APPENDIX A TO AMICUS BRIEF
OF

AMERICAN POSTAL WORKERS UNION, AFL-CIO

19

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L100 be “ony


_ 1s qualified, including a lower grade position than that which

the employee held when compensation began. (See NALC
Exhibit No, 2, p. 49, emphasis added.)

With regard to “current” employees, the Employer promised that it
would “minimize any adverse or disruptive impact on the employee.” The
Employer made no such commitment with regard to “former”? employees.
Nor is the detailed “pecking order” established for current emaplayaes also
set forth for former employees, Moreover, the provision covering former
employees makes clear that such employees may be reassigned to lower
grade positions. The parties are presumed to have used language in a way
that made no part of it superfluous, and the basic differences In the tvo
ELM provisions makes it reasonable to conclude that management cléarly
intended to give current employees more protection than former employees,

It is a standard of contract interpretation that an interpretation is
preferred which gives meaning to all the verbiage in a provision over an
interpretation which leaves.some of the language of no effect. A conclusion
that former and current employees are to be treated the same way under the
ELM provision would render the additional language in one part of the
ELM meaningless, The difference in language required a difference in
interpretation with regard to protections guaranteed the two categories of

employees. Accordingly, it is reasonable to conclude that the 1993

20

Ch 4 Sb20 ON : WSSE=L Ubud Pe OnY


l

‘
©

‘4

And we came to the conclusion that the agreement,

ultimate agreement, was that they could--they would have to be

assigned in thelr own craft, in their own installation, on their

own tour of duty if there was work available under those

conditions,

Q. And did the agreement conterhplate the possibility

of assignment across craft lines if those conditions could nat be

satisfied?

A. Yes. (See Tr., vol. 2, pp. 50-51.)

Discussions between the parties ultimately produced the present
language of ELM Section 546,141(a). President Sombrotto's 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. 11 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. By using language

15

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AWARD

Having carefully considered all evidence submitted by the parties
concerning this matter, the arbitrator concludes that the Employer violated
its agreement sit the National Association of Letter Carriers when it
reassigned a full-time regular, partially disabled, current employee of the
Carrier craft to the Clerk craft as a part-time flexible worker. In accordance
with the agreement of the parties, the issue of remedy is remanded to all the
parties so that they may attempt to agree ona negotiated settlement. The
arbitrator shall retain jurisdiction in this matter for 90 days from the date of
the report in order to resolve any problems resulting from the remedy in the
award. It is so ordered and awarded,

Respectfully submitted,

can

Carlton J. Snow [7
Arbitrator

pate [[-4-9%

25

ty 8 U0 ON RAIETL 100 PC “DAY


546.11 General

The Postal Service has legal responsibilities to employees with job-related
disabilities under 5 U.S.C. 8151 and the OPM regulations as outlined below.

ke ae

Likewise, the Postal Service Handbook EL-505 provides, in part:

Procedures

r .
Limited Duty Program

When a limited duty program is needed...

Obligation: Assigning Employees to Limited Duty Positions

The USPS has legal responsibilities to employees with job-related disabilities
under OPM regulations. Specifically, with respect to employees who partially
recover from a compensable injury, the USPS must make every effort to assign the
employee to limited duty consistent with the employee’s medically defined work
limitation tolerance. The USPS, in assigning employees to limited duty, must
minimize any adverse or disruptive impact on the employee (ELM 546.141),

SOR a ok ok

Thus, a primary purpose of ELM Part 546 is to comply with the FECA by

making provision for the assignment of injured employees to limited duty or

13

yl Sht0- OW a ° WeGG2L 1190 “be “ony


vt

6

the Postal Service headquarters located at 475 L’Enfant Plaza in
Washington, D.C. Messrs. John Dockins and Richard Murmer, Labor
Relation Specialists, represented the United States Postal Service. Mr.
Keith Secular of the Cohen, Weiss, and Simon law firm in-New York, N.Y.
represented the National Association of Letter Camiers. Mr, Darrell
Anderson and Ms. Melinda Holmes of the O'Donnell, Schwartz, and
Anderson law firm in Washington, D.C. represented the American Postal
Workers Union, as Intervenor.

‘The hearing proceeded in an orderly manner. There was a full
opportunity for the parties to submit evidence, to examine and cross-
exarnine witnesses, and to argue the matter. All witnesses testified under
oath as adininistered by the arbitrator. Ms. Bethany Schields of Diversified
Court Reporting Services, Inc, recorded the proceedings for the parties and
submitted a transcript of 153 pages. The advocates fully and fairly ,
represented their respective parties.

There were no challenges to the substantive or procedural arbitrability
of the dispute, and the parties agreed that the matter properly had been
submitted to arbitration. In the event that the Union prevailed, they

petitioned ‘the arbitrator to remand the matter to the parties for formulation

S900 ON WPESL

1100 ‘pe ony


€

4

arbitration decision is significantly different from the current dispute before
the arbitrator and is not dispositive of this case,

Eyen though not dispositive, reasoning in the 1993 case is useful in
the present dispute to a certain extent. The 1993 case held that it may .
violate conversion rights of part-time flexible employees in the gaining craft
to assign a former employee as a full-time regular employee, (See APWU
Exhibit No, 7, p. 29.) This proposition still has strength. The 1993 case
also held that the Employer is required to show why it is necessary to assign
an employee as a full-time regular worker or risk violating conversion rights
of part-time flexible employees in the gaining craft. (See APWU Exhibit
No. 7, p. 25.) The reasoning remains sound and should provide a useful
guideline in future disputes,

According to the analysis set forth in the 1993 case, the Employer in
the current situation would have the burden of showing why the disabled
employee is required to cross craft lines and retain her status as a full-time
regular employee, It might try to justify the action to the exclusive
representative of the gaining craft on the ground that to do otherwise would
violate management’s agreement with the NALC, Another circumstance,

however, makes application of the 1993 decision more difficult today,

21

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W100 "be ny


whether they constituted “necessary work.” Applying this criterion, without any
other change in relevant circumstances in these cases, the agency reassigned work
away from the employees who had previously been accommodated and eliminated
their duty assignments. In each of these cases the work continued to be available
and continued to be performed by other postal employees notwithstanding the
agency’s contention that it was not “operationally necessary” to combine the work
into a single duty assignment for the employee who previously had been
accommodated. !

