applying ELM 546.142, the system outlined in Management Contentions would equate to
24 steps with three different levels of seniority. This new system Detroit management is
attempting to develop would establish a “pecking order” for the ELM 546 “pecking order".
Ironically, if you recall Arbitrator Dilts, the USPS testified that they had yet to start this
application to limited duty employees, only rehabilitation letter carriers at this time. {f their
own system were contractually compliant, then they would be in violation of it as well.
Reality is that both of the Service's NRP committee witnesses testified to the language in
ELM 546,141 as applying equally to both limited duty and rehabilitation assignments. After
section 141 of 546 defines who the provision applies to, it then explains both temporary and

permanent restriction positions before ELM 546.142 defines the obligation for all injured

em ingle gr

Another argument raised by the Service within those first few paragraphs is the new
definition of “make work" within the Detroit district. When the Union became aware that the
Service was failing to put Ms. Gruschow on the witness stand, we did the only thing we
could possibly do, have the steward Steve Burt testify to his recollections of the events as
they occurred. Mr. Burt's testimony of those events was unrefutted the USPS Step A
representative. To take it a step further, the USPS did rebut any of Mr. Burt's testimony
offered to you on the 23". Mr. Burt stated that the USPS had taken the position “make
work” was any work performed in another craft, work defined by they USPS as EAS work,
or anything they might declare to be miscellaneous. Their new definition of “make work"

would not only include cross-craft assignments but any work which could be performed by

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
34


-M-01316

Lapor Retanons
UNITED SYOTES
POSTAL SERVICE
RECEIVED
MAY 1 8 1998
Mr, William H. Young CONTRACT ADMINISTRATIN unit
Vice President WALC. WASHINGTON, D.C,
National Association of Letter
Carriers, AFL-CIO -

100 Indiana Avenue
Washington, DC 20001-2196

RE: F94N-4F-C 96032816
WHITLEY, P.
SONOMA CA 95476-9998

Dear Mr. Young:

Recently, our representatives met in a pre-arbitration discussion of the above
referenced case,

After reviewing the matter, it was mutually agreed that in the instant case there Is
no interpretive Issue presented.

However, the parties agree that pursuant to Article 3, grievances are properly
brought when management's actions are inconsistent with applicable laws and
regulations.

Please sign and retum the enclosed copy of this decision as your
acknowledgment of agreement to settle this case and remove the case from
national arbitration,

Sincerely,

H. the,

Pete on William H. Young : Ud
‘Arbitration

Manager Vice President
Grievance and: National Association of Letter

Caniers, AFL-CiO

Date: fai 9p

47S UEnsant Praza SW
Wasrtwaron OC 20260-4100



Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 2

I believe the answer is unequivocally yes. This is because the ELM language at
issue was constructed for the express purpose of implementing the law, under title 5, :
and the related Code of Federal Regulations pertaining thereto. The law itself, and the
CFR implementing the law have been adequately described in a document entitled
“withdrawal or Failure to Provide Limited Duty — Guide to NRP ~ National Reassessment
Process” constructed by the National Association of Letter Carriers. The following
explanation has been excerpted from that document.

The origin for the USPS legal obligation for limited duty is derived as follows:

The laws for the United States are compiled into what is known as the U.S. Code. The
U.S. Code has 50 titles. Title 5, called “Government Organization and Employees”, is the
one that pertains to federal workers. Within Title 5 is Chapter 81—"“Compensation for
Work Injuries.” This is where the general law is found related to all aspects of work
injuries in the federal workplace. One section of that law, 5 USC 8151 (Civil Service
Retention Rights), grants authority to the Office of Personnel Management (OPM) to
issue the specific regulations for restoration to duty following an on-the-job injury.

The OPM took the authority granted to it by 5 USC 8151 and issued regulations
regarding restoration to duty in the Code of Federal Regulations (CFR). The regulations,
are found in 5 CFR Part 353 - “Restoration to Duty from Uniformed Service or
Compensable Injury.” The regulations in 5 CFR 353 grant varying restoration rights to
injured workers depending upon the timing and extent of recovery following the injury...
Naturally, some employees will fully recover following an on-the-job injury, while others
will not, This Guide focuses on the latter - employees who have not fully recovered, but

are able to work limited duty. These employees are further broken down into 2


The deficiency in the Postal Service ' s case is that it failed or was unable to
bring forward substantiation of the testimony of Tan and Davis which, while
credible as reflecting evaluation and decision with respect to assigning the grievant,
did not possess the qualitative detail, supported by documentation necessary
to meet the burden imposed upon the Postal Service to show, in the words of
Arbitrator Lange, that"... it attempted to implement the progression at each step
prior to the level of the modification of craft duties , non-craft duties, work hours , or
work location that was finally implemented . " In essential terms, the testimony of
each was in the nature of " bare assertions " pertaining to findings made and
conclusions reached. It was dependent upon recollection, augmented by expertise
and insight , to be certain .

Arbititrator Barker further opines:

This same deficiency in documentation carries over to the other six stations -
comprising the Bakersfield Post Office . The testimony of Tan and of Davis Is
entitled to be weighed favorably in any evaluation of the proof submitted by
the Service, but It ls not sufficient , standing alone , to carry the burden. The
memoranda from other station managers relative to the unavailability of
limited duty work in their facilities , in evidence as Management Exhibit 3,
referencing the time period of June and July 1989, Is entitled to little
evidentiary weight as reflecting the situation that pertained in the February
8, 1990 through September 15, 1991 time period relevant and pertinent here.
A state of affairs once existing in the staffing of Postal operations and facilities is
not presumed to continue unchanged over so extensive a period of time and in an
operation as labor intensive, viable and dynamic .

In this case is that there isn't even one day of proof to show continuation of the

“ongoing” job search beyond the job offer after moving her from Linwood to the Mailhandler

craft. Both Bunch and Doss testified that they did not believe they had to continue the

search if the employee was able to continue working at the new location or had not

experienced a change in medical conditions. She was moved into the mail handler craft and

subsequently excessed to Pittsburgh as a mailhandler which violates the requirement in

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442

43



redefining existing contractual language in our next two citations, one awarded within the

last two weeks and the other two in the last few months.

Arbitrator Vonhof EQ6N-4E-C 08200936
Yet another case directly on point is the award of Arbitrator Jeanne M Vonhof, in which
she states on page 16...

In this case Management has argued that there was not sufficient work for
the grievant to perform within his limitations at the Gladstone branch so as
to justify keeping him in the Modified Rehabilitation position he had
occupied for the previous 9 years. The Service has not established that
the work he had been performing under this position no longer exists.
In describing the reason for change, the Service points to duties in the
grievant's position that are clerk or management duties, and argues
that there was not sufficient carrier work for a full-time position at
Gladstone.

Further on the same page...

At Step B Management argued that the Greivant was performing Clerk work
under his 1999 Modified Rehabilitation Position and this violated the Clerk
Craft contract. However, that issue has clearly been laid to rest in a national
award, USPS and APWU and NALC, Case No. E90C-4E-C 95076238 (Das,
Arb, 2002) where he ruled that a position uniquely created for a Carrier out of
Clerk duties need not be posted for bid as a Clerk craft position because,

In this case, the rehabilitation assignment in question was not
created 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 to be posted for bid.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
54


RICK GALLO

From: - KENOSHAAPWU840 [APWU840@wi.rr.com]

Sent: Wednesday, August 24, 2011 2:46 PM

To: ‘mspb@mspb.com'

Subject: Amicus Brief

Attachments: AMICUS BRIEF.docx; Moore NRP Brief.PDF; USPS(LegalBrief). PDF; m01010. pdf;

m01264. pdf; m01316.pdf; m01550.pdf; m01706.pdf

Dear Sirs:
I tried unsuccessfully to contact you via telephone today.

I spoke to Matthew Shannon in the Office of the clerk of the Board on Monday 8/22. I was advised
that I could file an Amicus Brief regarding James C. Latham, et al v. U. S, Postal Service [DA-0353-
10-0408-I-1] via electronic filing. Your system will apparently not allow it.

The Amicus Briefs are due today — August 24, 2011. I am attaching the Brief, and supporting
attachments to this e-mail.

Additionally, I will Express Mail the Brief with attachments postmarked today. I hope the postmark
will allow my Brief to be accepted as “filed” on today’s date.

Thank you in advance for your anticipated cooperation. =

Sincerely,

Richard M. Gallo, President

Kenosha, WI Local, A.P.W.U.

Director of Education and Organization
A.P.W.U. of Wisconsin



It has been established that National Level Arbitrations are binding in Regional
Arbitrations as established in the Step 4 Settlement M-1372. Since the Bernstein decision
in 1987 there have been numerous Regional Arbitrations that have relied on that decision
in support of the union's position.

Before listing a few of those arbitrators lets look back at the testimony from the NRP
members. Not once during the hearing did the USPS advance an argument that they
followed their contractual and legal obligations in pursuit of work for Vesta Moore to place
her back in her facility at Linwood Finance working as a city letter carrier. Injury
Compensation manager and NRP team member Ken Bunch was questioned about putting
an employee back to their original place of injury. He stated that he didn’t believe that was
a requirement unless something happened to the new job offer. National Arbitrator

Bernstein disagrees with those positions held by the Detroit NRP committee. .

Arbitrator Barker W7N-5N-C 22042 pg. 18

Arbitrator Lange's analysis and summation is consistent not only with the literal
language of Section 546 .141, but accurately reflects the clear weight of arbitral
authority In stressing the ongoing, continuing obligation on the part of
management to remain vigilant for work opportunities within the tolerance
limitations of limited duty employees so as to comply with the “every effort”
and “minimize any adverse or disruptive impact on the employee" mandate of
Section 546 .14

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
49


JCAM pages 13-10 and 13-11

Limited Duty work Is work provided for an employee who is temporarily or
permanently incapable of performing his/her normal duties as a result of a
compensable illness or injury. The term limited duty work was established
by 5 Code of Federal Regulations, Part 353—the O.P.M. regulation
implementing 5. U.S.C. 8151(b), that portion of the Federal Employees’
Compensation Act (FECA) pertaining to the resumption of employment
following compensable injury or illness. USPS procedures regarding limited
duty are found in Part 540 of the Employee & Labor Relations Manual
(ELM). The Office of Workers’ Compensation Programs has the exclusive
authority to adjudicate compensation claims and to determine the medical
sultability of proposed limited duty work. However, ELM Section 546.14,
below, provides for additional rules that must be observed when
offering limited duty work.
546.14 Disability Partially Overcome
546.142 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 Postal Service 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 Postal Service should
minimize any adverse or disruptive impact on the
employee. The following considerations must be made in
effecting such limited duty assignments:
(1) To the extent 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.
(2) lf 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.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALC BR1 DRT#06-130442


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

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

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

Vill. The APWU's Current Arguments Have Been Rejected In a Previous National
Arbitration Award

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

12


5 CFR 353.301(d)

Partially recovered. 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 means treating these
employees the same as other handicapped individuals under the
Rehabilitation Act of 1973.

Vi. UNDISPUTED FACTS OF THE LOCAL PARTIES
NONE.
Vil. CONTRACTUAL HISTORY FOR THE INJURED EMPLOYEE

Prior to 1979 the Service was only required to restore injured workers into “established
jobs”. Also the old ELM language specifically referred to returning injured workers to
productive employment. ELM Issue 1, 4-1-78: -

546.21 The early return of an injured or ill employee to productive
employment is a prime means of therapy and rehabilitation. Maximum
efforts shall be given toward assignments for employees with occupational-

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442 -
14


rehabilitation assignments. Rehabilitation assignments are created as
a result of legal, contractual and regulatory mandates.

