICHARD C, HARMON
MARCELLE J, HENRY
EVAN HUDSON-PLUSH*
MICHAEL S. ADLER*
JOSHUA ELLISON*

MICHAEL L. WINSTON ZACHARY N. LEEDS
CI TzvI Mackson
‘THOMAS N. CIANTRA
JOSEPH J. VITALE* August 24, 2011 NOELIA E, JARAMILLO
PETER D. DECHIARA DaNyYa AHMED*
Lisa M. GoMEZ*
BRUCE S. LEVINE
‘TRAVIS M. MASTRODDI

SUSAN Dayis*

* ALSO ADMITTED IN Ny

Office of the Clerk of the Board
Merit Systems Protection Board
1615 M Street, NW
Washington D.C. 20419

Re: James C, Latham, et al. v. U.S. Postal Service
Docket No. DA-0353-10-0408I-1

Dear Sir:
Pursuant to the Notice filed in the Federal Register by the Merit Systems Protection Board on
July 25, 2011, we submit for filing in the above matter an amicus brief on behalf of our client,

the National Association of Letter Carriers, along with attachments thereto.

This will confirm that we have sent by first class mail a copy of this brief to the parties and the
parties’ representatives.

Sincerely,

(aed E. St. to—

Keith E, Secular

Enclosure R
= 8
. =
cc: Parties and representatives a . es Ss ma
2a Ss
maz 38.9
mG ¢ 2 =
i No
on 2
as


21 E90C-A4E-C 95076238

have no seniority right to be assigned to a uniquely created
rehabilitation position. Certainly if, as already determined,
such a position is not subject to Article 37's posting
provisions, it would be topsy turvy to conclude that PTFs have a
seniority right to that position when full-time regulars do not.
Also, because Article 37's posting provisions do not apply, PTFs
were not deprived of any opportunity to convert to regular full-
time status as a result of a residual vacancy occurring at the

end of the bidding cycle.‘

In this case, the injured letter carrier was
reassigned as a PTF clerk -- at the bottom of the PTF seniority
xoll -- not as a full-time regular. This case is not analogous
to Arbitrator Snow's 1990 decision in Case No. H7N-4U-C 3766 et
al., in which he concluded that "the reassignment of a
supervisor who has not retained his or her seniority to full-

time regular status violates the seniority right of part-time

flexible employees waiting to convert." Moreovar, this case

does not involve assignment of an injured letter carrier to a
residual clerk vacancy. The issue left open in National
Arbitrator Snow's 1998 decision in Case No. H94N~4H-C 96090200

is not raised and need not be decided here.

5 If Article 37's bidding procedures were applicable -- and they
are not -- management obviously would not have posted, or would
have abolished, this assignment, because it had no need for it

if it could not be used as a rehabilitation assignment, Whether
a PTF has a priority right to fill a residual full-time vacancy
that could otherwise accommodate an injured worker under Section
546 is not an issue in this case, and no opinion is expressed on

that issue.


seniority bidding, prior to assignment to the injured letter carrier, In addition to ELM
546,142, ELM 546.222 was significant to the arguments in the case.
Arbitrator Das noted the Postal Service position:

The Postal Service contends that an assignment of this sort
is not an Article 37 duty assignment. It only exists as a
result of the need to reassign the injured employee. It is
created under Article 21.4 and ELM Section 546. When the
injured employee vacates the assignment, it will no longer
exist...

Creation of duty assignments is based on management’s
operational needs. The present assignment, in contrast, was
only created because of the Postal Service’s legal,
contractual and regulatory obligation to reassign or
reemploy an employee who is injured on the job. This
assignment did not exist before the employee was injured
and otherwise would not have been created by
management, because no need for an Article 37 duty
assignment existed.

Das Award, pp. 12-13, Arbitrator Das made the following finding:
In this case, the Postal Service created a full-time
assignment with fixed hours and days off consisting of
various clerk duties that were within the medical
restrictions of the injured letter carrier. This rehabilitation
assignment was not a residual vacancy in the Clerk Craft,

but was a “position uniquely created to fit those
restrictions”, as provided for in ELM Section 546.222.

Id, p. 18.

As noted by Arbitrator Das, the Postal Service acknowledged that the
assignment at issue did not exist before the employee was injured. This assignment had
been created for the sole purpose of accommodating an injured employee and would no
longer exist when the employee vacated it. The Postal Service created the assignment in

accordance with ELM 546.

10


assignment may be to a residual vacancy or to a position
uniquely created to fit those restrictions. ...