Thus, in each of the referenced arbitration cases, the arbitrator held that the
Postal Service had violated the collective bargaining agreement by reassigning
work that previously had been assigned to permit restoration when it did so without
any justifying change in relevant circumstance. Ifthe appellant makes a non-
frivolous allegation that the Postal Service reassigned work that had been assigned
to permit restoration and did so without any change in relevant circumstance, we

would urge the Board to find that the appellant made a sufficient allegation that the

' Bisenmenger Award at 29, 31; Sherman Award at 29-30; Duffy Award at 6;
Monat Award at 8.
4

Sd Gete ON WAEE:L 1402 72 n¥


their users and their hearers or readers, A word hes no meaning
apart from these factors; much less does it have an objective
meaning, one true meaning. (See Pacifie Gas and Electric Co.
v. G. W. Thomas Drayage and Rigging Co,, 442 P.2d 641, 643
(1968)

Words find their meaning in context.

Mr. Vince Sombrotto, President of the National Association of Letter
Carriers, testified that in 1979 he participated in negotiating changes to
relevant portions of the Employce and Labor Relations Manual at issue In
this case. Asked if he knew the circumstances which gave rise to the
disputed language as a settlement to a Step 4 grievance, Mr. Sombrotto
described the situation which led to the grievance as follows:

I had been hearing some, what I care to describe as horror
stories about letter carriers that were on—were injured on the
job and were being, in their view, harassed by management by
being required to be assigned limited duty well beyond the
installation that they worked in and on tours that they--that
were alien to them.

I recall a particular case in Texas where the carrier had to
po 90 miles to a different installation to go to work at 2:00 am.
in the moming when the carrier’s original starting time was
7:00 a.m., and he worked until 3:30. And here he was required
to go 90 miles from his employing installation and report for -
duty at 2:00 a.m. in the morning.

Q. So just so we are clear, these were carriers who |
jiad been injured on the job and who would be eligible for
worker's compensation if they weren’t working,

A. That is correct.

4 GbE nIEEEL

hil?

7"


e

NATIONAL ARBITRATION PANEL
Inthe Matter of Arbitration +);

)
between ) Grievant: B, Tate.
)
UNITED STATES POSTAL ) + Post Office: Memphis, Tennessee
SERVICE — )
) Case No. HO4N-4H-C 96090206
and )
)
NATIONAL ASSOCIATION OF )
LETTER CARRIERS )
; )
with )
)
AMERICAN POSTAL WORKERS )
UNION )
(intervenor) )
4 BEFORE: Carlton J. Snow, Professor of Law
APPEARANCES: For the Employer: Mr. John W. Dockins

Mr. Richard A, Murmer
Forthe NALC; — Mr. Keith Secular:

For the APWU; Mr, Darrell Anderson
Ms. Melinda Holmes

PLACE OF HEARINGS: Washington, D,C.

DATES OF HEARINGS: September 17, 1997
April 21, 1998

POST-HEARING BRIEFS: August 17, 1998
CONTRACT YEAR: 1994-98

TYPE OF GRIEVANCE: Contract Interpretation

IO ‘d S00 ON Wdre-L i1NC “ve “giy


Carrier craft. The Employer ultimately offered the grievant a “rehabilitation
job offer” according to which she would be permanently reassigned to a
“modified PTF” position in the Clerk craft. Management told her that, if
she did not accept the position, her OWCP benefits might be terminated.
‘The grievant accepted the position under protest,

The National Association of Letter Carriers challenged the
Employer's action by filing a grievance, What the NALC wanted the
Employer to do was to withdraw its offer of a “part-time flexible clerk”
position, and the NALC asked that the grievant be maintained in her cusrent
craft and job status. The NALC also sought reimbursement for all Jost
wages and benefits. Ultimately, the grievance came to Step 4 of the
erievance procedure, When the parties were unable to resolve their
differences, the matier proceeded to arbitration at the national level.

At the arbitration hearing, the parties agreed to limit the issue before
the arbitrator to whether or not the Employer permanently may reassign an
injured, full-time letter cartier to a part-time, flexible position in lieu of

assigning the individual to a full-time, regular position in another craft.

‘d 4920 ON WdPE=L 1100 “72 Or


NATIONAL ARBITRATION PANEL

IN THE MATTER OF
ARBITRATION

between

UNITED STATES POSTAL
SERVICE

ANALYSIS AND AWARD
AND

NATIONAL ASSOCIATION OF Arbitrator

LETTER CARRIERS
with
AMERICAN POSTAL WORKERS
UNION
(Intervenor)

(B. Tate Grievance)

)
)
)
)
)
)
)
)
)
; Carlton J. Snow
)
)
)
)
)
)
f
(Case No. H94N-4H-C 96090200)

i QDUCTION -

This matter came for hearing pursuant to a collective bargaining
agreement between the parties effective from June 12, 1991 through
November 20, 1994 and extended through November 20, 1998, Hearings

occurred on September 17, 1997 and April 21, 1998 in a conference room of

0 “6 Sp00- ON Ware LDC be DAY


Q. And did the NALC havé a view as to why these
abuses were taking place?

A.' Well, it was a tactic being used, at least from, our
viewpoint, to harass people'to come back to work whether they
are injured or not. They didn’t like the idea of paying |
compensation to employees, And the easiest way to get them
off the compensation rolls was to assign them to installations or
facilities within installations that were difficult for them to get
to and tours that were just not within the work scheduling of
the cartier in the past.