Mr. Dockins rightfully defended those actions, the NALC was a joining party to the
USPS position in that hearing that Arbitrator Das decided. The following is what Das had
to say about the NALC involvement in that case.

The NALC as an intervener in this case, agrees with the Postal Service’s

position that a rehabilitation position “uniquely created” to accommodate
a specific injured employee does not have to be 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 are
created under ELM 540 for the express purpose of providing an
assignment to a person on limited duty...

As you can see our position of past practice has been consistent from the period of
1979 when the implementing regulations of FECA required the USPS to bring the ELM
Section 546 in compliance with the Act. The correction made by the USPS in 1979 to bring
the FECA regulations into contractual compliance were a result of the negotiated language
in Article 21.4 of the National Agreement of all crafts at that point in time. ALL CRAF ts
AND THE USPS held this to be the position of the parties, therefore binding. The
Obligation to injured employees is both a contractual and legal obligation to find these
people work within their restrictions.

This was Arbitrator Das within his award responding to both the APWU and the
joining parties, the NALC and USPS...

The General Clerk Modified assignment in question consists of a
number of clerk duties - - a subset of duties included in the standard

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
39


THE EMPLOYEE AND LABOR RELATIONS MANUAL (ELM)

541.11 Law

Under the provisions of the Postal Reorganization Act, 39 U.S.C. 1005 (c), all
employees of the United States Postal Service are covered by the Federal
Employees’ Compensation Act (FECA), 5 U.S.C. 81.

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,

546.141 General

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.

546.14 Disability Partially Overcome

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

Current Employees. When an employee has partially overcome a
compensable disability, the Postal Service 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 Postal Service should minimize any adverse or disruptive
impact on the employee. The following considerations must be made in
effecting such limited duty assignments:

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
10



Section 546 .141 and does not shift the burden of proof to the Union to
demonstrate that work was available.

The Union maintains that the Service has not met the necessary requirements in the ELM
to eliminate Vesta Moore's modified job. In further support of the union's position on this
matter the union has submitted a number of other regional arbitrations supporting our
position.

Arbitrator Barker W7N-5N-C 22042

The testimony was credibile and demonstrated effort at various stages to achieve
appropriate placement of the grievant In accordance with the requirements of ELM 546.141
. But the testimony was insufficiently detailed, precise and documented to carry the burden
imposed upon the Postal Service . Pertinent to the present case is the concept discussed
by Arbitrator Lange, in Case No. W4N-5C-C 43785 . Therein, Arbitrator Lange observed

In order to successfully defend against an employee 's challenge to a
limited duty assignment , the Service must make at least a prima
facie showing that It has attempted to implement the progression
set out in the ELM and has been unable to make a successful
accommodation at each step prior to the level of the modification
of craft duties, non-craft duties, work hours, or work location that
was finally implemented . The showing may be made by way of
documents, testimony, or other relevant and admissible evidence . After
the Service has made an acceptable showing that it has attempted to
Satisfy each step in the progression of Sections 546 .141a-c, it may then
allege that no work is available at the regular work location that an
assignment within the parameters of Section 546 .141d is the only
appropriate course of action . The burden to challenge the lack of
available work at the employees regular assigned work location then
Shifts to the Union . However, a bare assertion that there was no
available work, without additional substantiation is insufficient to
demonstrate compliance with Section 546 .141 and does not shift
the burden of proof to the Union to demonstrate work was
available .

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
42


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

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

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

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

IX, Creation of the Rehabilitatior ignment Doe: mpai; Cle
Seniority Rights

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

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

13


injured letter carrier a limited duty job in the clerk craft. The APWU filed a grievance
maintaining that the position should be given to a member of the clerk craft. The Service
defended their position by stating that the position was not posted for bid because the
limited duty work had no operational necessity and that the position was created out of its
contractual and legal obligations. Relevant excerpts from the Dockins brief for the USPS
are as follows:

Pg.2 The rehabilitation assignments at issue are by definition uniquely created
for employees who were injured on the job and continue to have work
restrictions. A uniquely created rehabilitation assignment is therefore not an
Article 37 duty assignment. It only exists as a result of the need to reassign
an injured employee.

Pg.4 If there was a bona fide operational need for the craft duty assignment it
would have been created long before the rehabilitation assignment was
created,

Pg.4 However, nothing in the Agreement impedes management's exclusive
right to assign employees to work when or where they are needed and create
Article 37 duty assignments to maintain efficiency of the operations. This is
in sharp contrast to the rehabilitation assignments created under Article 21,
Section 4.

Pg.6 In the instant case..,the rehabilitation assignment was created as a result
of the injury compensation contractual requirements. The rehabilitation
assignment did not exist before the employee was injured on duty and would
never have been created by management because no need for the Article 37
duty assignment existed.

Pg. 7 Article 37 duty assignments and Article 21 Rehabilitation Assignments
are separate and distinct...Such Article 37 duty assignments are driven solely
by management's operational needs. This is not true for rehabilitation
assignments. Rehabilitation assignments are created as a result of legal,
contractual and regulatory mandates.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
20


examination of submitted post-hearing briefs by the parties, we are confident that you will
be convinced a breach of our collective bargaining agreement occurred. With that sald,
they only way to repair the harm the grievant suffered, at a minimum, is the execute

requested remedy of the. NALC,

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
62


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1 7
Submitted by; Richard M. Gallo Page 12

and ELM Section 546. When the injured employee vacates the assignment, it will no
longer exist.

Pg. 13 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.

P9.15 Finally, the Postal Service contends that testimony in the record shows

1 pa: th je rts its position.
Pg. 17 Additionally, the implementation of the APWU’: iton wi lead to-
a continuous game of musical chairs with rehabilitation assignments being
created and abolished while the injured employee is no closer to bein
resto! uty as requit Jaw.
August 19, 2005 (M1550)
In a correspondence dated August 19, 2005 the Service acknowledged their
responsibilities regarding a series of grievances which arose out of Valley Stream, New
York: .
First, the NALC is concerned that "... management appears to assert that it has no duty
to provide Limited-duty to an injured letter carrier if the carrier cannot deliver mail,

even though the employee is capable of performing casing and other letter carrier

duties In the office." -


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 5

assignments for employees with occupational-related illnesses or injuries to
established jobs which are not medically contraindicated, and within the

requirements of applicable collective bargaining agreements.

The language and application of the above provision was subsequently changed in 1979
as the result of a dispute over the language placed in the first edition of the ELM. This
was following the Postal Reorganization Act which placed all employees under the
Federal Employees Compensation Act [FECA]. Section 540 of the ELM was the means of
implementing the injury compensation program set forth in the FECA. The national :
Parties negotiated the new provision and placed it into the ELM and the basic language
has never been changed. M-1010 changed the language in the ELM 546.142 requiring
the Service to no longer limit its search for work for injured workers to just
established jobs or productive work. These words were removed from the language
in the ELM and replaced with the language mirroring the "must make every effort"
terminology found in 5CFR 353.301(d).

It should be noted that the words “established jobs" were replaced with the new ELM -
language which provides “limited duty" work that is available within or without the
employees craft, work facility, and regular work hours. The words “maximum efforts”
were replaced with "must make every effort". The previous reference to “productive”
work was eliminated from the old 1978 ELM provisions. Since 1979 the USPS, until
recent implementation of NRP by a few over zealous districts, the USPS has agreed with

the NALC, Looking over the M-1550 document of the USPS response to the NALC

questions on the NRP program and the M-1706 document, settlement of the NRP


injured rural carrier to a full time regular position in the clerk craft violated Article 1.2 or
Article 13. Aaron held:

It is obviously too late in the day for the Union [APWU] to challenge
the proposition that FECA regulations can augment or supplement
reemployed persons contractual rights. The language of Article 21,
Section 4 of the 1981- 1984 Agreement, previously quoted, makes clear
that the rights of such persons can be augmented or supplemented by
federal regulations, with which the Postal Service must comply.

...(T)he applicable regulations, previously quoted, make it clear that an
employee who has partially recovered from an on- the-job accident, and for
whom no work within prescribed medical limitations in his or her own craft
is available, must be offered a position in another craft in the same
work facility that minimizes adverse or disruptive impact on the employee.
[Emphasis added]

In 1987, National Arbitrator Bernstein in Case No. H1N-IJ-C23247 settled a
dispute clarifying the Service's obligation to continue to search for work for an injured

worker as for the duration of that workers employment:

Pg. 10 Further, the present National Arbitrator is not bound in any way by awards
issued by regional arbitrators on this issue . The whole purpose of the national
arbitration scheme is to establish a level of definitive rulings on contract
interpretation questions of general applicability . National decisions bind the
regional arbitrations, and not the reverse .

Pg.13-14 The Arbitrator holds that this interpretation of the provision is barred by
the specific mandate in the section that the Service “should minimize any adverse
or disruptive impact on the employee ". The Arbitrator agrees with-the union
that this mandate creates an obligation on the Service that is a continuing
duty for the entire period of the employee' s disability . The Service is
intending that the If int in time at which it has the right to "w:

its hands" of a particular injured employee and move him out of his and into

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442


of doing a job to allow a qualified person with a disability to perform the essential
functions of the particular job, or to be considered for a position he or she desires.

Management also contends that once it did its job search and found no work they are
no longer obligated to search for work. There is no dispute that on March 30, 2009 the
Service “washed their hands” of the grievant when it discontinued its search to provide
suitable work for her. The union maintains that the Service was obligated to continue that
search as long as the grievant was in their employment. The case file clearly establishes
that in the past the Service continued their search to find jobs for the grievant and others
when circumstances had changed. They have clearly violated the Step 4 Settlement 01706
by changing their obligation to continue to search for work for the grievant. That obligation
is on going and was first established by National Arbitrator Bernstein H1N-1J-C 23247
pgs 13-14: -

The Arbitrator holds that this interpretation of the provision is barred by the specific
mandate in the section that the Service "should minimize any adverse or disruptive
impact on the employee ". The Arbitrator agrees with the union that this mandate
creates an obligation on the Service that is a continuing duty for the entire
period of the employee's disability. The Service is contending that there should
be a point in time at which it has the right to “wash its hands" of a particular
injured employee and move him out of his craft and into another one for the
remainder of his career. Perhaps it would be sound policy to have such a
provision in the section, but there is no language to that effect in that section
at this time. Section 546 .14 must be read to impose a continuing duty on the
Service to always try and find limited duty work for injured employees in their
respective crafts, facilities and working hours, The fact that such duty might not
be available at any point in time does not mean that it will never become available,
because there are many changes that can take place. Therefore, the Service must
be prepared to modify a limited duty assignment outside of the employee ‘s craft,
facility or hours, when work within those conditions becomes available.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT# 06-130442
48


specific work tasks a postal employee would perform in the furtherance
of the mission of the Postal Service.

The definition given by Arbitrator Eisenmenger above parallels the Union contentions,
that the work Moore had been performing since her return from her injury was certainly
tangible, whether doing portions of routes, delivering splits, going to Job sites for the USPS
or performing work that would typically be performed by supervisors. Arbitrator

Eisenmenger, on page 31 goes on...

However, the process undertaken in the NRP assessment, which led to
relieving the Greivant of duties he had performed without incident, was based
on a faulty premise. The Postal Service simply refused to accept that the
work the Grievant had been doing for the previous decade was
acceptable for the purposes of assigning limited duty work under ELM
546.142. -

The standard of necessary work is faulty on many counts. ELM 546.142, the
primary governing regulation in the Grievant's case, does not require high
standard of “necessary’ work as the Postal Service defines it.