(emphasis added). This ELM provision establishes that Postal Service policy includes
assignment to positions specially created to accommodate partially recovered employees.
Cc. Arbitration Decisions

The National Agreement provides a grievance procedure culminating in
final and binding arbitration, including national level arbitration of interpretive issues of
general application. NALC’s sister labor organization, the American Postal Workers’
Union (APWU)' has a similar grievance procedure in its collective bargaining agreement
with the Postal Service, and both the NALC-USPS and APWU-USPS agreements
provide reciprocal rights to intervene in each other’s arbitration proceedings where a
union feels its interests may be affected.

A national level arbitration of a grievance filed by the APWU, in which
the NALC intervened, sheds light on Postal Service policy regarding assignment of
limited duty to both existing vacant positions, and to uniquely created positions. The
case is C-23742, E90C-4E-C 95076238, decided on October 31, 2002 by National
Arbitrator Shyam Das (“Das Award;” a copy of the Das Award is submitted herewith as
Attachment.B to this brief).

In this case, the Postal Service had provided a rehabilitation position in the
clerk craft to a partially recovered injured letter carrier. The APWU filed a grievance,

arguing that the position should have been made available to its members for selection by

“The National Agreement may be reviewed at http://www.nalc.org/depart/cau/agreemnt.html.

5 APWU represents all Postal Service employees in thie Clerk, Maintenance, and Motor Vehicle crafts.
Injured letter carriers are often assigned limited duty work in the clerk craft.

9


17 ES0C~4E-C 95076238

raise other issues that the parties agreed area not to be decided

in this case.

FINDINGS

In his 1985 decision in Case No. H1C-4K-C 17373,
National Arbitrator Mittenthal pointed out:

Part 540 of thea ELM was a response to the
fact that the Postal Reorganization Act
placed all Postal Service employees under
the coverage of the Federal Employees
Compensation Act (FECA). Part 540 was a
means of implementing the injury
compensation program set forth in FECA, It
concerns employees who suffer job-related
disabilities; it requires the Postal Service
to make "every effort" toward placing an
injured employee on “limited duty"
consistent with his work limitations.
Management must make that "effort" even
though no "request" has been submitted by
the employee and even though no "light duty
assignments" have been negotiated by the

parties,
(Footnote omitted.)

Even earlier, in 1983, National Arbitrator Aaron stated in Case

No. H1C-5p-C 2128;

It is obviously too late in the day for the
Union to challenge the proposition the FECA
regulations can augment or supplement
xeemployed 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


5 E90C-4E-C 95076238

1. All newly established Clerk Craft duty
assignments shall he posted to craft
employees eligible to bid within 28

days....

Relevant provisions of ELM Section 546 include the

following:*

546.14
Disability Partially Overcome

546.141 Obligation

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

a. Current Employees. When an employee has

partially overcome a compensable
disability, the USPS must make every
effort toward assigning the employaa to
limited duty consistent with the
employee's medically defined work
limitation tolerance (see 546.611). In
assigning such limited duty, the USPS
should minimize any adverse ox
disruptive impact on the employee. The
following considerations must be made in
effecting such limited duty assignments:

1 rssue 12 of the ELM was in effect when this grievance arose in
1995. It was replaced by Issue 13 in 1998.- To the extent
relevant provisions of Issue 13 differ from those in Issue 12,
the parties seem to agree that the provisions in Issue 13
reflect the manner in which the corresponding provisions in
Issue 12 actually were applied in practice in 1995. The
provisions of Section 546 quoted in this decision are taken from
Issue 13. The APWU has noted that it has challenged Issue 13
under the procedures of Article 19, but that challenge is not

involved in this case.


22 E90C-4E-C 95076238

In its post-hearing brief, the APWU argues that:

The impairment of seniority rights of part-
time flexible employees occurs because of
the aggregation of 40 hours per week of
clerk hours into a position taken out of the
normal operation of the seniority system.
It is not merely the right to bid for the
particular position that has been “uniquely
created" that is at stake, it is the
possibility of having other regular
assignments created on tour 2 that might
permit conversion of a part-time flexible
employee into a regular assignment, and
thereby advance that possibility for avery
other senior part-time flexible clerk.