As the Union’s concerns about the issue increased, the parties began
discussing the problem. Mr, Sombrotto testified as follows about the nature

of those discussions:

Q. Do you recall with whom you spoke and what the
substance of those discussions was?

A. . Well, with the Postal Service, I believe I spoke to
Jim. Gildea and Bill Henry, at least on some occasions,

Q. . And were attorneys involved in these
discussions?

A. — I don’t recall if attorneys were involved,

Q. And do you recall whether the parties began to
discuss the possibility of resolving the NALC’s concerns?

A. Yes. We were coming down to get to the point
where we could make agreements on a pecking order, as I
recall we termed it, as to where—what would be a carrier's
rights that was on limited duty, where that carrier would be
assigned, when they would be assigned, and so on.

14

9¢ d = S¥00 ON NAGEL 1102 “70 “ony


and cannot be violated by applying, either the FECA regulations or the ELM

provisions concerning limited duty and rehabilitation assignments.

CONCLUSION
For the reasons stated above, the Board should hold that if the

appellant made a non-frivolous allegation that the Postal Service reassigned work
that had been assigned to perinit restoration and did:so without any change in
relevant circumstance, then the appellant made a sufficient allegation that the
action of the agency was arbitrary and capricious within the meaning of 5 C.F.R.
353,304(c) and the Board has jurisdiction. In cases in which relevant
circumstances have changed, such as in the case of excessing of employees due to
loss of mail volume, and the appellant is contending that because the Postal
Service made use of the NRP criteria it violated the ELM or otherwise violated the
applicable collective bargaining agreement, such an allegation of contractual
violations is not a rion-frivolous allegation of arbitrary and capricious behavior
within the meaning of 5 C.F.R. 353,304(c), Such cases should be resolved on a

case-by-case basis under the terms of applicable collective bargaining agreements.

Vv

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(d) Partially recovered, Agencies must make every effort to restore in the
local commuting area, according to the circwnstances 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. employees substantially the same as other handicapped
individuals under the Rehabilitation Act of 1973, ay amended. (See 29
U.S.C, 791(b) and 794.) If the individual fully recovers, he or she is entitled
to be considered for the position held at the time of injury, or an equivalent
one. A partially recovered employee is expected to seek reemployment as °
soon as he or she is able.

[Emphasis added here.] The reference to the Rehabilitation Act makes it.clear that
restoration under FECA does not permit violation of the seniority provisions of a
collective bargaining agreement. As the Supreme Court observed in U.S. Airways
y. Bamett,-535 U.S. 391, 403-404 (2002), the lower courts have unanimously
found that collectively bargained seniority trumps the need for reasonable
accommodation in the context of the ... Rehabilitation Act.” [Citations omitted.
Thus, the FECA regulations, by expressly incorporating by reference standards for
accommodating handicapped individuals under the Rehabilitation Act, make
provision for deference to collectively bargained seniority,

Moreover, Postal Service Handbooks and Manuals, including the ELM,

* Under the Americans With Disabilities Act, the Court held in Barnett, the fact that
an assignment would violate the rules of a seniority system ordinarily means that
the accommodation is not a reasonable one. Id., at 403.

9)

Ob ‘d  Sb20 ON : WaSE-L L102 #2 ONY


Vi. ANALYSIS

A. — Contextualizing the Dispute

Atissue in this dispute are reassignment rights of partially disabled
employees who sustain injuries on the job. The National Association of -
Letter Carriers argued that, [fan employee injured on the Job was a full-time
regular employee, such a worker, then, must be transferred to a full-time,
regular position in another craft if a cross-craft transfer is necessary. The
Employer, on the other hand, argued that, while normally it might agree
with such a decision, a prior arbitral decision specifically held that eross-
craft transferees must enter the craft as part-time flexible employees if part-
time flexible employees already are in the gaining craf. Otherwise,
conversion rights of part-time flexible employees in the gaining craft are
violatéd, Adding a layer of complexity to the issue is the belief of the
American Postal Workers Union that, since the two.unions no longer -
bargain jointly, it is necessary for the APWU to intervene in drder to be
certain that its bargaining unit members are protected. It is the contention
of the APWU that all incoming cross-craft transfers of partially disabled
employees must enter the craft as part-time flexible employees if there
already ere part-time flexible employees in the clerk craft of that

Installation,

ll

SHE “ON Waseed 100 22 “On¥


B. The American Postal Workers Union

It is the position of the American Postal Workers Union. that, when
reassigning a letter carter to work in an APWU craft pursuant to BLM
Section 546, the Employer must make the assignment in a manner that
complies with the APWU Natlonal Agreement, This essumes that such
assignments do not impair conversion rights of part-time flexible
employees. Accordingly, the APWU contends that, ifa partially recovered
letter carrier is assigned to perform clerk work in a location where part-time
flexible clerks are working, the letter carrier must become a part-time
flexible clerk. ,

It is the belief of the APWU that Section 546 of the ELM as well as
the EL~505 Handbook require this result. The Handbook, according to the
APWU, requires compliance with the National. Agreement of the APWU.
when a letter carrier is assigned to perform clerk work. The Union also
contends that a letter carrier injured on duty and partially recovered may
seek assignment as a full-time regular clerk by applying for such assignment
pursuant to Article 13 of the NALC National Agreement. Under that
contractual provision (which the parties have agreed may be applied as
though the NALC and APWU were still engaged in joint bargaining), part-

time flexible conversion privileges may not be adversely affected because

Of ‘4 $b20 ON WaSE'L 1100 ‘be “ony


doing continued to be done and had merely been taken away frorn him and
reassigned to other employees. Furthermore, also in contrast to the referenced
arbitration cases, the agency provided evidence that it had taken a series of steps in
an effort to find work within the employee’s medical restrictions. On those facts,
the Administrative Judge found that the agency’s denial of restoration was not
arbitrary and capricious.