Page 32...From an evidentiary standpoint, the criteria of necessary work has
been created in contravention of the applicable contractual, statutory and
regulatory provisions that apply to situations such as the grievant's. A éareful
review of all such provisions fails to reveal that the Postal Service is
permitted to raise the bar of what constitutes limited duty to the
heightened standard of “necessary” work, at least to the extent the
Postal Service applied it in an improper and narrow manner.

On page 36, the arbitrator states.../n doing so, the Postal Service is
ORDERED, to cease and desist from utilizing the erroneous standard of
“necessary” work as the Postal Service has improperly restricted its
meaning.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
37


James C. Latham, et al v. U. S. Postal Service
MSPB Docket Number DA-353-10-0408-I-1

Amicus Brief

Submitted by:

Richard M. Gallo, President

Kenosha, Wisconsin Local

American Postal Workers Union, AFL-CIO
P. O. Box 1396

Kenosha, Wisconsin 53141-1396

Via the Federal Register dated July 25, 2011, MSPB invited interested parties to
submit Amicus Briefs in the above-captioned matter.

According, this brief is submitted to address the following legal issues: (1) May .
denial of restoration be “arbitrary and capricious” within the meaning 5 CFR 353. 3(:«
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 rev.
violated the agency’s own internal rules; and (2) what is the extent of the agenc:
restoration obligation under the ELM, i.e., under what circumstances does the /!."
require the agency to offer a given task to a given partially recovered employes: a.
limited duty work?

1) Ma lenial of restoration be “arbitrary and capricious” within the meaninic, ‘
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 thai {th
denial of restoration violated the agency’s own internal rules?



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

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

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

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

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

SUMMARY

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


Amicus Brief: James C. Latham, et al v. U. S, Postal Service
MSPB Docket # DA 353-10-408-I-1 2s
Submitted by; Richard M. Gallo Page 4

(0) ADA standards. The standards used to determine whether section 501 of the
Rehabilitation Act of 1973, as amended (29 U.S.C. 791), has been violated in a
complaint alleging nonaffirmative action employment discrimination under this part shall
be the standards applied under Titles I and V (sections 501 through 504 and 510) of :
the Americans with Disabilities Act of 1990, as amended (42 U.S.C.
12101, 12111, 12201), as such sections relate to employment. These standards are set
forth in the Commission’s ADA regulations at 29 CFR part 1630.

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 toa

given partially recovered employee as limited duty work?

Contractual history and argument on this very point was provided in a brief on

behalf of the NALC position for an arbitration case in case number USPS JO6N-4-C
09160991. That brief, written by NALC Advocate Jeffrey Fults is completely on point.
The following excerpt is taken from pages 10-24 of that brief:

[Note: you may see references to documents cited in the following material identified as “M-o0xx.” The
excerpt has been re-printed as It appeared in the original, and the cited documents are included as an

attachment to this brief for your reference.]

“VIL. CONTRACTUAL HISTORY FOR THE INJURED EMPLOYEE

Prior to 1979 the Service was only required to restore injured workers into "established"
jobs". Also the old ELM language specifically referred to returning injured workers to
productive employment. ELM Issue 1, 4-1-1978:

546.21 The early return of an injured or iif employee to productive employment is a

prime means of therapy and rehabilitation. Maximum efforts shall be given toward


“every effort” to reemploy injured on-duty employees. This legal mandate was
incorporated into the Collective Bargaining Agreement in Article 21, Section 4 which
further requires the employer to “promulgate appropriate regulations” which comply with
Federal law. The Postal Service promulgated ELM Section 546 in direct compliance
with Article 21, Section 4. ELM Section 546 was submitted to the APWU pursuant to
Article 19 and no objection was forthcoming. 1t is far too late in the day for the APWU
to now object to the injury compensation program that they did not take issue with at its
inception.

Additionally, implementation of the APWU’s position would lead to a continuous game
of musical chairs with rehabilitation assignments being created and abolished while the
injured employee is no closer to being restored 10 duty as required by law. This is an
absurd result and would lead to inefficiencies in mail processing operations,

CONCLUSION

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

Submitted by:

wk

Jphn W. Dockins, Esquire
‘Labor Relations Specialist
U.S. Postal Service

April 15, 2002


JCAM page 2-1 / ARTICLE 2

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

JCAM page 3-1 / ARTICLE 3
MANAGEMENT RIGHTS

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

JCAM page 5-1 / ARTICLE 5
PROHIBITION OF UNILATERAL ACTION

The Employer will not take any actions affecting wages, hours and other terms
and conditions of employment as defined in Section 8(d) of the National Labor
Relations Act which violate the terms of this Agreement or are otherwise
inconsistent with its obligations under law.

Prohibition on Unilateral Changes. Article 5 prohibits management taking any
unilateral action inconsistent with the terms of the existing agreement or with
its obligations under law. Section 8(d) of the National Labor Relations Act
prohibits an employer from making unilateral changes in wages, hours
or working conditions during the term of a collective bargaining
agreement.

In H1N-5G-C 14964, March 11, 1987 (C-06858) National Arbitrator

Bernstein wrote concerning Article 5:
The only purpose the Article can serve is to incorporate all the
Service's “obligations under law” Into the Agreement, so as to
give the Service’s legal obligations the additional status of
contractual obligations as well. This incorporation has significance
primarily in terms of enforcement mechanism—it enables the signatory
unions to utilize the contractual vehicle of arbitration to enforce all of the
Service's legal obligations. Moreover, the specific reference to the
National Labor Relations Act Is persuasive evidence that the parties
were especially interested in utilizing the grievance and arbitration

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442



The following Vonhof case was used as a citation within the text of the Union brief.
CASE # EO6N-4E-C 08200936 Jeanne M. Vonhof--Arbitrator
CASE # C-28624 Hearing in Kansas City, MO 1-28-2010

The following LaLonde case was used as a citation within the text of the
Union brief. .
CASE # JO6N-4J-C 08372998 Stephen LaLonde--Arbitrator

CASE # C-28641 Hearing in Buffalo, NY 1-19-2010

The following Monat case was used as a citation within the text of the Union
brief.

CASE # E06N-4E-C 10001623 = Jonathan S. Monat-Arbitrator .
CASE # C-28705 Hearing in Colorado Springs, CO 4-1-2010

The following Jacobs case was used as a citation within the text of the
Union brief.

CASE # JO6N-4J-C 09214081 Karen H. Jacobs--Arbitrator

CASE # C-28731 Hearing in Taylor, Ml 4-12-2010

The following Eisenmenger case was used as a citation within the text of the Union
brief.

CASE # EO6N-4E-C 09370199 Kathy L. Eisenmenger--Arbitrator

CASE # C-28732 Hearing in Cheyenne, WY 4-22-2010

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442


of the head.” (Emphasis added) and the fact the grievant had driven a postal
vehicie as a part of his duties over the 8 years he had a rehabilitation job offer.

The NRP representative cited no medical expertise on her part. She did
not testify to seeking medical expertise in evaluating what the limitation meant,
either from someone in the Postal Service or from the Doctor who submitted
the medical report. She decided Greivant can drive a personal vehicle, but
cannot drive an LLV. | find no rational basis in the file to conclude that
Greivant cannot do work that requires driving a postal vehicle.
CONCLUSION
The central issue to the Union in this case is the USPS unilaterally redefining a
provision in the ELM that has applied by the parties for over 30 years. The Service provides
no evidence to support their claim, actually, to the contrary, they support our position of
changing a nearly 30 year practice of implementing the ELM 546 provision. The Service's
claim of not having a full day's work for Moore must be questioned and dismissed given the
new definitions applied to previously existing work the grievant was performing. This even
more so, considering utilization of the previous application of ELM 546 her job at Linwood
Finance was adequate. We maintain the work was, and still remains at Linwood Finance,
both Moore and Burt testified unrefutted to that point in this case. There is still eight hours
of work available to gainfully employ Ms. Moore in her job offer at Linwood Finance unit at
the North End station. Nothing has changed regarding Ms. Moore's injuries or abilities and

willingness to work when the USPS withdrew work from her and placed her into the

mailhandlers craft.

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
59


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 16

Article 19 process. Simply stated It establishes that the past practices of assigning work
will remain in effect, largely because they are bound both legally and contractually.”

The above citations and arguments are clear. Both the unions and the U. S. Postal
Service have long recognized that the employer's obligation, both legally and
contractually, is to provide rehabilitation assignments for injured employees. Expressly
and purposefully, USPS has steadfastly maintained that such assignments need not be
operationally necessary, and can include make-work duties. The rules that were
promulgated in the ELM have not changed one single word, comma, or period since
agreed to in 1979. In initiating its NRP process however, USPS has effectually
unilaterally wiped out that entire 32-year history. Such an action constitutes a clear
violation of the National Labor Relations Act, as well as the collective bargaining
agreements with employee unions. This action itself, by its very nature can only be
viewed as arbitrary and capricious. In almost all of the NRP cases being challenged,
there is one common theme. The work the individual employee(s) was doing existed,
often for many years until a prescribed hour and minute on a given day; after which the
Postal Service alleged they could no longer find “any avallable work.” Such a
preposterous statement can only be arbitrary, capricious and unreasonable. This is
even more true when viewed in the perspective of the legal and contractual obligations
previously discussed which are recognized by all parties.

In almost every case appealed to the Board, USPS has dumped volumes of exhibits
into the file. They have attempted to shift the focus away from their legal, contractual,
regulatory, and moral obligation to provide work for injured employees. Instead, they -

try to suggest that their actions are somehow justified due to some financial hardship.


or to management personnel. Management admits the work did
not disappear. It is now assigned where it must be assigned.

Yavello of Step B goes on to identify exactly what work can be performed by Ms.

Moore on the top of page 12 of the joint packet, comparing his list to what Moore was asked
to provide the NRP team on page 63 of the packet. Yavello systematically identifies 12

different duties previously performed by Moore in the past nine years on that page and puts
them into three different groups, Management Work Crossing Crafts and Bid Assignment

Work. According to the Detroit district, in the three new categories they have
established, Ms. Moore can no longer work productively and produce a tangible
product, everything she performed for the past nine years has become “make work".
The Union finds this insulting to both the grievant and our National Agreement. The
Service at step B contends that cross-craft assignments are not permitted. This was cited
without contractual language to support their position due to the fact there simply isn’t any
contractual language which supports this fiction. Quite the contrary, we will offer national
level awards that require crossing crafts in an attempt to “make every effort”. Review of the
Step B impasse on page 7 reveal that immediately following 3 statements and responses,
that the Union will identify as hearsay argument presented to the B team, Mr. Yavello
describes this as an extensive data collection and analysis effort that met the

compliance of ELM 546.142.and subsequently found work for her at the GWY Plant.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442


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

Iv. ilitation Assignment Would Not Have Existed “! or” the

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

Because this is a national interpretive issue of general application we need not address
every possible fact scenario regarding the creation of reassignments for injured
employees. Indeed, the APWU has acknowled ged that for the purpose of this interpretive
issue that the reassignment was in fact a uniquely created rehabilitation assignment. ( See -
T2312.)

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

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


Arbitrator Abernathy WON-5TC-862 pg. 23-24

That is, as numerous arbitrators, as well as the Union in this case , have pointed out,
management has an on-going and continuous obligation to try to provide work
to limited duty employees within the sequence specified in this provision. See,
for example , the national level award of Arbitrator Bernstein in Case No . HIN-IJ-
C23246 ( 1987), as well as the decision of Arbitrator Barker, cited earlier in this
opinion .

Arbitrator Freitas E98N-4E-C 01097720 pg.21
For example, Mr. Wisner stated at the arbitration hearing that he was unaware
that the Postal Service has an on-going obligation to monitor the situation of
limited duty employees to ensure that that if there is work for them ata higher
level of the "pecking order" it must be offered to them . The general rule in this

regard was stated in a national decision by Arbitrator Bernstein and has been
uniformly followed by other arbitrators when faced with the issue.