If I understand the logic of this argument, the APWU basically
is claiming that the seniority rights of PIF clerks are impaired
whenever Clerk Craft duties are packaged into a rehabilitation
assignment for an employee in a different craft, because some or
all of that work otherwise ultimately might be included in a
newly created full-time clerk position at some indefinite time
in the future, and that might result in a conversion opportunity
for a PTF. In making this argument, the APWU in effect is
challenging the entire notion of assigning injured employees in
one craft to a uniquely created rehabilitation assignment in
another craft -- at least whenever there are any PTF employeas
in the craft in which the assignment is created. If such an
attenuated proposition was the intent behind Section 546.222,
which in context seems improbable, presumably it simply would
state something to the effect that injured employees may only be
reassigned to a uniquely created rehabilitation position if
there are no PTF employees in the facility. It does not do


4 E90C-4E-C 95076238

ARTICLE 37
CLERK CRAFT

Section 1. Definitions

* * *

B. Duty Assignment. A set of duties and
responsibilities within recognized positions
regularly scheduled during specific hours of

duty.

* * *

Section 2. Seniority

* * *

D. Application of Seniority.

1. Seniority for full-time employees and
part-time regular employees for
preferred duty assignments and other
purposes shall be applied in accordance
with the National Agreement. This
seniority determines the relative
standing among full-time employees and
part-time regular employees. It begins
on the date of entry into the Clerk
Craft in an installation and continues
to accrue as long as service is
uninterrupted in the Clerk Craft and in
the same installation, except as
otherwise specifically provided for.

* * *

Section 3. Posting, Bidding, and
Application

A. Newly established and vacant Clerk Craft
duty assignments shall be posted as follows:


work to partially recovered employees, regardless of whether or not that work comprises
the essential functions of a complete and separate existing position, in order to ensure

compliance with the pecking order criteria.

B. Handbook EL 505 and ELM 546,22 Also Establish the Postal Service

Policy of Combining Tasks from Multiple Positions to Form Limited Duty
Assignments

As stated in its Introduction, the Postal Service Handbook EL 505 Injury
Compensation compiles all applicable USPS regulations, policies and guidelines
regarding injury compensation issues.

Provisions in the EL 505 reflect Postal Service policy that requires it to
make every effort to assign partially recovered employees to restricted work even where
such work is not part of a distinct, separate, or existing position.

Preliminarily, it is important to note that the Postal Service distinguishes
between restricted work that is provided to partially recovered employees whose
disability is temporary, and those whose disability is permanent. The Postal Service calls
the former “limited duty” assignments and the latter “rehabilitation” assignments.
However, the Postal Service recognizes that the ELM 546,142a obligation applies equally
to both. ELM 546.141 explains:

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.

*While the USPS does not make its Handbook EL 505 available to the public on-line, it can be
accessed at the following NALC web address: http://www.nalc.org/depart/cau/manual.html.

6


Antes Posre,

< M-01010
FS

e
3
ry
=
z
3

4 :301au3s

Seoneet

UNITED STATES POSTAL SERVICE
475 L’Entant Plaza, SW
Washington, DC 20260

‘October 26, 1979

Mr. Vincent R. Sombrotto, President
National Association of Letter
Carriers, AFL-CIO

100 Indiana Avenue, N. W.

Washington, BD. C. 20001

Re: Grievance No, N8-NAT-003

Dear Mr. Sombrotto:

On July 24, 1979, and several subsequent occasions, we
conducted pre-arbitration discussions relative to the
above-captioned grievance.

Pursuant to these discussions, the Postal Service prepared,
and forwarded to you, proposed new language for inclusion in
Part 546.14 of the Employee and Labor Relations Manual. the
proposed new language is as follows:

New Part 546.14, E&ER Manual

+14 DISABILITY PARTIALLY OVERCOME.
14) Current Employees,

When an employee has partially overcome a compensable
disability, the USPS must make every effort toward assigning
the employee to limited duty consistent with the employee's
medically defined work limitation tolerances (see 546.32).
In assigning such limited duty the USPS should minimize any
adverse or disruptive impact on the employee. The following
considerations must be made in effecting such limited duty
assignments;

a. To the extent that there is adequate work available
within the employee's work limitation tolerances
within the employee's craft, in the work facility
to which the employee is regularly assigned, and
during the hours when the employee regularly works,
that work shall constitute the limited duty to which
the employee is assigned.



12 E90C-4E-C 95076238

POSTAL SERVICE POSITION

The Postal Service maintains that the issue in this
case, as stated in its Step 4 denial, 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.

This issue, the Postal Service stresses, is predicated on the
existence of a uniquely created rehabilitation assignment for an
employee with work restrictions due to an on-the-job injury.’

The Postal Service contends that an assignment of this
sort is not an Article 37 duty assignment. It only exists as a
result of the need to reassign the injured employee. It is
created under Article 21.4 and ELM Section 546. When the
injured employee vacates the assignment, it will no longer

exist.