In our view, the denial of jurisdiction in the Latham case is correct for two
reasons. First, given the changed circumstances in that case and the fact that the
agency showed that it made a purposeful and thorough search for suitable work
within the employee’s normal commuting area, it hardly can be said that the
agency’s actions were atbitrary and capricious. Accordingly, the Board lacks
jurisdiction under Section 304(c).

Second, this case well illustrates the reason why the Board has not been
given jurisdiction over mere contract violations. Not every violation of an
agency’s rules concerning testoration of injured workers to duty is an arbitrary or
capricious act. Whether or not the implementation of the National Reassessment

Program was itself a violation of the collective bargaining agreement is a subject

i'd GOO CK , WofE 2 L100 “pe “ony


action of the agency was arbitrary and capricious within the meaning of 5 C.F.R.
353.304(c),

This is not to say, however, that every decision to deny restoration that may
violate a collective bargaining agreement is arbitrary and capricious, In this
regard, the circumstances in Latham v. United States Postal Service, No. DA-0353-
10-0408-I-1; 2010 MSPB LEXIS 5155 (Séptember 2, 2010) provide a useful
counterpoint to the arbitration awards referenced by the Board. In that case, the
circumstances had changed. As the Administrative Judge observed (id., at 2):

the agency reported that because of various market factors there has
been an unprecedented reduction in the agency's workload; that less mail to
be delivered means that there is less work at the agency; and that the agency
instituted the NRP to review all rehabilitation and limited duty assignments
to ensure that such employees were performing operationally necessary tasks
within their medical restrictions, The agency indicated that the appellant was
subject to the NRP review and, based on his medical restrictions and the

operationally necessary tasks identified at his facility and within his local *

‘commuting area (50 miles), the appellant was informed that there was no
work available. AF Tab 6.

Thus, the agency’s determination that it could not continue to provide restoration
to the employee resulted in part from a change in circumstances, an unprecedented
reduction in the agency’s workload. In contrast to the circumstances in the

- referenced arbitration cases, the employee did not show that the work he had been

5

96 GOON NAGEL 1100 PC “SOY


With regard to the question of the agency's restoration obligatior
under the ELM, it is important for.the Board to recognize that this is fundamental
a contract question, that the ELM and the EL-505 Handbook cannot conflict wit!
and must be read in harmony with any applicable collective bargaining agreeni
and that the application of the ELM any require the interpretation and applic

of more than one collective bargaining agreement.

Respectfully submitted,

Daftyl J/Ayderspn
‘D 7 SCHWARTZ &
ANDERSON, P.C.

DC Bat # 154567 .
1300 L Street, NW, Suite 1200
Washington, D.C, 20036
202.898-1707 (0)
danderson@odsalaw.com

18

61 “S900 ON



ISSUE TWO

What is the extent of the agency's restoration obligation under the ELM, ie¢., under
what circumstances does the ELM require the agency to offer a given task to a
given partially recovered employee as limited diity work?

’ We address this issue primarily to emphasize one central point: The
provision of limited duty or a permanent rehabilitation assignment that includes
work within an APWU bargaining unit must be done in accordance with the
seniority provisions of the APWU National Agreement.” Neither the FECA nor
the ELM permits violation of the National Agreement as a means of providing

restoration rights. The pertinent FECA regulations, 5 U.S.C. § 353.301(d) make
express reference to reasonable accommodation of handicapped individuals under

the Rehabilitation Act:

> We observe that the Board seems to be using the term “limited duty” to
refer to duties assigned to partially disabled employees who are covered by 5
C.F.R, 353.301(d) regardless of the duration of their disability and regardless of
whether their partial disability is permanent. In the cases consolidated for this
docket, and in the arbitration cases referenced by the Board, the employees
involved have been partially disabled for a substantial period.

Under the Postal Service’s Employee and Labor Relations Manual (ELM),
“limited duty” is used to refer to assignments for employees who are still
recovering, and the term “rehabilitation assignment” is used to refer to assignments
for employees whose partial disabilities are considered to be permanent.

8

dd SblG OR WEEtL LLO0 2 ONY


ofaremedy. The arbitrator officially closed the hearing on August 17, 1998

after receipt of the final post-hearing brief in the matter.

Tl. STATEMENT OF THE IssuB

The issue before the arbitrator is as follows:

Did the Employer violate the parties’ agreement by
assigning the grievant to the Clerk Craft as a part-time flexible
employee rather than as a full-time regular employee? If 80,
what is an appropriate remedy?

SU ‘d  $b20 ON Weed F100 “pe ony


DARRYL J. ANDERSON:
LEE W. JACKSON
ANTON G. HAJJAR*
RICHARD S. EDELMAN
PETER J. LEFF
MELINDA K, HOLMES
RopeR’ J, SHORE

‘aLsomo

We are transmitting (49 ) pages, including this cover sheet.

TO:

FAX NUMBER:
FROM:

DATE:

MESSAGE:

O'Donnell, Shaurty, ¢ Anderson, PG

GCounselons at Law
1300 L Svcct, NW, Seite 1800 sony r OONNELL
Washington, DG &, 20005-4186 Rates| w. SCHWARTZ

(202) 898-1707

MARTIN R. GANZGLASS
FAX (202) 682-9276 MHENGKGnEWACK

OF COUNSEL

RD we
FACSIMILE TRANSMISSION SHEET

‘

MERIT SYSTEMS PROTECTION BOARD
Attention: Mr. Mathew Shannon

202-653-7130
DARRYL ANDERSON
August 24, 2011
Please file the following Amicus Brief and

Appendix on behalf of American Postal Workers
Union, AFL-CIO

If you have any problems with this fax or do not receive the entire fax, please
telephone us. If you received this communication in error, please immediately
notify us by telephone. Thank you.

OUR TELEPHONE NUMBER IS: (202) 898-1707

Nid “WOW d
1 'd 9p00 ON

OUR FAX NUMBER IS: (202) 682-9276

WEL 100 “Pe “ONY


L
7

4d

Arlesther Reaves
Appellant.