If the Postal Service advocate does cite in her brief a regular panel arbitration easerdaied
10/22/09 by Arbitrator Vickie Peterson Cohen that addressed Postal Service NRP issues,
as she identified it during her opening, please consider the following arguments considering
the lack of persuasive value of that decision. .

As a regional decision, Arbitrator Cohen's award is not binding on any other regional
arbitrator. Rather, other arbitrators may accept or reject her opinion, depending on the
persuasiveness of her rationale and/or the similarity of the facts giving rise to the grievance.

The persuasive value of Arbitrator Cohen's decision is diminished in two ways: First,
there is absolutely no indication in her award that she considered or even was aware of the

6/18/09 national level settlement on NRP identified as M-01706, as we clearly established

in the instant case. There is no mention of this settlement in her decision. Moreover,

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
50


(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 employee is assigned.

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

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

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

b. Former Employees. When a former employee has partially
recovered from a compensable injury or disability, the Postal Service
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 is qualified, including a lower grade
position than that which the employee held when compensation began.
Note: Placement priority for rehabilitation assignment is the same.as for
limited duty.

JO6N-4J-C 09160891 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442


the essential functions of which, the employee can perform. All assignments will
comply with the Employee and Labor Relations Manual (ELM) Section 546 and the
Rehabilitation Act, if appropriate, based on individual circumstances.

Third, the NALC is concerned that "...it appears to be management's position that
there is no obligation to provide limited duty when the employee's treating physician
indicates that the employee is unlikely to fully recover from the injury."

The Postal Service makes no such assertion. If an employee reaches
maximum medical improvement and can no longer perform the essential
functions of the city letter carrier position, the Postal Service is obligated to

seek work jn compliance with ELM Section 546 and, if applicable, the

Rehabilitation Act.

June 2009
As you are aware the application of the National Reassessment Program (NRP)
became an interpretive issue which was eventually resolved by the National Parties upon
the signing of the Step 4 Agreement (M-01706) in the summer of 2009. Important excerpts
from that decision are as follows:
1. The NRP has not redefined or changed the Postal Service's obligation to provide
limited duty or rehabilitation assignments for injured employees. The ELM has not
been amended and remains applicable to alf pending grievances.
2.The Postal Service has not developed new criteria for assigning limited-duty.
Injured employees will continue to be assigned limited duty, in accordance with the
requirements of ELM 546 and 5 C.F.R. Part 353
3.Employees on existing non-workers compensation light duty assignments made
pursuant fo Article 13 of the National Agreement will not normally be displaced solely
to make new limited duty or rehabilitation assignments unless required by law or
regulation. The foregoing sentence does not establish any guarantee of daily work
hours for employees in a light duty assignment.
This settlement is without prejudice to the right of the Postal Service to propose

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
23


both the Formal A and Step B representatives from the USPS to clarify, the work was taken
away. The advocate in her opening speaks of redefining “make work" and identifying
“tangible work" while overcoming the challenge to find productive work for all employees.
It is also important to identify a few items within the Step B decision that wilt not
reconcile with the testimony of the Service. in the Step B decision, management takes a
stronger stance and refers to excessing and loss of mail volume as a reason used to
withdraw Vesta Moore's previous duty assignment. On page 5 of the DRT impasse, USPS

Step B Yavello writes...
Management did find suitable work in the GWY/PEDC but could not

assign it to the grievant due to excessing of clerks. .

Further on page 11 of the DRT impasse...
At Step A management makes it clear that certain tasks formerly
performed by limited duty/ rehabilitation carriers is “make work”. It is
also pointed out that EAS (managerial work), bid assignment work,
and crossing crafts could no longer be permitted. Management
does not refute that some of the work performed by the grievant was
necessary, productive work. However, the operational needs dictate

that the grievant can no longer perform work rightfully assigned to clerks

JO6N-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
28


changes to ELM 546 in the Article 19 process.

The cited resolution established that the Service's obligations regarding limited duty
positions have never changed. The Service has agreed that new criteria have not’been
established in assigning limited duty jobs. Of utmost importance is the fact that the Service
has acknowledged that the ELM has not changed or its legal requirements and in order for
the Service to change their criteria it must be accomplished through the Article 19 process.
Simply stated it establishes that the past practices of assigning work will remain in effect,

largely because they are bound both legally and contractually.

Vill. TESTIMONY AND NALC POSITION

Injured employees placed into rooms doing nothing, this was one of the USPS
advocates opening remarks. This is of course is very consistent with the entire Service
opening, it isn't true about the grievant, it isn’t a part of the case file and it is a completely
new argument to deflect the reality of the case before you. We will discuss the testimony
and how it relates to the contractual provisions, as well as addressing both the
management opening and the Step B management impasse.

The case itself is a very simple case, Vesta Moore has worked in a Modified Job
Offer since her injury was accepted until the work she was performing was withdrawn on
2/17/2009. The management contentions in the case file and the Step B impasse both

validate this point, the work was withdrawn, The Union has clearly shown the work still

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442


conformance with clear understands derived from the Settlement between
the parties. 7

Pg. 18 Certainly these were legitimate and productive job functions
that contributed to the overall operation and delivery of the mail. The
Union also demonstrated, without contradiction, that the work at
Amherst station that the Grievant was performing (in conformity with
his medical restrictions) before he was released, still existed after he
was let go. The Service did not refute this fact. The Service
contention that this work was deemed to (sic) longer be productive or
necessary is not persuasive.

We again ask that you not be distracted by the variety of adjectives thrown at you
by the Service when describing different work. The words necessary, productive and
tangible when used as a description to the noun work must still be kept in context of the
subject matter. For example, when looking at the statement made by John Dockins, on
page 7 on the USPS legal brief submitted, he states...Article 37 duty assignments and
Article 21 Rehabilitation Assignments are separate and distinct...Such Article 37
duty assignments are driven solely by management's operational needs. This is
not true for rehabilitation assignments. Rehabilitation assignments are created as
a result of legal, contractual and regulatory mandates. The descriptions offered by
necessary, productive and tangible would certainly take on different meanings when
distinguished between craft assignment and rehabilitation job assignments. The

generic, one size fits all, example of work, employed by the USPS advocate, can not be

considered at face value. We offer three such examples of the USPS attempts at

JOGBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
33


x. ATIONS OFF DA i}

The following Lange case was used as a citation within the text of the Union brief.
CASE # W4N-5C-C 43784 Carl Lange--Arbitrator .
CASE # C-09589 Hearing in Long Beach CA 12-20-1989

The following Barker case was used as a citation within the text of the Union
brief.

CASE # W7N-5N-C 22042 James Barker--Arbitrator

CASE # C-11589 Hearing in Bakersfield, CA 12-20-1991
The following Abernathy case was used as a citation within the text of the Union brief.
CASE # WON-5T-C 862 John Abernathy--Arbitrator

CASE # C-12861 Hearing in San Fernando CA 03-01-1993

The following Axon case was used as a citation within the text of the Union
brief.

CASE # ESON-4E-C 94004012 — Gary Axon-Arbitrator

CASE # C-14347 Hearing in Portland OR 03-24 1995

The following Gentile case was used as a citation within the text of the Union brief,
CASE # F90N-4F-C 95045308 = Joseph Gentile--Arbitrator -
CASE # C-17301 Hearing in Ventura, CA 09-12-1997

The following Reeves case was used as a citation within the text of the Union brief.
CASE # E94N-4E-C 99215892 _‘T. Zane Reeves--Arbitrator
CASE # C-21511 Hearing in Colorado Springs, CO 12-12-2000

The following Freitas case was used as a citation within the text of the Union brief.
CASE # E98N-4E-C 01097720 Joseph Freitas-Arbitrator
CASE # C-22990 Hearing in Layton, UT 01-17-2002

JOEN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
63



another one for the remainder of his career , Perhaps it would be sound policy
to have such a provision in the section, but there is no language to that
effect in that section at this time . Section 546 .14 must be read to impose a
continuing duty on the Service to always try and find limited duty work for
injured employees in their respective crafts, facilities and working hour .
The fact that such duty might not be available at any point in time does not
mean that it will never become available , because there are many changes
that can take place . Therefore, the Service must be prepared to modify a limited
duty assignment outside of the employee 's craft, facility or hours, when work
within those conditions becomes available .

January 1997
M-01264‘ G90N-4G-C 95026885 We agreed that the provisions of ELM 546.14 are

enforceable through the provisions of the grievance/arbitration process.

May 1998

M-01316° Established actions inconsistent with applicable laws are grievable.

June 14 1999 -
Again in 1999, the APWU challenges the 1979 provision of the ELM. The issue

resurfaced in this case determining whether the Postal Service violated Article 37 of the

APWU National Agreement by assigning rural letter carriers to temporary limited duty work

in the clerk craft when no work was available within their medical restrictions within their

‘SEE Joint Package B PG 163 / M-1264 , Step 4, enforceable through grievance procedure
SSEE Joint Package B PG 164 / M-1346 , Step 4, actions inconsistent wilaw grievable

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
18


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-1-1
Submitted by; Richard M. Gallo Page 3

categories by 5 CFR 353, based on whether or not the injured worker is expected to
fully recover at some point in the future. “Partially recovered” employees are not yet
fully recovered but are expected to at some point, while “physically disqualified”
employees are considered to have little likelihood of doing so. The restoration rights of
both types of injured workers are in 5 CFR 353,.301(c) & (d):

5 CFR 353.301(d)

Partially recovered. 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.
Ata minimum, this would mean treating these employees substantially the -
same as other handicapped individuals under the Rehabilitation Act of 1973.
(Emphasis added) The phrase “must make every effort” provides strong protection.
The law requires the Postal Service to do more than make some effort. It must do more
than make a lot of effort. It must make every effort. The second thing to note is that :
the law gives the Postal Service an example of the bare minimum way that injured
workers must be treated—the Rehabilitation Act of 1973. The regulations for the
Rehabilitation Act are also found within the Code of Federal Regulations. However, it is
located in Title 29, not Title 5:

Rehabilitation Act:

29 CFR 1614.203 Rehabilitation Act.

a) Model employer. The Federal Government shall be a model employer of -
individuals with disabilities. Agencies shall give full consideration to the hiring,

placement, and advancement of | qualified individuals with disabilities.


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

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

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

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

15


The term ‘light duty” should not be confused with the term “limited duty.” The
term limited duty is not used in the National Agreement. Rather, the term

limited duty was established by 5 Code of Federal Regulations, Part 353.

Going back to documentation from the service to establish withdrawal of work from
the grievant. Where were these records we heard about in the opening? Records of job
searches for Moore, none of these records were ever presented to the Union. No such
records are available for your review, quite simply, because they do not exist. The NRP
committee people who testified, Doss and Bunch, did not address the fact documentation
was not provided to the Union. Moore was moved and there was not any intention to return
her to her home station.

As Arbitrator Lange, W4N-5C-C 43784, stated in this award...