The Postal Service stresses that under Article 3 the

discretion to create (or not to create) a full-time Article 37

? Tha Postal Service acknowledges that the issue of whether the
injured employee's reassignment actually is a uniquely created
assignment or rather is a pre-existing duty assignment would be
subject to review based on the particular facts of each case.
That is not an interpretive issue, however. The Postal Service
asserts that the APWU has acknowledged that, for purposes of
deciding the interpretive issue in this case, the reassignment
was a uniquely created rehabilitation assignment.


13 E90C-4E-C 95076238

duty assignment rests exclusively with management. Similarly,
management has the exclusive right to abolish or revert Article
37 duty assignments, as provided in Article 37.1.F and 37.1.6.

Creation of duty assignments is based on management's
operational needs. The present assignment, in contrast, was
only created because of the Postal Service's legal, contractual
and xegulatory obligation to reassign or reemploy an employee
who is injured on the job. This assignment did not exist before
the employee was injured and otherwise would not have been
created by management, because no need for an Article 37 duty

assignment existed.

Section 540 of the ELM was promulgated to meet the
Postal Service's obligations under Article 21.4 of the National
Agreement and FECA. Cross-craft rehabilitation assignments are
made pursuant to Section 546.141.a, which was promulgated in
1979 pursuant to an agreement with the NALC. The record
establishes that this agreement was discussed with the APWU
which concurred in the change. Moreover, the APWU raised no
objaction to these changes under Article 19 when they were
incorporated into the ELM in 1979. The Postal Service stresses
that there was no claim at that tima by the APWU that
assignments made pursuant to the "packing order" in Section
546,.141a actually were duty assignments that had to be posted
under Article 37 or otherwise violated the APWU National
Agreement. It clearly is too late for the APWU to now make such

a claim.


BACKGROUND E90C-4H-C 95076238

This case arises under the 1994-1998 National
Agreement between the American Postal Workers Union (APWU) and
the Postal Service. The National Association of Letter Carriers
(NALC) intervened and supports the position of the Postal

Service in this case.

The Federal Employees' Compensation Act (FECA) and
regulations issued thereunder impose certain obligations on the
Postal Service to provide suitable work to employees who
partially recover from a job-related injury. Article 21.4 of
the APWU National Agreement provides:

Section 4. Injury Compensation

Employees covered by this Agreement shall be
covered by subchapter I of Chapter 81 of
Title 5 [FECA], 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,

The NALC National Agreement includes a similar provision.
Section 546 of the Employee and Labor Relations Manual (ELM)
includes provisions relating to Reemployment or Reassignment of

Employees Injured on Duty.

In May 1995, a partially recovered letter carrier who
had been injured on the job was reassigned to the Clerk Craft as
a part-time flexible (PTF) employee and assigned to a "General
Clerk Modified" position at Cactus Station in Phoenix, Arizona,



obligation in considering appeals from partially recovered Postal employees who seek
restoration to duty, under the existing arbitrary and capricious standard established by
OPM regulation.

FACTUAL BACKGROUND

On July 25, 2011, the Board issued a Notice of Opportunity to File

Amicus Briefs (“Notice”) in five pending cases involving partially recovered Postal
employees with compensable injuries.’ 76 FR 44373 (2011). In these five cases, the
employees argue on appeal that the Postal Service violated their restoration rights
because it failed to follow its Employee and Labor Relations Manual (“ELM”).
Specifically, these appellants argue that under ELM §546.142(a) the Postal Service is
required to “provid[e] medically suitable work to partially recovered employees
regardless of whether that work comprises the essential functions of a complete and
separate position.” Notice, 76 FR 44373, Further, at least one appellant relies on U.S.
Postal Service Handbook EL-505, Injury Compensation §§ 7.1-7.2,

which provides that limited duty assignments “are designed

to accommodate injured employees who are temporarily

unable to perform their regular functions” and consist of

whatever available tasks the agency can identify for

partially recovered individuals to perform consistent with

their medical restrictions,
Notice, 76 FR 44373. Under current MSPB precedent, agencies are required “to search

within the local commuting area for vacant positions to which an agency can restore a

partially recovered employee and to consider the employee for any such vacancies” but

"The relevant cases are: James C. Latham v. U.S, Postal Service, MSPB Docket Number DA-0353-10-
0408-I-1, Ruby N. Turner v. U.S. Postal Service, MSPB Docket Number SF-0353-10-0329-I-1, Arleather
Reaves v. U.S. Postal Service, MSPB Docket Number CH-0353-10-0823-I-1, Cynthia F. Lundy v. U.S.
Postal Service, MSPB Docket Number AT-0353-! 1-0369-I-1, and Marcella Albright v. U.S. Postal
Service, MSPB Docket Number DC-0752-11-0196-I-1.