[Agency's Opening Brict

‘US Postal Mail

Cynthia E.
Appellant

Lundy

Agency's Opening Briel ~

[US Postal Mail

H.R. Pritchett
Appellant Represeutative

Postal Employee Advocates &6 Exst
Merrill Road

IMvCarmmon, ID 83250

[USA

Agency's Opening Brief

US Postal Mail

Geraldine Manzo
Appellant Representative

7700 Edgewater Drive Suite 656
Ockland, CA 94621
USA

Agency's Opening Dict |

US Postal Mail

James A. Penas
Appellant Representative:

3242 Villa Pl.
Amariflo, TX 79106
USA.

Agency's Opcning Brief

US Postal Mail

[Barton Jay Powetl
jOther

(7559 Waterford Drive
Hunover Park, IL. 60133.

JAgeney's Opening Brief.

US Postal Mail

S200 ON

Wade l

1100 ‘pe ‘ony


reassignment, work schedule modification, or placement in a light-

duty job, you must determine whether the proposed accommodation

would violate the terms of a collective bargaining agreement.

The restoration to duty provisions in Part 546 of the ELM also make
express provision for compliance with the National Agreement. But any
consideration of what the ELM requires of the Postal Service must begin
with a fundamental proposition stated in Article 19 of the collective
bargaining agreements between the Postal Service and its major unions.
Handbooks and manuals may not violate the National Agreement. Thus,

Article 19 provides, in pertinent part:

ARTICLE 19
HANDBOOKS AND MANUALS

Those parts of all handbooks, manuals and published regulations of the
Postal Service, that directly relate to wages, hours or working conditions, as
they apply to employees covered by this Agreement, shal! contain nothing
that conflicts with this Agreement, and shall be continued in effect except
that the Employer shall have the right to make changes that are not
inconsistent with this Agreement and that are fair, reasonable, and equitable.
{Emphasis added here,] Accordingly, some parameters of the Employee and Labor

Relations Manual, including provisions related to restoration to duty, are

il

Gd Sb00 ON WHEEL 1100 “2 ‘ONY


expressly recognize the need to comply with the National Agreement. For
example, the meaning of the phrase “eating these employees substantially the
same as other handicapped individuals under the Rehabilitation Act of 1973, is
explained in Postal Service Handbook EL-307, “Reasonable Accommodation, An
Interactive Process.” That Handbook provides: .

Section 1-5.2, at pp. 5-6 Determining What is Reasonable

.... An accommodation is not reasonable when it ,.. creates a job
where none exists, violates the seniority provisions of a collective
bargaining agreement, reallocates or eliminates essential job
functions, o otherwise substantially changes the fimdamental nature
of ajob.

OR OR

Section 2-2.4, at p. 12 Step Four: Determining the Reasonableness of the
Accommodations and Select Options.

..., Consider whether the proposed accommodation would:
ROR Re

violate the terms of a collective bargaining agreement.
- kok OK

Section 2-2,4.3, p. 13 Determining the Impact ou Collective Bargaining
Agreements

The Postal Service is not required to adopt an accommodation that
would violate the terms of a collective bargaining agreement.
Accordingly, if the accommodation involves a job restructuring, job

10

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Pad
en

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Sy

Rights of letter carriers and clerks are-no longer determined
collectively. Management must be diligent in being certain that it can keep
promises it makes (o each craft. If promises to one craft infringe on rights
of another, the Employer is obligated to negotiate the authority to
implement such rights within the craft whose rights are being infringed,
The APWU is correct in asserting ‘that those reassignments and
reemployment decisionsunder Section 546 of the ELM must be
accomplished in accordance with commitments made by management in the
APWU agreement, Simply because complying with one agreement would
violate the other does not relieve management of its obligation to comply
with both.

In order to comply with ELM Section 546,141(a), the Employer {s not
permitted to change the status of a disabled employee when switching
crafts; but if the employee is a full-time regular worker and there are part-
time flexible workers in the gaining craft, then reassigning the employce as
a full-time regular worker could violate conversion rights of part-time
flexible employees in the gaining craft:

Such an assessment, however, must be based on the APWU’s
agreement with the Employer, not that of the NALC, Whether or not such a

transaction violates the APWU agreement is not before the arbitrator in this

23

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Employer contends that settlement negotiations leading to the formulation
of BLM Section 546.14 1(a) are not relevant in this arbitration proceeding.
the Employer also contends that, becauss an employee's status on

reassignment was not discussed in the 1979 settlement negotlations, the
relevance of the negotiation is suspect in this proceeding. It is the position
of the Employer that relevant ELM language is clear and that nothing in
postal regulations or the National Agreement with the NALC gives a letter
carrier a contractual tight to retain full-time-status when receiving 8 cross-
craft reassignment. Accordingly, the Employer contends that the grievance

must be denied.

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the full-time vacancy created by the reassignment would be posted for bid

by employees in the APWU bargaining unit.

C. The Employer

The Employer argues the claim of the NALC that placing a letter
carrier into the clerk craft as a part-time flexible worker violates the
National Agreement is an unsubstantiated assertion of the NALC.
Management contends that there is no contractual language to support the-
NALC’s position and that representatives of the NALC must bargain for the
“full-time status” guarantee being sought by the Union. The belief of the
Employer is that for the NALC to prevail would, in effect, constitute a
rewriting of the parties’ agreement. Additionally, the Employer contends
that ELM Section 546 is silent with regard to the status of reassigned
employees and that, absent contractual language to the contrary, this is an
area of decision-making reserved to management pursuant to Article 3 of
the parties’ agreement.