In order to successfully defend against an employee' challenge to a
limited duty assignment, the Service must make at least a prima facie
showing thatit has attempted to implement the progression set out in the
ELM and has been unable to make a successful accommodation at each
step prior to the level of the modification of craft duties, non-craft duties,
work hours, or work location that was finally implemented . The showing
may be made by way of documents, testimony, or other relevant and
admissible evidence . After the Service has made an acceptable showing that
it has attempted to satisfy each step in the progression of Sections 546. 14la-c,
it may then allege that no work is available at the regular work location and that
an assignment within the parameters of Section 546 .141d is the only
appropriate course of action . The burden to challenge the lack of available
work at the employee's regular assigned work location then shifts to the-Union
.However, a bare assertion that there was no available work, without
additional substantiation, is insufficient to demonstrate compliance with

JOGN-4J-C 09160991 Vesta Moore, Detrolt Michigan NALCBR1 DRT#06-130442
41


In the Service's opening, they make a claim that the work Ms. Moore performed at the
Linwood Finance section of the North End Station was no longer present. The grievant
testified unrefutted that the work she performed as a custodian and AMS data entry
technician provided her eight hours of daily work within her restrictions until the day was
she was forced to the mailhandler craft. She further testified that she could have stayed —
busy just with custodial work because the place was so dirty and had not had a custodian
when she arrived or previous to her arrival. The Union points to both of the USPS
representatives in the grievance procedure, at steps A & B, to show the work still exists but
was withdrawn. 7

The USPS advocate stated in her opening, “The Postal service can no longer
operate in the same mind set or mode that we formerly did business. It is mandatory for the
Postal Service to have Good Business sense while maintaining our obligations to our
employees; including but not limited to the employees holding bid assignments, the-ill and
injured.” This was following her reaffirmation of the USPS obligation to federal laws, rules,
regulations and CBA’s. Normally the Union would be charged with showing the work still
exists within the facility the employee was originally employed, before the injured worker
was moved, provided the USPS had offered through documentation, that the work nolonger
exists. The question here is, not whether or not the work still exists, but does the USPS
in Detroit district have the right to take it away based on the reasons they provided. While

the advocate eludes to the fact the work was taken away from Ms. Moore and USPS

witnesses Bunch and Doss evade the question, we will show you the USPS position from

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
27


operational needs there are fewer day shift job assignments, However, the APWU may
not escape the consequences of its prior actions.

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

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

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

Vi. The AP\WU’s Position Leads to Absurd Results and Will Greatly Impede the
lished Injury Coy tio}
The contract must be read as a whole. The interrelationship of Article 37 duty
assignments and Article 2] rehabilitation assignments must be viewed in the context of
the real world. Accordingly, an analysis of the impact of the APWU position in this case
is very insightful. If uniquely created rehabilitation assignments must be posted for bid
as Article 37 duty assignments for all clerk craft employees, it will lead to unproductive

10


POST HEARING BRIEF FOR
THE NATIONAL ASSOCIATION OF LETTER CARRIERS
BEFORE
ARBITRATOR DAVID DILTS

Detroit, Michigan

ARBITRATION HEARING 1 IN THE MATTER OF
1 USPS JOEN-4J-C 09160991
BETWEEN ] NALC DRT # 06-130442
:
UNITED STATES POSTAL SERVICE ]
]
]
and 1 GREIVANT
]
] VESTA MOORE
NATIONAL ASSOCIATION of 1
]
LETTER CARRIERS 1
]
:
1 APRIL 23, 2010
]
]

NALC Advocate

Jeffery S. Fultz

Regional Administrative Assistant
KIM Region .
National Association of Letter Carriers


M-01706

Mr. William H. Young

President

National Association of Letter
Carriers, AFL-CIO

100 Indiana Avenue, NW

Washington, DC 20001-2144

Re: Q01N-4Q-C-07190177
Class Action
Washington, DC 20260-4110 |

Dear Mr. Young:

Recently, our representatives met in prearbitration discussion of the above-referenced
grievance.

This grievance was filed regarding the Postal Service's application of the National
Reassessment Program (NRP). The grievance contained three issues. The first issue involves
the Union's contention that through the NRP the Postal Service has implemented a new
‘necessary work’ standard for the creation and continuation of limited duty and rehabilitation
assignments. The second issue involves the Union's contention that as part of the NRP the
Postal Service has developed new criteria for assigning limited duty. The third issue concerned
the potential impact of the NRP on employees assigned to light duty under Article 13 of the
Agreement.

In resolution of these issues the parties agree as follows:

1, The NRP has not redefined or changed the Postal Service's obligation to provide limited
duty or rehabilltation assignments for injured employees. The ELM 546 has not been -
amended and remains applicable to all pending grievances,

2. The Postal Service has not developed new criteria for assigning limited duty. Injured
employees will continue to be assigned limited duty, in accordance with the requirements
of ELM 546 and 5 C.F.R., Part 353.

3. Employees on existing non-workers’ compensation light duty assignments made pursuant
to Article 13 of the National Agreement will not normally be displaced solely to make new
limited duty or rehabilitation assignments unless required by law or regulation. The
foregoing sentence does not establish any guarantee of daily work hours for employees
in a light duty assignment.


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

impaired.

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

created long before the rehabilitation assignment was created.

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

weakness of the APWU logic.

Xx. ast Practice of the Parties Favors the )

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

14


JCAM page 19-1 / ARTICLE 19

Handbooks and Manuals. Article 19 provides that those postal
handbook and manual provisions directly relating to wages, hours, or
working conditions are enforceable as though they were part of the
National Agreement. Changes to handbook and manual provisions
directly relating to wages, hours, or working conditions may be made by
management at the national level and may not be inconsistent with the
National Agreement. A challenge that such changes are inconsistent with
the National Agreement or are not fair, reasonable, or equitable may be
made only by the NALC at the national level. -

JCAM page 21-3/ ARTICLE 21.4

Section 4, Injury Compensation

Employees covered by this Agreement shall be covered by Subchapter | of
Chapter 81 of Title 5, and any amendments thereto, relating to compensation for
work injuries. The Employer will promulgate appropriate regulations which
comply with applicable regulations of the Office of Workers’ Compensation
Programs and any amendments thereto.

Workers’ Compensation. Letter carriers who sustain occupational injury or
disease are entitled to workers’ compensation benefits under the Federal
Employees’ Compensation Act (FECA), administered by the U.S. Department
of Labor's Office of Workers’ Compensation Programs (OWCP). Sources of
information concerning federal workers’ compensation benefits are: _

+ ELM Chapter 540—USPS regulations governing workers’ compensation;
* USPS Handbook EL-505, Injury Compensation (December 1995);

+ Title 5 United States Code Section 8101 (5 U.S.C. 8101)—the Federal
Employees’ Compensation Act (FECA);

+ Title 20 Code of Federal Regulations Section Chapter 1 (20 C.F.R. 1)
—regulations of the Office of Workers' Compensation Programs;

* Title 5 Code of Federal Regulations Part 353 (5 C.F.R. 353)—
regulations concerning the restoration to duty of employees who sustain
compensable injuries.

JOGBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442


missing events that would normally be deemed worthy of fact development during the
hearing.

Isn't it odd the USPS would fail to offer as a witness, the author of their Management
Contentions, Ms. Gruschow. One such example was already addressed above in the 2-3
hour gap in her contentions. Of more importance was the USPS position on assigning work
within the NRP process as they have defined it. Once again, referring to Management
Contention's on page 76 of the joint packet, the first three paragraphs contain the new
“Detroit definition” of changing the principles of the ELM 546.142 that have been practiced
by the parties for over thirty years. When you look at the bargaining history it becomes very
apparent various districts of the USPS have strayed away from legal and contractual
requirements and thirty year labor practices.

Ms. Gruschow on behalf of the Service wrote that first of all, all injured letter carriers
would be segregated into three distinct groups, Limited Duty carriers who have not been
determined to be permanently injured, those permanently injured letter carriers who have
reached MMI within a year would be the second group and finally the third group would be
permanently injured letter carriers whose MMI is beyond one year. This designation of three
groups of injured employees is a serious departure from the way the USPS has handled
injured employees in the past. This poses the NALC such possibilities of aarigus
repercussions and the harm to our established process could not be fully articulated in this
document. As you are aware, based on the number of cases you have decisioned for the

NALC and USPS in regional level arbitration for injured employees, there are 8 steps to

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
33


Arbitrator Cohen's mistaken belief that an NRP issue was still under dispute at the national
level lends support to the idea that she did not consider, or even know about, the national
level settlement in M-01706. Arbitrator Cohen wrote:

The Postal Service has the management right to decide that available work cannot

be work tentatively associated to another bid assignment, or dependent on uncertain

factors. Since this argument or issue is apparently pending at the National level for

a final resolution, it will not be addressed in further detail in this grievance.

Infact, Article 15 Section 2 Interpretive Step of the National Agreement provides that
when there is a national level appeal, any local grievances filed on the specific interpretive
issue shall be held in abeyance pending resolution of the national appeal. Arbitrator Cohen
had to be mistaken about the issue being “apparently pending at the National level for a
final resolution” because if that were so, the case before her would have been on hold, not
before her.

Second, in M-01706, the Pastal Service agreed that NRP has not redefined or
changed its obligation to provide Limited Duty and that USPS has not developed new
criteria for assigning limited duty. Arbitrator Cohen's rationale directly conflicts with M=1706.
M-1706 includes the following: “The Postal Service has not developed new criteria for
assigning limited duty." Yet Arbitrator Cohen, in discounting the relevancy of the fact that

the grievant had previously productively worked the original Rehabilitation Job Offer,
including overtime, wrote: “However, under the i red Ni iteria, which

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442


STIPULATIONS

The parties agreed that Vesta Moore was officially moved into the Mailhandler
craft effective 3-28-09 for purposes of the dispute.

The parties also agreed that Vesta Moore was officially excessed as a
mailhandler from the Detroit district to Pittsburgh, Pennsylvania on 2-28-10.

Regarding redacted medical evidence within the DRT package the Union made the
USPS and Arbitrator aware that any medical within the file would result in a Union
objection due to the inability to authenticate, verify of defend it's existence with
unknown factors.

Ss VID
Joint 1 2006-2011 National Agreement ****** Inclusive of the
2009 Joint Contract Administration Manual
Joint 2 Joint Package as developed by the Dispute Resolution Team
Missing page added to DRT Package as 21A

Joint 3 M-1706: USPS agreement with the NALC resolving the NRP
national level dispute.

Management 1 USPS agreement with the Mailhandlers Union regarding NRP.

Management 1 was entered under the Union's objection to allowing new argument into the
packet which had previously never been considered or discussed.

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442


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

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

I Management has the Exclusive Right to Create Duty Assignments

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

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

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

B. To hire, promote, transfer, assign, and retain employees in positions
within the Postal Service and to suspend, demote, discharge, or take
other disciplinary action against such employees;

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

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


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 13

The Postal Service makes no such assertion. The Postal Service may provide casing
duty and other city letter carrier duties to city letter carriers suffering a job-related
illness or injury when it is available within the employee's medical limitations on record,
When this occurs, it does not preclude, based on medical documentation, the Postal
Service from offering the employee a duty assignment the essential functions of which :
the employee can perform. All assignments will comply with the Employee and Labor
Relations Manual (ELM) Section 546 and the Rehabilitation Act, if. appropriate, based on
individual circumstances.

Second, the NALC is concerned that "...it appears to be management's position that it
has no duty to provide limited duty if available work within the employee's limitations is
less than 8 hours per day or 40 hours per week."

The Postal Service makes no such assertion. The Postal Service May provide work of ~
less than eight hours a day or forty hours a week to city letter carriers suffering a job-
related illness or injury when it is available within the employee's medical limitations on
record. When this occurs, it does not preclude, based on medical documentation, the
Postal Service from offering the employee a duty assignment the essential functions of
which, the employee can perform. All assignments will comply with the Employee and
Labor Relations Manual (ELM) Section 546 and the Rehabilitation Act, if appropriate,
based on individual circumstances, .
Third, the NALC is concerned that "...it appears to be management's position that there
‘s no obligation to provide limited duty when the employee's treating physician indicates

that the employee is unlikely to fully recover from the injury"


requires that the Grievant's daily assignment consist of necessary work, such past
work assignments become Irrelevant."