2


20 E90C-4E-C 95076238

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

These management rights encompass the right to establish naw
duty assignments to mest its operational needs.

In this case, the rehabilitation assignment in
question was not oreated to meet the operational needs of the
Postal Service, but to fit the medical restrictions of the
injured employee with minimum disruptive impact on the employee.
By definition, it would make no sense to treat such a uniquely
created assignment as a duty assignment that must be posted for
bid. Requiring the assignment to he posted would defeat the

sole purpose for establishing the assignment, because the
injured employee ~- who has no seniority in the Clerk Craft -~
could not bid on that assignment. To paraphrase Arbitrator
Aaron, it is too late in the day for the APWU to challenge tha
proposition that the Postal Service may reassign an injured
employee to a uniquely created position in another craft to
provide appropriate work to that employee, which essentially is
what the APWU's Article 37 position in this case does.

The APWU also has not established in this case that
the reassignment in question impaired seniority rights of PTF.
employees in contravention of ELM Section 546.222.‘ PTF clerks

‘ Despite tha various advocates' efforts to dance around this
issue, I believe it needs to be addressed in the context of this
grievance. I have attempted to say no more than necessary to

resolve this case.


18 E90C-4E-C 95076238

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 set forth in Article 19 of the
Agreement, previously quoted. This it
failed to do....

In this case, the Postal Service creatad a full-time
assignment with fixed hours and days off consisting of various
clerk duties that were within the medical restrictions of the
injured letter carrier. This rehabilitation assignment was not
a residual vacancy in the Clerk Craft, but was a "position
uniquely created to fit those restrictions", as provided for in

ELM Section 546.222,

Section 546.222 specifically recognizes the
reassignment of a partially recovered employee to a different
craft to provide appropriate work and authorizes the Postal
Service to establish a "uniquely created" position for that
purpose. As best I can determine, the issue in this case
essentially is (1) whether the assignment in question must be
posted for bid under Article 37 of the APWU National Agreement
-- given the requirement in ELM Section 546.21 that reassignment
under Section 546 must be in compliance with applicable
collective bargaining agreements -- and/or (2} whether that
assignment impaired seniority rights of PTF clerks contrary to

Section 546.222.


employees substantially the same as other handicapped
individuals under the Rehabilitation Act of 1973, as
amended. (See 29 U.S.C. 791(b) and 794.)

(emphasis added). Significantly, this regulation, unlike the.rules governing employees
who fully recover, simply provides for partially recovered employees to be “restored . . .
according to the circumstances in each case .. , to limited duty.” By contrast, employees
who fully recover are to be restored to “his or her former position or an equivalent one.”
5 CFR. § 353.301(a) and (b). The language of paragraph (4), by itself, does not define
“limited duty.” Logically, the term should be applied to any duty which is considered, by
regulation, custom, or practice, to be “limited duty” by the agency in question. Here, as
discussed above, the Postal Service does not restrict the definition of limited duty to the
essential functions of a complete and separate position.

Section 353.304’s requirement that injured employees be treated “at a
minimum .., . substantially the same as other handicapped individuals under the
Rehabilitation Act of 1973, as amended” is also significant to the question posed by the
Board. Decisions by the Equal Employment Opportunity Commission involving injured
Postal Service employees have established that the Service’s failure to provide limited
duty under ELM 546 is evidence of discrimination under the Rehabilitation Act. For
example, in Pruneda y. Potter, EEOC Appeal No. 0720050014, 2007 WL 1730018 (June
4, 2007), the Commission found that the reassignment of limited duty letter carriers
“without regard to the protocol established by its applicable Employee and Labor
Relations regulations, is sufficient to create an inference of discrimination so as to
establish a prima facie case of disability-based discrimination.” Id. at 13. Similarly, in
McConnell v. Potter, EEOC Appeal No. 0720080054, 2010 WL 332083 (Jan. 14, 2010),

the Commission found that the appellant “stated a claim for a violation of the

13



Treasury, 212 F.3d 1289 (Fed. Cir. 2000). In Kachanis a former Internal Revenue
Service employee, who had been separated from employment as a result of a job-related
injury, sought restoration under Section 8151(b) following his recovery. Jd. at 1291, The
Court upheld the Board’s finding that the failure to restore the employee was consistent
with the statute and the OPM regulations. Jd, at 1295. However, the Court went on to
hold that the agency was also bound by its Career Transition Assistance Plan (“CTAP”),
a set of internal regulations covering displaced bargaining unit employees. The Court
held that the Board properly considered “whether [the employee] was afforded any
further rights under the CTAP.” Jd. at 1296.