It is also the position of the Employer that prior national arbitration

awards are dispositive of the issue before the arbitrator. Moreover, the

Ve ‘d  SPCO ON WdSE


that must be left for resolution by the Postal Service and the unions representing its
employees. That resolution may come either in collective bargaining or, if
necessary, through arbitration, In any event, such contract violation disputes are
not within the Board’s jurisdiction. Absent evidence that the agency acted
arbitrarily and capriciously by, for example, denying restoration by applying a new
criterion without any justifying circumstantial change, the Board lacks jurisdiction

to review the agenoy’s action. a ~

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we

AWARD

Having carefully considered al] evidence submitted by the parties
concerning this matter, the arbitrator concludes that the Employer violated
its agreement with the National Association of Letter Carters when it
reassigned a full-time regular, partially disabled, current employee of the °
Carrier craft to the Clerk craft as a part-time flexible worker, In accordance
with the agreement of the parties, the issue of remedy is remanded to all-the
parties so that they may attempt to agree on a negotiated settlement. ‘The
arbitrator shall retain jurisdiction in this matter for 90 days from the date of
the report in order to resolve any problems resulting from the remedy in the

award. It is so ordered and awarded,

Respectfully submitted,

Ck Gul

Carlton J. Snow
Arbitrator

Date: ((-4 48

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week, or shall be available to work flexible hours as assigned by the
Employer during the course of a service week.” (See Joint Exhibit No. 1. p.
15), The same concept is contained in the Employer's agreement with the
American Postal Workers Union. (See APWU Exhibit No. 18, p. 18.)

The contractual language makes clear that having the status of a part-
time flexible worker does not guarantee 40 hours of work a week, This
means that a partially disabled current employee will not necessarily receive
40 hours a week. Likewise, the flexibility inherent in the position of a part-
time flexible worker means that an employee’s schedule and tour of duty
cannot be guaranteed. Even though initially assigned to a tour of duty
similar to a partially disabled-employee’s former position, there is no
contractual protection for such an individual if management should choose
to change the employee's hours or schedule, The partially disabled
employee's circumstances are complicated by the fact that the individual
would be a member of a new bargaining unit, and an exclusive bargaining
agent would not be able to enforce employee rights gained under a labor
contract to which it is not a party.

Inherent in shifting a worker from a full-time regular schedule to that
of a part-time flexible employee is a denial of employee protections that

were gained through the settlement process which produced ELM Section

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employee across craft lines. Like the dispute before the arbitrator, the
transferring employee in the earlier 1993 case belonged originally to the
carrier craft; and management placed the worker in the clerk craft after the
disabling injury.

Despite some factual similarities between the 1993 case and the |
present dispute before the arbitrator, there exists a significant difference
which supports a different view of the circumstances in this case and leads
to a different result. Reliance on the earlier case is not dispositive of the
current situation. The earlier decision continues to be relevant but is not a
key decision to be used in resolving this dispute.

In the 1993 case, the partially disabled worker was a former
employee. The grievant in the dispute now before the arbitrator was stil]
employed at the point of the transfer. (See APWU's Exhibit No. 7, p. 5, and
Jojat Exhibit No, 2.) This fact constitutes a fundamental distinction because
ELM Section 546,14] treats former and current employees differently.

ELM Section 546.141(b) addresses the reassignment of former
partially disabled employees. It states:

Former Employees. 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 he or she

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Vv. POSITION OF ‘THE PARTIES,

A. _ The National Association of Letter Carriers

The National Association of Letter Carriers argues that the Employer

violated its obligation under ELM Section $46.14 by permanently
reassigning the grievant to a part-time flexible position. According to the
Union, the text and purpose of ELM Section 546.141(a)

requires management to minimize any adverse or disruptive impact on
employees. It is the belief of the Union that this obligation prevents the
Employer fom reassigning the grievant as a part-time flexible employee.

It is the position of the NALC that, when management realizes an
injured, full-time regular letter carrier is permanently disabled, only two
options exist. The Employer may allow the employee to continue in limited
duty — in the Létter Carrier craft on an open-ended basis, assigning him
or her to available work in accordance with ELM Section 546.141(a)

‘criteria. Altematively, the Empjoyer may offer the individual a permanent
reassignment to a full-time, regular position in another craft, provided that
the location end schedule of the position meet criteria set forth in ELM
Section 546.141, It is the belief of the Union that the Employer may not.
reassign an employee to a part-time flexible position in another craft

because-such an assignment effectively strips the employee of protection set

gl SPL0-ON Ware 1100 92 ONY


Accordingly, the APWU appreciates the opportunity to submit its views to the
Board as Amicus and hereby respectfully submits the following Brief for the

Board’s consideration.

ISSUE ONE

May a denial of restoration be “arbitrary and capricious" within the meaning of 5
CFR 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?

In posing this question, the Board has made reference to several regional
arbitration awards. decided under the collective bargaining agreement between the
National Association of Letter Carriers and the United States Postal Service. In
each of those cases, the arbitrator found that Postal Service had, after a long period
of accommodating an injured employee by providing work within the employee's
medical limitations, abruptly applied an additional requirement for restoration that
made it impossible for the employee to qualify for restoration. In each of these
cases the Postal Service had unilaterally implemented its “National Reassessment

Program” under which all restoration assignments were re-examined to determine

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CERTIFICATE OF SERVICE

Amicus American Postal Workers Union, AFL-CIO (AP WU), through its
undersigned counsel, hereby respectfully requests that the Clerk’s Office provide
electronic service of the Brief and Appendix of Amicus APWU.

Thereby certify that [ will send a printed copy of the Brief and Appendix of
Amicus APWU to non-filers by the end of the next business day, as follows:

Name & Address Documents "_|Method of Service
James C. Latham Agency's Opening Brief | US Postal Mail
Appellant

Ruby N. Turmer Agency's Opening Bricf | US Postal Mail
Appellant

87 “d-  GPC0 ON WAS L 1100 be ‘ONY


dispute. The only question to be answered js whether transferring the
grievant to a part-time flexible position would violate the Employer's
obligation with regard to the NALC, That question must be answered in the

affirmative.