Thus, USPS agreed in M-1706 there were no new criteria, but arbitrator Cohen relied
on newly implemented NRP criteria. Thus, Arbitrator Cohen's decision should not be
considered persuasive because it did not take into account the mutual agreement of the
parties at the national level and because it is inconsistent with that same national level

agreement ~ M-1706.

Arbitrator LaLonde BO1N-4B-C 06189348

More persuasive you will find is Regional Arbitrator LaLonde in his recent
decision regarding the M-1706 settlement. Arbitrator LaLonde was faced with a similar
case from Buffalo, New York earlier this year regarding a letter carrier who had his
modified job changed through NRP. He had this to say:

Pg. 16 What the Settlement language reveals is that nothing changed in the
obligation of the Service to provide limited duty and rehabilitation jobs.to
injured employees. Further, there have been no new criteria developed
by the Service for assigning limited duty jobs. Also, the settlement
reaffirms that ELM 546 and CFR Part 353 are controlling when it comes
to limited duty assignments and the requirements and extent of the
obligation placed on the Service. The terms of the Settlement clearly
support the Union position that the Service was employing new and
different criteria (or its interpretation) in the Grievant's situation;
criteria different from what had been done in the past. The ‘necessary
work” and “operational needs” standards used by the Service as justification
where it has not been shown to have applied in the past is not in

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
52


ARBITRATOR JACOBS JO6N-4J-C 09214081

There has been much debate about medical documentation in this case file, what is
sufficient, what is current, and more importantly who can make a qualified determination
based on medical evidence. This is not the first occasion this argument has arisen within
the Detroit district. In a case similar to Ms. Moore's, Arbitrator Jacobs was presented with
the same problem, an NRP committee member determining the medical value of a
document when not qualified to do so. The difference in this case as opposed to the instant
case is the greivantin the cited case obtained clarifying medical documentation when asked
to do so, unlike the case of Moore where they let the dispute stand. Arbitrator Jacobs had
this to say on page 7 of her award...

The nai ve if 1, 2 re

the doctor as clarification, are in the fi le. The Pastal Service suggests the
clarification should not be considered because there is a problem with the

timeliness of these medical reports.

This argument fails because, according to the Postal service's closing brief,(
pg. 15, last paragraph) the NRP team “ensured that every injured /limited
duty employee had a current medical on file” and had identified the work
that the employee had been doing. Any earlier CA-17 or other
contemporaneous medical report is not in this fite. But if there was a
discrepancy between the NRP’s team interpretation of the medicals and
the work that the Greivant had been in fact doing_they should have
resolved the discre,

The NFP team decided that Greivant could not do work that Greivant could not
do work that required driving, according to the testimony of Ms. Johnson. The
NRP representative testified she decided he could not drive because of the
limitation on turning his head. This was in spite of the doctor's statement
that he can drive; and the limitation is “No extremely repetitive turning

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
58


Amicus Brief: James C. Latham, et al v. U.S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 9

Provides that employees who are injured on-the-job through no fault of their
own should not be penalized solely because of their injuries. To that end, the
Postal Service is required to make "every effort" to find such employees
meaningful work. The FECA requirements have been expressly recognized by the
parties in the National Agreement in Article 21, Section 4, Injury Compensation. This :
language has been in the National Agreement since 1973, and Pursuant to this
contractual commitment, the Postal Service published Section 546 of the ELM.
Pursuant to the legal obligation of the Postal Service to comply with FECA
and the contractual obligation to issue appropriate regulations to comply
with FECA, the Postal Service, pursuant to Article 19 of the National
Agreement. published Section 546, The parties recognized that Section 546

contained the Postal Service's legal responsibilities to employees with job related
injuries. The language of Section 546 was approved by the APWU pursuant to their
rights under Article 19 under the National Agreement.

. Arbitrator Aaron, in relevant part, stated: "It is obviously too late in the day for the
Union [APWU] to challenge the proposition that FECA regulations can augment or
Supplement reemployed persons contractual rights. The language of Article 21, Section
4 of the 19811984 Agreement, previously quoted, makes clear that the tights of such
persons can be augmented or supplemented by federal regulations, with which the .
Postal Service must comply..."

This rationale from the Aaron award is most persuasive.

In 2001, the Service themselves recognized the requirement of "make every effort" in

a National Arbitration case (E90C-4E-C95076238). In that case the Service gave-


that is, it must be work based upon the production needs of the facilities.
While Management may prioritize the work, the ELM does not allow
Management to exclude low priority work that meets production
needs from consideration for limited duty and rehab assignments.
The work must be “adequate” or “tangible”, not high priority.
Neither Arbittrators Levak, Snow (National) or Lange, who wrote
definitive decisions on ELM 546 used the terms “essential work”
or "necessary work".

Management has further modified the criteria for establishing
modified assignments by claiming that the work cannot come from
bid assignments. According to Mr. White, any work not found in a bid
position is make work. There is simply no language in the ELM 546
that places such a restriction on limited duty and rehab
assignments. To the contrary, such assignments are often cobbled
together from elements of many positions and available work, depending
on facilities and their production needs. To exclude elements of existing
bid positions is not the stated intent of ELM 546. Tasks primarily
integrated and delegated from management positions is not make
work irrespective of the funding source. If it is work incidental to the
production needs of the facilities, it is tangible work that management
has the authority to delegate such tasks under article 3. It is not make
work.

ARBITRATOR EISENMENGER EO6N-4E-C 09370199

Arbitrator Eisenmenger, on page 30, had this to say about a city letter —— from
Cheyenne Wyoming who had work withdrawn similar to the grievant in a case from a couple
of weeks ago. Our final cite on the USPS attempt to redefine the word “WORK”.

The reference to tangible product in the EL-505 seems misplaced. The Postal
service is not a manufacturing entity: it produces no real product as that term
is commonly used in the industrial relations lexicon. The Postal Service, as its
name suggests, provides postal services to its customers; i.e., the delivery and
collection of mail, the sale of postal products such as stamps and postage, the
rental of mail boxes, etc. In absence of real tangible products made by the
Postal Service, | find the interpretation of “tangible product" to consist of

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442 ot
56


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

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

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

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

XI. Prior Regional/Area Arbitration Supports the Postal Service

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

A teview of prior Regional/Area awards reveals that several grievances regarding the

creation of rehabilitation assignments have been decided by field arbitrators. Most of
these cases deal with local facts surrounding the “uniqueness” of the rehabilitation

16


Appendix D

UNITED STATES POSTAL SERVICE
POST HEARING BRIEF

Case No. E90C-4E-C 95076238

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

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


a city letter carrier on a “bid assignment”. It is easier to define what the USPS believes an
injured carrier can do that would now qualify as productive work, the answer is nothing!
There wasn't any contractual reasoning provided as to why Ms. Moore could not remain at
the Linwood Finance unit doing a combination of letter carrier work and custodial work.
When Mr. Bunch was asked this very question, he sloughed it off saying her was not the
decision maker in this case and was not aware of the circumstances. Then what was his
reason to testify in this case? Ms. Doss simply evaded this questioning by responding that
she (Moore) could not be around uniforms. Ms. Doss testified to the one document-in the
file with her name on it but when cross examined by the Union could not answer questions
with certainty. Particularly with the issue of excessing, as noted on page 65 lines 8&9,
which states in part...Detroit excessing, so no excessing in Detroit. (Mr. Bunch is also only
verified once in this case file on the same document, page 66 of the joint packet.) When
asked about this statement attached to her name she had zero recollection of the event.
When Ms, Doss was asked by the Union ...If Ms Moore could not be placed into the clerk
craft because of excessing then why could she be put into the mailhandler craft who was
also under excessing. Her response was one of confusion, the USPS advocate objected
to new argument regarding mailhandlers and her objection was sustained. However, if Ms.
Doss cannot answer the question regarding differences in consideration of crafts, then the
response on page 65 must not be hers. Ms. Groschow as the NRP team leader during the
time of the grievance, clearly states in her contentions, and verified by steward Burt, that

Moore could not be placed into the clerk craft due to being under excessing in the Detroit

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
35


The Union now contends the grievant is disabled and must receive a
reasonable accommodation. The Union has not supported its
contention that the grievant qualifies for reasonable accommodations
under The Rehabilitation Act of 1973. Nothing contained in the joint
file leads to the conclusion the grievant has a disability, a record of
disability, is associated with a person with a disability or is regarded
as having a disability. The joint file contains no evidence that the
greivant has a physical or mental impairment that substantially limits
' a major life activity.
| don't believe the Union could find a better example of an employee than Ms.
Moore that the Restoration language in Title V Section 353.301 (d) is stoning to when
stating... :
Partially recovered. Agencies must make every effort to
restore in the Jocal 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 means treating these

employees the same as other handicapped individuals

under the Rehabilitation Act of 1973.

JOGBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
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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.

e. I£ 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.

da. An employee may be assigned limited duty outside of
the work factlity 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.

-142 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
@ 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.


e ows t st practice of t arties suppo.
position .

Pg. 17 Additionally, the implementation of the APWU’s positon would lead to

continu: ame ical chairs with rehabilitation assignments bei

created and abolished while the injured employee is no closer to being

stored to duty as required by la

August 19, 2005 (M1550) :

In a correspondence dated August 19, 2005 the Service acknowledged their

tesponsibilities regarding a series of grievances which arose out of Valley Stream, New

York:

First, the NALC is concerned that "... management appears to assert that it has no
duty to provide Limited-duty to an injured letter carrier if the carrier cannot deliver
mail, even though the employee is capable of performing casing and other letter
carrier duties in the office."

The Postal Service makes no such assertion. The Postal Service may provide
casing duty and other city letter carrier duties to city letter carriers suffering a job-
related illness or injury when it is available within the employee's medical limitations
onrecord. When this occurs, it does not preclude, based on medical documentation,
the Postal Service from offering the employee a duty assignment the essential
functions of which the employee can perform. All assignments will comply with the
Employee and Labor Relations Manual (ELM) Section 546 and the Rehabilitation
Act, if appropriate, based on individual circumstances.

Second, the NALC is concerned that "...it appears to be management's position that
it has no duty to provide limited duty if available work within the employee's
limitations is less than 8 hours per day or 40 hours per week."

The Postal Service makes no such assertion. The Postal Service may provide work
of less than eight hours a day or forty hours a week to city letter carriers suffering a
job-related illness or injury when it is available within the employee's medical
limitations on record. When this occurs, it does not preclude, based on medical
documentation, the Postal Service from offering the employee a duty assignment,

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442

22


Process, we are grieving the actions of the Service relative to Vesta Moore as a violation of the
contractual pecking order established with 546.142 of the ELM.

First, we must address the USPS theory of the case as they addressed it through the
opening statement. Hard times for the USPS, plain bad luck and can you please look the
other way while we violate our agreement with the NALC. I know those are harsh words but
they are in fact, very true. Once again the Service wants to create a new case within their
opening and refuse to discuss those facts after the seeds are sown, hoping to reap a benefit
from an arbitrator that they are not entitled to receive. They want to speak of USPS
excessing, declining mail volumes, without supporting facts or documentation. Then they
created an aanieu of how they made work for injured employees in the past, and financial
hard times forced a change in strategy, again without supporting facts or documentation.
They admit in their opening that they changed the procedure used for injured letter carriers.
What is before you is the question, Is the change contractually proper. The Postal Service
failed to provide either testimony or documentation in support of it's chief opening argument,
one of financial hardship. In fact they have attempted to change the entire case placed
before you regarding both fact and argument during the hearing. There is not a.single
instance within the case file where local management argued in their contentions financial
hardship as a reason of changing the practice of assigning work to injured employees.
There is absolutely zero documentation within the case file to support this position. The

Postal Service financial status and the grievance of Ms. Moore's are two separate iSsues.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
26


Arbitrator Monet EO6N-4E-C 10001623

This is from a very recent decision from another district, within the last month, that
failed to follow the NRP protocol from the national parties, we cite as a second recent

example.