The Board properly focused on whether Kachanis was
afforded any further rights under the CTAP. .. .The Board
conceded, properly so, that an agency’s own policy or
regulations regarding the filling of vacancies supersedes
the [OPM] regulations to the extent they afford greater
rights.

Id. (emphasis added),”

7 This result is consistent with a long line of MSPB precedent enforcing internal agency policy and
regulations in a variety of contexts and Federal Circuit authority affirming this enforcement, See Lyles v.
Dep't of Army, 864 F.2d 1581, 1583 (Fed. Cir. 1989) (“The Army must abide by its own regulation [in
reassigning employees who lose their security clearances], even if it is more rigorous than necessary. . .
And the Board . . . may review the Army's efforts under this regulation(.]”); Stuck v. Dep't of Navy, 72
M.S.P.R. 153, 157 (1996) (MSPB has jurisdiction to review employee's claims under agency’s priority
placement program because “the Board has found that it will enforce an agency’s own policy or regulation
regarding the filling of vacancies, even if that policy or regulation grants the employee greater rights than
she would have under the general regulations”); Monk v. Department of Navy, 68 M.S.P.R, 560, 562-63
(1995) (finding employee improperly separated in violation of MOU); Moran v, Dep't of Air Force, 64
M.S.P.R, 77, 84 (1994) (when there is a reduction-in-force “the Board will enforce employee rights
mandated by agency regulations”; finding reduction-in-force to be consistent with internal agency
regulations); Kastick v. U.S. Postal Service, 40 M.S.P.R. 19, 22 (1989) (Postal Service applied “obsolete”
ELM provision in error and therefore did nat comply with MSPB decision); 4dakai v. Dep't of Interior,
Bureau of Indian Affairs, 20 M.S.P.R. 196, 201 (1984) (“There is no question that an agency is obligated to
conform to procedures and regulations it adopts, and the Board is required to enforce such procedures.");
Patterson v. Dep't of Navy, 6 M.S.P.R. 420, 421 (1981) (“where the agency implemented a regulation or
established a policy whereby it is required to offer vacant positions in a reorganization, the Board will
enforce such a provision").

15


STATEMENT OF INTEREST

Pursuant to the Notice published in the Federal Register by the Merit
Systems Protection Board (“MSPB”or “Board”) on July 25, 2011, the National
Association of Letter Carriers (“NALC”) submits this amicus brief as an interested party
in the above-captioned matter,

NALC is a national labor organization, headquartered in Washington
D.C., and the exclusive bargaining representative of the approximately 200,000
employees of the United States Postal Service (“Postal Service”) employed in the city
letter carrier craft. NALC and the Postal Service are parties to a nation-wide collective
bargaining agreement (the “National Agreement”) covering the terms and conditions of
employment of city letter carriers. As discussed below, the National Agreement
incorporates rules and policies governing the employment of injured employees. NALC
has a vital interest in ensuring that such rules and policies are not undermined by the
Board’s decision herein,

PRELIMINARY STATEMENT

The Postal. Service’s obligation under its internal regulations and policies
(and per contractual agreement with the NALC) to provide work to employees who
partially recover from job related injuries includes more than just offering assignment to
existing vacant positions. Rather, this obligation includes assignment to positions
specially created to accommodate injured employees, and to tasks and subfunctions
combined from multiple positions. Federal Circuit and MSPB decisions establish that the
Board is obligated to enforce internal agency regulations and policies in employee
appeals, even when doing so creates additional rights for employees that exceed their

rights under OPM regulations, Consequently, the MSPB must enforce this Postal Service

00192070, 0C.1 I


11 E90C-4E-C 95076238

Direator of the Clerk Craft -- testified that as a Local Union
official in Boston he regularly negotiated with management
modification of residual clerk vacancies to make them consistent
with the needs of letter carriers reassigned into those
"uniquely created positions". Greg Bell -- now APWU Director of
Industrial Relations -- also testified that, while he served as
a Local Union official in Philadelphia, tha Union did not grieve
when letter carriers were placed in negotiated limited and light
duty assignments that the local parties had agraed upon to be

set aside for that purpose.