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permanent rebabilitation assignments. Part 546 also emphasizes the fact that its
provisions must be applied in compliance with the applicable collective bargaining

agreement:

§46,2 Collective Bargaining Agreements
$46.21 Compliance

Reassignment or reemployment under this section must be in compliance with
applicable collective bargaining agreements, Individuals so reassigned or
reemployed must receive 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
complied with before an offer of reassignment or reemployment is made to a
current or former postal employee on OWCP rolls for more than 1 year,

546,222 Reassignment or Reemployment

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 assignment may be to a residual
vacancy or to a position uniquely created to fit those restrictions; however, such
assignment must not impair seniority rights of PTF employees. ...

Yok ae tok

The fact that the applicable collective bargaining agreement takes

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reassignments and reemployment decisions under Section 546 of the
ELM must be accomplished in accordance with commitments made

by inanagement in the APWU agreement. Simply because complying
with one agreement would violate the other does not Ets
management of its obligation to comply with both.

Tn order to comply with ELM Section 546.14 | (a), the Employer is not
permitted to change the status of a disabled employee when switching
crafts; but if the employee is a full-time regular worker and there are
part-time flexible workers in the gaining craft, then reassigning the
employee as a full-time regular worker could violate conversion rights
of part-time flexible employees in the gaining craft. .

Such_an_assessment, however, must be based _on the APWU's
agreement with the Employer, not that of the NALC...

(Appendix A to this Amicus Brief, at 23) [emphases added here]. This decision by
Arbitrator Snow, unlike the regional awards referenced by the Board in its Notice
of Opportunity to File Amicus Briefs, is a national-level award that has binding
precedential effect on the USPS, the NALC and the APWUS

Thus, it is clear that the seniority provisions of the APWU collective

bargaining agreement are valid and must be applied. They are not modified by,

None of the regional awards referenced by the Board dealt with issue of
compliance with the APWU National Agreement in the situation where a letter
carrier is seeking restoration to work that includes work in an APWU bargaining
unit.

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STATEMENT OF THE INTEREST OF THE AMERICAN POSTAL
WORKERS UNION, AFL-CIO (APWU)

The American Postal Workers Union, AFL-CIO (APWU) represents more
than 200,000 employees of the United States Postal Service employed in the Clerk,
Maintenance, and Motor Vehicle crafts, and in several smaller units of employees.
As the collective bargaining representative of these employees, the APWU has
entered into successive collective bargaining agreements with the Postal Service,
known as National Agreements, beginning in1971. The most recent National
Agreement is the 2010 National Agreement that expires May 20, 2015.

As explained in more detail below, the APWU National Agreement includes
Article 19, which incorporates by reference the ELM provisions that are the subject
of the Board's Notice of Opportunity to File Amicus Briefs. The National
Agreement also incorporates by reference other pertinent postal handbooks and
manuals. Because the APWU National Agreement governs the availability of
suitable work for injured workers performing work within APWU bargaining units,
and because restoration of injured workers often implicates more than one postal
bargaining unit, including APWU bargaining units, the APWU has a unique .

perspective on and direct interest in, the matters under consideration by the Board.

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BE

chosen by management within the context of the negotiation with the Union
meant that the Employer necessarily agreed to limit certain of its managerial
prerogatives with respect to this category of employees.

Arbitrators long have recognized that, absent contractual restrictions,
management is charged-with making work assignments, As one arbitrator
observed, “the right of the Company to assign work... is one of the
fundamental rights of management. ...” (See Olin Mathieson Chemical
Corp, 42 LA 1025, 1040 (1964).) Within the context of relevant
contractual limitations, “the concept of management rights includes all
decisions and activities relating to the direction and control of the
employer’s operations and property.” (See Gruenberg, The Common Law
of the Workplace, 92 (1998).) It, then, is necessary to determine if the
managerial limitation inherent in ELM Section 546.141(a) meant that
reassigning a full-time regular employee as a part-time flexible worker
violated the intent of the parties’ understanding,

Article 7.] (a) of the parties’ agreement sets forth the difference
between full-time and part-time employees. The parties agreed that a full-
time employee “shall be assigned to regular schedules consisting of five (5)
eight (8) hour days in a service week” and that part-time employees “shall

be assigned to regular schedules of less than forty (40) hours in a service

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Ill, RELEVANT CONTRACTUAL PROVISIONS

ARTICLE 12 - PRINCIPLES OF SENIORITY, POSTING,
AND REASSIGNMENTS.,

Section 12.4.A A primary principle in effecting reassignments
will be that dislocation and inconvenience to employees in the
regulard work force shall be kept to a minimum, consistent
with the needs of the service. Reassignments will be made in
accordance with this Section and the provisions of Section $
below.

ARTICLE 19 - HANDBOOKS AND MANUALS

~ Those parts of all handbooks, manuals and published
regulations of the Postal Service, that directly relate to wages,
hours or working conditions, as they apply to employees
covered by this Agreement, shall contain nothing that conflicts
with this Agreement and shall be continued in effeet except
that.the Employer shall have the right to make changes that are
not inconsistent with this Agreement and that are fair,
reasonable, and equitable.

IV. STATEMENT.OF FACTS
Factual disputes are not the focal point of this case. It is reassignment
rights of partially disabled employees that are at issue in the dispute. The

grievant was a full-time Letter Carrier who sustained an on-the-job injury

which prevented her from performing regularly assigned duties,

Management responded by placing her on limited duty status in the Letter

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4

td

UNITED STATES OF AMERICA ‘
MERIT SYSTEMS PROTECTION BOARD

' DOCKET NUMERS
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 AT-0353-10-0369-I-1
MARCELLA ALBRIGHT DC-0752-11-0196-I-1

Appellants

v.
UNITED STATES POSTAL SERVICE

Agency

AMICUS BRIEF AND APPENDIX OF
AMERICAN POSTAL WORKERS UNION, AFL-CIO

Darryl J, Anderson
O’DONNELL, SCHWARTZ &
ANDERSON, P.C.