Arbitrator Monat had this to say,

The pecking order requires that Management make every effort to
find work within the employee’s limitations. Management's limited
external searches do not meet this test. Rather than follow the
pecking order to its logical extension, Management substituted
criteria and findings from the NRP. This is a clear violation of the
National Settlement (J2:102-103).

Second, Mr. White redefined and reinterpreted ELM 546 in violation
of the National Settlement between the parties wherein the parties
agreed that the Postal Service had not developed new criteria for
assigning limited duty (J2:102-103). Mr. White used the terms
“essential work”, “tangible work" and “necessary work” neither of
which can be found in the ELM although “tangible work” is found
in HBK EL 505. These terms are touchstone for management in all
NRP cases before this arbitrator. The ELM sections 546.141 and
546.142, do notuse these terms to define Management's obligation
toward limited duty and Rehab employees. Management is obligated
to find work within the employee’s medical limitations. Essentially, as
Arbitrator Levak stated, “adequate work” and “tangible work” mean
“productive work,” not “make work”. Non-productive work is make-work.

It is well established by a line of arbitration decisions referenced by the
parties that Management is not obligated to provide “make work"
assignments. Some arbitrators have used the term “productive work’;

JOGN-45-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
55


Amicus Brief: James C. Latham, et al v. U, S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 17

In fact, there is no hard evidence to support that claim, and such a claim really has no
bearing whatsoever on the central issue in this matter. That issue remains whether or
not the agency is required to provide work to injured employees and nothing further.

In almost every case appealed to the Board, a common set of facts seems to
emerge. Duties that had been assigned to an injured employee, often-times for a
period of many years were removed under the NRP program. The agency does not
dispute that certain tasks formerly performed by limited duty/ rehabilitation employees
is "make work". However, under the agency‘s NRP “rules” they instruct that EAS =
(managerial work), bld assignment work, and crossing crafts can no longer be
permitted. USPS does not refute that some of the work performed by the appellants
was necessary, productive work. However, they claim that the operational needs dictate
that the appellants can no longer perform work rightfully assigned to other crafts or to :
management personnel. The agency admits the work did not disappear. They say it is
now assigned where it must be assigned. In almost every case, the work itself
continues to exist; it has simply been taken away from the appellant. The on/y reason .
for such a conclusion is because of the rules the agency itself inserted in its NRP
program. This can only be viewed as further evidence of the arbitrary and capricious
nature of the action.

The ultimate result of the USPS NRP program has been to reduce the number of -
employees on the agency’s rolls. But the reduction is made at the expense of only
injured employees. Clearly this act must be found to be discrimination due to physical
handicap. If the agency goal was to reduce the number of employees, it has other

non-discriminatory means at its disposal to accomplish that result. The collective


The Union was never offered an extensive data collection and analysis
effort within this case file. Testimony by the US Postal Service NRP team members
confirmed this fact during hearing. Not only had the information not been shared with the
Union it amounted to mere 3 phone calls to one supervisor at Taylor, a CSOM In Detroit,
and a POOM in Detroit. The “Necessary Worksheets" referred to by Yavello were not part
of the file.

However, Yavello appears to have read management contentions the same way the
Union did from the file. He emphasizes this at the end of his statement verifying that the
work did not disappear it was reassigned.

On page 17 Supervisor Yavello makes reference that the CA-810 is not supported
by Article 19. He is correct, it is supported by Article 21.4 which promulgates appropriate
regulations which comply with applicable regulations of the Office of Workers’
Compensation Programs and any amendments thereto. The Department of Labor which
oversees the Office of Workers’ Compensation Programs Implements the FECA. OWCP
updates and issues the CA-810 for compliance of the FECA. z

It is also important to refer to Moore's rights under The Rehabilitation Act. Yavello
at Step B makes a personal statement based on ignorance of the contract and disturbing
stereotypes of handicapped individuals rather than facts based on the CBA or on Federal

Law.

Further on page 13 Yavello states...

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
30


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 6

program, it is very clear the Service takes the same position as the NALC in that the
collective bargaining agreement must be held in compliance.

For nearly 30 years the parties have interpreted the "make every effort" language to
mean that the Service will offer limited duty to injured workers with Importance not
only given to the work's operational necessity but also the inclusion of answering
Phones, handling edit books, delivering Express mail, sorting and delivering mail with
accommodations in one's assignment or in other's assignments. This obligation includes
Cross-craft assignments as well. As we stated in our opening John Dockins argued for
the Service [E90C-4E-C 95076238] that the APWU had lost their opportunity to grieve -
the provision in the ELM when it was submitted in 1979. Not only did the APWU
challenge this provision again in 2001, they had previously challenged the provision in
1983.

Aaron CASE # HIC-5D-C 2128

In 1983, National Arbitrator Aaron faced the issue of whether the transfer of an
injured rural carrier to a full time regular position in the clerk craft violated Article 1.2 or
Article 13. Aaron held:

It is obviously too late in the day for the Union IAPWW to challenge the
Proposition that FECA regulations can augment or supplement reemployed
Persons contractual rights. The language of Article 21, Section 4 of the 1981- 1984
Agreement, previously quoted, makes clear that the rights of such persons can be

augmented or supplemented by federal regulations, with which the Postal Service must

comply.


work to the limited duty employee . As already noted, the NALC has demonstrated
that the Grievant was subject to this provision . It is clear that such a determination
is a condition precedent to the application of this provision to a given employee .

(n satisfying thls burden of proof, Arbitrator Abernathy stated the following in
relevant part:

“ arbitrators have held that it is not sufficient for the Employer merely to
assert that it considered each of these elements in the sequence
described above . Rather , the Employer must substantiate any such
assertions with documented testimony and other evidence” . [Id .]

This Arbitrator is persuaded by Arbitrator Abernathy's analysis and will follow it in the
instant case .

Management has improperly interpreted other aspects of this case. One of which
deals with their obligation under the Rehabilitation Act. The Service maintains that they have
no obligation under the Rehabilitation Act because the grievant does not have alife altering
disability. The union contends that the clear and unambiguous language in 5CFR 353.301
(d) which states in part...At a minimum, this would mean treating these employees
substantially the same as other handicapped individuals under the Rehabilitation Act
of 1973, gives the Postal Service an example of the bare minimum requirements in their
treatment of injured workers. Citing 29CFR 1614.203 Rehabilitation Act we see that the
Federal government shall be a model employer of individuals with disabilities.

Based on the above reference the union maintains that the grievant is therefore
covered under the provisions in the EL 307 Section 131 The Rehabilitation Act. The

Rehabilitation Act requires the Postal Service to consider ways to.change the manner

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
47


L J P TED
The Union at hearing accepted the Issue as framed by the Dispute Resolution Team. The

USPS offered a different version requesting the arbitrator to reframe the issue to include Article 13.

“Did management violate Articles 2, 3, 5, 13, 19 and 21 ofthe National Agreement, and

Federal law by presenting the grievant with an NRP job offer? If so, what is the

appropriate remedy?
11 PRELIMINARY STATEMENT

This Arbitration was conducted on April 23, 2010, at the Detroit, Michigan, Post Office, before
Arbitrator David Dilts. The Service was represented by Wanda VanHorn, Labor Relations
Representative, USPS, Detroit District, and the Union was represented by Jeffery S. Fultz,
Regional Administrative Assistant, NALC, who was assisted by Carl Blassingame, Vice-
President, Branch 1, NALC. Prior to the conclusion of the hearing both parties agreed to
submit post-hearing briefs. The briefs and citations were to be submitted to the arbitrator by
May 7, 2010. This document shall serve as the Union's clarification of the facts and

contentions in the Instant case as well as the final arguments and summation.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442


since her return to duty in the last part of 2000. Thus the Service changed the criteria by
eliminating all the duties it previously offered the grievant.

Applying Settlement M-1706 the Service is obligated to follow the same criteria and
obligations that they did in the past as applied to the ELM 546. There cannot be any dispute
that when the Service at the local level unilaterally redefined and eliminated possible duties
they were in violation of the Step 4 Settlement. As stated in the M-1706, the ELM 546
language has not changed. Therefore, all aspects must be observed until such a change
has been established under Article 19.

There can be no doubt that the provisions of ELM 546.142 are applicable to the
grievant. The union maintains that the burden then shifts to the Service to establish that they
had followed those provisions of making every effort. The union maintains that the quantum
of proof in meeting their burden entails more than bare assertions. It requires detailed,
precise and documented evidence to necessitate the change they attempted to make. The

testimony of their witnesses failed to prove they made any effort, let alone “every effort’.

Arbitrator Abernathy WON-5TC-862

Moreover, arbitrators have held, contrary to the position of the Postal Service in the
present case, that once the Union shows that the employee is subject to this section,
the Postal Service has the burden of proof that it followed the pecking order in
assigning work to the limited duty employee . See, for example, Case No. W4N-5C~
C43784 (Arbitrator Lange, 1989), supra. | am persuaded by the weight of arbitral
authority and shall follow it . In addition, arbitrators have held that it is not sufficient
for the Employer merely to assert that it considered each of these elements in the
sequence described above . Rather, the Employer must substantiate any such
assertions with documented testimony and other evidence .

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
45


current medical to properly place the injured employee into the correct position. This was
not the case when Ms. Doss shrugged off the inquiry and stated she understood what it
said. The NALC maintains, when Ms. Moore objected to the medical documentation cited
on 11-12-08 and put the USPS on notice she would clarify they not only failed to meet their
own obligation of the NRP in using current medical but violated the EL-307 Reasonable
Accommodation. The explanation under Section Ill of the PS Form 2499° requires an
interactive discussion on all medical document issues and accommodations.
Step 4 M-1500 injured employee displaces a PTF on a hold down

To counter the position on what work the USPS is now defining as belonging to a bid
assignment we offer the above cited Step 4. For the Agency to take the position now that
any letter carrier work that can be performed by a letter carrier on a bid assignment can no
longer be given to a injured worker is contrary to what the parties have practiced in the past.
Not only has it been the practice in the past to provide any work available to an injured
employee to provide eight hours of employment but the M-1500 Step 4 shows the parties
believe that to be the proper procedure even if it means removing a PTF from an opt.

As we cited earlier in this brief, John Dockins defends the actions of the USPS

to Arbitrator Das; .
Article 37 duty assignments and Article 21 Rehabilitation Assignments

are separate and distinct...Such Article 37 duty assignments are driven
solely by management's operational needs. This is not true for

: SEE PAGE 18 OF THE JOINT PACKET A

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
38


M-01550

vont RECEIVED

UNITED STATES Fiviate:
POSTAL SERVICE (Ave 23-2005
# EXEC. VICEFRESIDENT'S OFFIGF
RECEIVED  aiRunmeanen..
August 19, 2005 AUG 2 4 2005
OFFIGE of the PRESIDENT
TALEO. ROGATRS., WASHINGTON, D.C,

Mr. Willlam H. Young Certified Mail Number:

President 709 3400 0008 5111 7741

National Association of Letter

Carriers, AFL-ClO

100 Indiana Avenue, N.W.
Washington, DC 20001-2144

Dear Bill:

This is In response to your September 28 correspondence regarding Valley Stream, New York

“Limited-Duty Grievances” and whether they raise three interpretive issues pursuant to Article

15.2 Step B(e) of the National Agreement. The Postal Service does nat believe the grievances.

oie any interpretive issues. The following is our response to the three concems raised by the
(ALC,

First, the NALC Is concerned that *,..management appears to assert that it has no duty to provide
limitededuty to an injured letter carrier If the carrier cannot deliver mail, even though the employee
\s capable of performing casing and other letter carrier duties in the office.”