In Case No. H94N-4H-C 96090200 (1998), an NALC case in
which the APWU intervened, National Arbitrator Snow ruled that
any reassignment of a letter carrier into a clerk position under
Section 546.141a must be made in accordance with the APWU's
National Agreement and, in particular, must not impair the
seniority rights of PTF clerks. That can be accomplished, the
APWU asserts, by ad hoc agreements betwaen the parties (like
those testified to by McCarthy) or agreements made in advance

(like thosa testified to by Bell) about how to handle such
reassignments. In this case, however, the Postal Service's
unilateral creation of a full-time assignment without posting
that assignment for bid impaired the right of full-time regular

and PTF employees in violation of.the APWU National Agreement.


C-a3742

National Arbitration Panel

ECEIVE
Woy -7 202

In the Matter of Arbitration COHEN WEISS & SIMON LLP

batwaean

United States Postal Servica

Case No.
E90C-4E-C 95076238

and
American Postal Workers Union
and

National Association of Letter
Carriers - Intervenor

wwe ve ee ee eur

Before: Shyam Das

Appearances:

For the Postal Service: John W. Dockins, Esquire

For the APWU: Darryl J. Anderson, Esquire

For the NALC: Keith E. Secular, Esquire
Place of Hearing: Washington, D.C.
Dates of Hearing: October 16, 2001

January 23, 2002
Date of Award: October 31, 2002
Relevant Contract Articles 19, 21.4, and 37;
Provisions: ELM Section 546
Contract Yaar: 1994-1998
Type of Grievance: Contract tnterpretati (ME CEIVED
NOV 1 4 2002
VICE PRESIDENT'S

OFFICE
NALC HEADQUARTERS


UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

JAMES C. LATHAM, : Docket Numbers:

RUBY N. TURNER, : -0353-10- J+]
ARLEATHER REAVES, : Fee fate
CYNTHIA E, LUNDY, AND : CH-0353-10-0823-1-1
MARCELLA ALBRIGHT, : DC-0752-11-0196-I-1
\ Appellants, : SF-0353-10-0329-I-I

UNITED STATES POSTAL SERVICE,
Agency.

AMICUS BRIEF OF NATIONAL ASSOCIATION OF LETTER CARRIERS

AFL-CIO

Keith E. Secular, Esq.
Claire Tuck, Esq.

COHEN, WEISS AND S]MON LLP

330 West 42nd Street
New York, NY 10036
(212) 563-4100

WOOUTIWH
LS:2 Wd 42 ONY 102

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23 E90C-4E-C 95076238

that, and I am not otherwise persuaded that the impact of the
xehabilitation assignment cited by the APWU constitutes
impairment of seniority rights of PTF clerks.

For the reasons set forth above, I conclude that the
Postal Service was not required to post the rehabilitation
assignment at issue under Article 37 and that the creation of
that assignment did not impair the seniority rights of PIF

clerks.

AWARD

As sat forth in the above Findings, the Postal Service
was not required to post the rehabilitation assignment at issue

under Article 37 of the National Agreement, and the creation of
that assignment pursuant to provisions of Section 546 of the ELM
did not impair the seniority rights of PTF clerks.

a

Shyam Das, Arbitrator


y) E90C-4E-C 95076238

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

* * *

546.142
Rights and Benefits Upon Partial Recovery

a. Seniority. Former employees who are 4,
reemployed into bargaining unit
positions or current career employees
who are reassigned into such positions
are credited with seniority in
accordance with the collective
bargaining agreements covering the
position to which they are assigned.

* * *

546.2
Collective Bargaining Agreements

1
546.21 Compliance

Reemployment or reassignment under this
section must be in compliance with
applicable collective bargaining agreements.
Individuals so reemployed or reassigned must
xeceive all appropriate rights and
protection under the newly applicable
collective bargaining agreement.

546.22 Contractual Considerations

546.221 Scope

Collective bargaining agreement. provisions
for filling job vacancies and giving
promotions and provisions relating to
retreat rights due to reassignment must be


16 E90C-4E-C 95076238

such, they are not subject to the bidding provisions in the NALC
National Agreement, which are not different to those in the

APWU's Agreement.

The NALC points out that to the extent the APWU may be
claiming that the assignment at issue is not a genuine

rehabilitation assignment, that claim doea not raise an
interprativa issue to be resolved at national level arbitration.