DC Bar # 154567

1300 L Street, NW, Suite 1200
Washington, D.C, 20036
202.898-1707 (office)
202-682-9276 (facsimile)
danderson@odsalaw.com

Counsel for American Postal Workers
Union, AFL-CIO

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y

‘The departure point in unraveling the disagreement must begin with
any relevant contractual language, In this case, language to be reviewed is
drawn from a regulation found in ELM Section $46,141(a), The regulation

" states:

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 tolerance
(see 546,611). In assigning such limited duty the USPS should

iminimize any adverse or disruptive impact on the employee,

The following considerations must be made in effecting such

limited duty assignments. (See NALC’s Exhibit No. 2, p. 2,

emphasis added.)
The regulation, then, provides a detailed guideline and order of preference
for locating and assigning work for partially recovered current employees.

At. the core of the dispute with regard to ELM Section $46.141(a) is.
the meaning of language in the provision which Penis the Employer to
“minimize any adverse or disruptive impact on the employee.” To gain a
better understanding of what was anticipated when management drafted the
language, it is necessary to review its history. Quoting Arthur Corbia, the
great scholar on contract law, Justice Traynor of the California Supreme
Court observed:

The meaning of particular words or groups of words varies

with... verbal context and surrounding circumstances and
purposes in view of the linguistic education and experience of

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v7

- The two unit have discontinued joint bargaining. This fact greatly
impacts the relevance of the 1993 case to the current situation. The 1993
decision was affected by an underlying assumption which no Longer exists.
That assumption was that both crafts were covered by essentially the same
agreemerit and that compliance with the agreement for one craft, in effect,
would satisfy the Employer's obligation with regard to the other craft,

When the parties chose to negotiate separate agreements, they
separated from the past and wrote a new chapter in their relationship. As Is
so often the case, however, they did not eviscerate the past. The past is
prologue to the future, and the parties brought it with them but in separate
contracts, Their separateness, however, never foresook the tautly knit
structures set forth in numerous manuals, such as the Employee and Labor
Relations Manual. The parties retained a balance between separateness
and ovérall organizational order, The two separate union universes
remained tightly connected by the somber realism of working for one
employer, There are two universes in motion subtly proportioned by

s¢parate contracts. The parties committed themselves to constructing a

balance between contracts while owing their allegiance to a single tradition.

Their individua] contracts are a monument to a performance-oriented future.

22

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forth in ELM Section 546.141 (a) and, therefore, is inconsistent with a 1979
settlement agreement between the parties which resulted in the language of
BLM Section 546.141 (a).

It is the position of the Union that national-level arbitration precedent
suppotts its position-in this case. According to the Union's viewpoint, two
prior cases held that management's assertion (that an injured employee may
be demoted to part-time flexible status) necessarily imply that protections
embodied in ELM 5456.141(a) become inapplicable at the point
management determines that an injury js permanent and thet an employee
must be reassigned. Moreover, the Union contends that case law on which
the Employer relies is distinguishable because the earlier precedent involved
a former employee being reinstated, rather than a currently employed
eroployee being reinstated, as is the case at hand.

It is also the belicf of the NALC that issues argued by the APWU at
the arbitration hearing are not really in dispute before this arbitrator, Relief
sought by the NALC in this case is a return of the grievant to the Letter
Carrier craft, and this action does not adversely affect any APWU clerk craft
employee, in the opinion of the NALC, It is the contention of the NALC
that arguments put forth by the APWU in the case are outside the scope of

the present grievance and should not be addressed by the arbitrator.

$9700 ON Wargel

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determined by the applicable collective bargaining agreement.*

The ELM repeatedly emphasizes that its provisions relating to injury
compensation are intended to comply with the Federal Employees Compensation.
Act, 5 U.S.C, 8101, et seq. (FECA). Thus, Patt 540 of the ELM provides, in par
540 Injury Compensation Program -

541 Overview
541.1 Background
541.11. Law

Under the provisions of the Postal Reorganization Act, 39 U.S.C. 100>
all employees of the United States Postal Service are covered by the Pesto
Employees’ Compensation Act (FECA), 5 U.S.C, 81.

Sk RO ah

546 Reassignment or Reemployment of Employees Injured on Duty

546.1 Law

* By virtue of the fact that Article 19 requires that handbooks and manuals be
continued in effect, the union has a right to enforce handbooks and manual:
through the grievance-arbitration procedure, In that sense, handbooks and mai 4
are incorporated by reference into the collective bargaining agreement. How:
when a provision of a handbook or manual conflicts with 4 provision of th«
collective bargaining agreement, the handbook or manual provision in questi,
invalid,

12

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precedence over the terms of the ELM also has been confirmed by a national-level
atbitrator in a case brought by the National Association of Letter Carriers to
enforce Section 546.141 of the BLM. In that case, Arbitrator Carlton Snow
confirmed the right of the APWU to insist that seniority rights established under its
collective bargaining agreement be complied with when the Postal Service assigns

_APWU bargaining unit work to a letter carrier needing a rehabilitation assignment
under Part 546 of the ELM. The employee had been restored fo duty as a part-time
flexible employee in an APWU bargaining unit. The NALC had filed a grievance
arguing that the letter carrier should have been restored to a full-time assignment,
not as a part-time flexible.

Arbitrator Snow found that the restored letter carrier’s contractual rights had
been violated, but in doing so he cautioned the Postal Service that it could not
violate the APWU collective bargaining agreement in order to accommodate the
injured letter carrier. Arbitrator Snow ruled:

Rights of letter carriers and clerks are no longer determined

collectively. Management must be diligent in being certain that it can

keep promises it makes to each craft. If promises to one craft infringe

on rights of another, the Employer is obligated to negotiate the

authority to implement such rights within the craft whose rights are
being infringed, The APWU is correct in asserting that those

15

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