The NALC also argues that the APWU's claim that
failure to post this rehabilitation assignment violates the
seniority rights of PIF clerks is not properly before the
arbitrator. That issue, the NALC asserts, was not raised at any
prior stage of the grievance. Moreover, the facts do not
establish a violation of ELM Section 546.222. That provision
does not generally protect seniority interests or expactations
of PTFs. To show a violation of 546.222, the APWU would have to
establish that a contractual seniority right of PIFs has been
impaired. PTFs, however, have no right to bid on assignments.
At most, they might have conversion rights to a residual vacancy
at the end of the bidding cycle. If, as the Postal Service and
NALC argue, Article 37 of the APWU National Agreement does not
require that full-time regulars be allowad to bid on a
rehabilitation assignment, there will not be any residual
vacancy. If, on the other hand, the arbitrator were to find
that this rehabilitation assignment should have been posted for
bid, that would be sufficient to sustain the APWU's grievance
without the need to consider the seniority rights of PTFs, which


2 E90C-4E-C 95076238

This was a permanent reassignment made pursuant to a Form 50.
The reassigned employee was assigned to work a fixed work week
of 40 hours, baginning at 6:30 a.m. and ending at 3:00 p.m.,
with Sundays and Mondays off. Management created this
assignment as a rehabilitation position for the injured letter
garrier as an application of provisions in ELM Section 546, It
appears from the record that the General Clerk position at this
facility (and other similar facilities in Phoenix) previously
had been abolished.

The APWU filed a grievance in which it asserted that
management violated the collective bargaining agreement in
creating a new General Clerk position for the PTF rehabilitation
employee. The Union asserted a violation of Articles 19, 37 and

12 of the National Agreement.

The Postal Service's Step 4 denial of this grievance
states:

The issue in this grievance 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.

The Union contends that the reassignment of
an injured employee to the clerk craft as a
PIF with a fixed schedule violates the
National Agreement unless the assignment is
to a residual vacancy.

.»- [I]t is our position that the Postal
Service has legal responsibilities to
employees with job related injuries under 5



The arbitration awards cited by the Board in the July 25 Notice illustrate
the circumstances in which specific tasks must be assigned to an injured employee as
limited duty under the ELM. ‘ Essentially, a task must be assigned to a partially recovered,
injured employee if the task is (1) available, and (2) within the employee’s medical
restrictions, so long as the resulting assignment is consistent with the ELM’s pecking
order criteria. See Postal Service and NALC, Case No. EO6N-4E-C 09370199 (2010)
Bisenmenger, Arb) [delivering express and hot case mail and duties related to growth
management); Postal Service and NALC, Case No, GO6GN-4G-C 10205542 (2011)
(Sherman, Arb.) [casing mail for roughly 4 hours per day, delivering Express and First
Class Mail, performing lobby duties, answering the phone, and other activities using a
special lumbar chair]; Postal Service and NALC, Case No. EO6N-4E-C 09419348 (2010)
(Duffy, Arb.) [answering phones, researching problems and correcting errors relating to
the centralized forwarding system (“CFS”), paperwork, assisting supervisors on route
inspections, computer work, work related to the address management system (“AMS”),
shuttling vehicles and taking splits to carriers, hub and spoke runs, delivering express
mail, and other duties]; Postal Service and NALC, Case No. FO6N-4F-C 09221797
(2010) (Monat, Arb.) [casing mail and delivering regular and express mail]; and Postal
Service and NALC, Case No. BOIN-4B-C 06189348 (2010) (LaLonde, Arb.) [work
performed by regular employees on overtime and other subfunctions within the grievant’s

restrictions].

i



Rehabilitation Act” because she showed that “she lost her {limited duty, modified]
position.” The Commission further noted that where “an employee has performed a
modified position for an extended amount of time, it is that position which is considered
for the purposes of determining whether the employee is a qualified individual with a
disability.” Jd. at 10.

Further, as outlined in 5 CFR § 353.304, partially recovered employees
who are denied restoration may appeal the agency’s action under an “arbitrary and
capricious” standard:

(a) Except as provided in paragraphs (b) and (c) of this
section, an injured employee or former employee of an
agency in the executive branch (including the U.S. Postal
Service and the Postal Rate Commission) may appeal to the
MSPB an agency's failure to restore, improper restoration,
or failure to return an employee following a leave of
absence. All appeals must be submitted in accordance with
MSPB's regulations.

(c) An individual who is partially recovered from a
compensable injury may appeal to MSPB for a
determination of whether the agency is acting arbitrarily
and capriciously in denying restoration. Upon
reemployment, a partially recovered employee may also
appeal the agency's failure to credit time spent on
compensation for purposes of rights and benefits based
upon length of service,

5 CFR § 353.304 (emphasis added). An agency’s failure to abide by its own regulations
is inherently arbitrary and capricious. Accordingly, the OPM regulations establish the
Board’s jurisdiction to enforce the Postal Service’s limited duty rules.
B. Kachanis v. Department of Treasury
Any doubt as to the enforceability of the Postal Service’s limited duty

regulations is clearly resolved by the Federal Circuit’s decision in Kachanis v. Dep't of

14