‘The Postal Service makes no such assertion. The Postal Service may provide casing duty and
other city letter carrier duties to city letter carriers suffering a job-related lliness or injury when itis
available within the employee's medical limitations on record. When this occurs, it does not
preclude, based on medical documentation, the Postal Service from offering the employee a duty
assignment the essential functions of which the employee can perform. All assignments will
comply with the Employee and Labor Relations Manual (ELM) Section 546 and the Rehabilitation
Act, if appropriate, based on individual circumstances.

Second, the NALC is concerned that *...it appears to be management's position that it has no
duty to provide limited duty If available work within the employee's limitations is less than 8 hours
per day or 40 hours per week.“

The Postal Service makes no such assertion. The Postal Service may provide work of less than
eight hours a day or forty hours a week to city letter carriers suffering a job-related illness or injury
when itis available within the employee's medical limitations on record. When this occurs, it does
not preclude, based on medical documentation, the Postal Service from offering the employee a
duty assignment, the essential functions of which, the employee can perform. All assignments
will comply with the Employee and Labor Relations Manual (ELM) Section 546 and the.
Rehabilitation Act, if appropriate, based on individual circumstances.

Third, the NALC is concerned that *...it appears to be management's position that there is no
Obligation to provide limited duty when the employee's treating physician indicates that the
employee is unlikely to fully recover from the injury.”

ATS UExeant Puza SW
Wasreston OC 20260-4100
WWAWLUSPS,CON,


EL-307 Guidelines on Reasonable Accommodation

Section 131 — The Rehabilitation Act

The Rehabilitation Act prohibits discrimination against qualified employees and job
applicants with disabilities in the federal government, including the United States
Postal Service.

The Rehabilitation Act also imposes an obligation on the Postal Service to find
teasonable ways to accommodate a qualified individual with a disability. In other
words, the Rehabilitation Act requires the Postal Service to consider ways to
change the manner of doing a job to allow a qualified person with a disability
to perform the essential functions of the particular job, or to be considered for
a position he or she desires.

THE REHABILITATION ACT / 29 CFR 1614.203

§ 1614.203 Rehabilitation Act. (a) Model employer. The Federal Government
shall be a model employer of individuals with disabilities. Agencies shall give
full consideration to the hiring, placement, and advancement of qualified
individuals with disabilities. (b) ADA standards. The standards used to determine
whether section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791),
has been violated in a complaint alleging nonaffirmative action employment
discrimination under this part shall be the standards applied under Titles | and V
(sections 501 through 504 and 510) of the Americans with Disabilities Act of 1990,
as amended (42 U.S.C. 12101, 12111, 12201), as such sections relate to
employment. These standards are set forth in the Commission's ADA regulations
at 29 CFR part 1630.

THE REHABILITATION ACT / 29 CFR 1630.9 .

§ 1630.9 Not making reasonable accommodation. (a) It is unlawful for a covered
entity not to make reasonable accommodation to the known physical or mental
limitations of an otherwise qualified applicant or employee with a disability, unless
such covered entity can demonstrate that the accommodation would impose an
undue hardship on the operation of its business. (b) It is unlawful for a covered
entity to deny employment opportunities to an otherwise qualified job applicant or

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
12


The facts are quite simple. Ms. Moore was identified and approved as a Post
Traumatic Stress victim by the Department of Labor. Her single medical issue is that she
cannot go door to door as a letter carrier. Not much of a disability for an agency with over
650,000 employees. The employer in this case would have to find a job for an employee
with zero physical limitations, a position in city the size of Detroit to be in compliance with
the Rehabilitation act of 1973. To send her to Pittsburgh, Pennsylvania would be a violation
of the law and to refuse her work in Detroit is a violation of the law, she is not being treated
the same as handicapped individuals protected by the law. The NALC believes the Service
not only violated federal law in this instance but also the CBA when they failed to
acknowledge the grievant's rights and protections within the EL 307. When the Agency
takes a position like the one above regarding handicapped individuals they have also failed
to comply with 29 CFR 1614.203 of the Rehabilitation Act®, which states... The Federal
Government shall be a model employer of individuals with disabilities. -

Clearly the work was at Linwood finance while the grievant was assigned there and
the service offered no testimony to take the position the work does not exist today. What
you will find in the Joint Packet, specifically on page 77, is the argument of Deborah
Gruschow, at Formal A stating there was a 2-3 hour gap between duties for Ms. Moore.

Now it becomes imperative that we address the Formal A meeting to clarify details and

SSEE Joint Package B PG 95 | REHABILITATION ACT

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
32


oc
All grievances which have been held in abeyance will be processed in accordance with the
foregoing. ,

This settlement is without prejudice to the right of the Postal Service to propose changes to ELM
546 in accordance with the Article 19 process.

Please sign and return the enclosed copy of this settlement as your acknowledgment that this
case is closed, removing it from the national arbitration dcket.

Time limits were extended by mutual consent.

Sincerely,

LL

Alan S. Moore William H. Young

Manager, Labor Relations President

Policy and Programs National Associatlon of Letter
U.S. Postal Service Carriers, AFL-CIO

Date: y! H200F


4

Xl. Tt 1A D DING

The following cases were cited throughout the text of the brief and are listed here for
reference purposes.

CASE # HIC-5D-C 2128 Benjamin Aaron —Arbitrator
CASE # C-00936 05-20 1983
CASE # H1N-1J-C 23247 Neil Bernstein --Arbitrator
CASE # C-07233 08-07 1987
CASE # J90C-1J-C 92056413 Bernard Dobranski- Arbitrator
CASE # C-19717 06-14-1999
CASE # E90C-4E-C 95076238 Shyam Das- Arbitrator
CASE # C-23742 10-31 2002

Xi. ER DOCUMEN FFERED FOR REVIE'

Step4M-1500 *establishes PTF’s may be removed from a hold down
. assignment to provide limited duty work.

USPS Legal Brief for the above mentioned DAS Award

--found on pages 118 to 135 in JOINT PACKAGE B

JOGN-4J-C 09160991 Vesta Moore, Detrolt Michigan NALCBR1 ORT#06-130442
65


own craft. National Arbitrator Dobranski found no violation and his review of the Postal

Service position in the case, as well as his quote of Aaron, are significant:

The Postal Service asserts that its workers are covered and protected by
the Federal Employee Compensation Act (FECA) which makes certain
provisions for the treatment of employees who suffer on-the-job injuries. In
essence, FECA (5 CFR 353 .304) provides that employees who are
injured on-the-job through no fault of their own should not be
penalized solely because of their injuries. To that end, the Postal
Service is required to make "every effort" to find such employees
meaningful work. The FECA requirements have been expressly
recognized by the parties in the National Agreement in Article 21, Section
4, Injury Compensation. This language has been in the National Agreement
since 1973, and pursuant to this contractual commitment, the Postal
Service published Section 546 of the ELM. Pursuant to the legal
obligation of the Postal Service to comply with FECA and the
contractual obligation to issue appropriate regulations to comply.with
FECA, the Postal Service, pursuant to Article 19 of the National
Agreement, published Section 546. The parties recognized that Section

546 contained the Postal Service's legal responsibilities to employees with
job related injuries. The language of Section 546 was approved by the
APWU pursuant to their rights under Article 19 under the National
Agreement.

... Arbitrator Aaron, in relevant part, stated: “It is obviously too late in
the day for the Union [APWU]} to chalfenge the proposition that FECA
regulations can augment or supplement reemployed persons
contractual rights, The language of Article 21, Section 4 of the 1981-
1984 Agreement, previously quoted, makes clear that the rights of
such persons can be augmented or supplemented by federal
regulations, with which the Postal Service must comply...”

This rationale from the Aaron award is most persuasive.

In 2001, the Service themselves recognized the requirement of “make every effort”

in a National Arbitration case (E90C-4E-C95076238). In that case the Service gave an

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442 -
19


We believe we have proven the events that transpired through the attempt at
relocating Ms. Vesta Moore in the format used in the Detroit district was a direct violation
of both the ELM 546 pecking order, as well as the historical practice in place by the Union
and the U.S. Postal Service. For those reasons, we urge you to find in favor of the Union
and sustain this grievance in its entirety, including application of the remedy requested by

the NALC.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT# 06-130442
60


as her answer. When she was asked whether of not she had the right to send Moore back
to her physician for clarification she deferred to the medical members of the team. These
people were never identified in the file and it failed to answer the Unions question. Mr.
Bunch answered the same question similarly in referring to the medical team members.
Regarding the CA-17’, to consider its value, you must look at the entire NRP and procedure
it developed. As you recall, The NALC questioned Ms. Doss if she was required to have
the grievant's most recent medical information, she said yes she used the CA-1 7, dated 10-
17-08, in the file. When asked again if the NRP required her to use the most current
medical and was it in the file she shrugged her shoulders and went back to her first answer,
The NALC will show the arbitrator where It is at in the file. On page 47 of Joint Packet A,
Step 2 , first diamond point, states... Medical Update, show a copy of their most recent
medical update, confirm that this medical documentation is the most current with the
employee. Page 21A, specially item 7H., speaks to Moore receiving her medical
documentation (CA-17)

Ms. Doss message was very clear based on her answer to the question involving
medical documentation, the grievant could not be exposed to anyone wearing a uniform.
Ms. Doss was questioned by the Union questioning why the NRP committee did not seek
clarification on medical documentation within the file when the grievant clearly objected to

the USPS interpretation of what the CA-17 noted. Part of the NRP is to obtain the most

7 Found on page $ of the JOINT FILE A

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
37


IX.

REQUESTED REMEDY

The following remedy request was made by the local union in the joint file and was

advanced to you during arbitration as the remedy sought by the Union.

Find the subject NRP Job Offer a violation of the Collective Bargaining
Agreement and/or applicable law.

Vacate the subject NRP Job Offer. -
Return the grievant to her original Form 50 assignment, or as close as the
pecking order of ELM 546 possibly allows.*

Reimburse the grievant for any mileage incurred while reporting to the new
NRP Form 50 assignment, at $.55/mile (IRS Rate). ~
Pay the grievant “Out -of Schedule Overtime as a fashioned Remedy for

any hours worked outside of the prior work schedule of the grievant at the

original Form 50 Assignment.

“Item three was changed to comply with the contractual application of the ELM.

Arbitrator Dilts, after hearing the NALC presentation on April 23, 2010 and after

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442

61



procedure spelled out in Article 15 to enforce the Service's NLRB
commitments.
Not all unilateral actions are’ prohibited by the language in Article 5—only
those affecting wages, hours or working conditions as defined in Section 8(d)
of the National Labor Relations Act. Additionally, certain management
decisions concerning the operation of the business are specifically reserved
in Article 3 unless otherwise restricted by a specific contractual provision.

JCAM page 13-1 / ARTICLE 13
ASSIGNMENT OF ILL OR INJURED REGULAR WORKFORCE
EMPLOYEES

The provisions of Article 13 govern voluntary requests for light duty work by
employees who are temporarily or permanently Incapable of performing their
normal duties as a result of illness or injury. The term “light duty” should not
be confused with the term “limited duty.” The term limited duty is not used
in the National Agreement. Rather, the term limited duty was established
by 5 Code of Federal Regulations, Part 353—the O.P.M. regulation
implementing 5. U.S.C. 8151(b), that portion of the Federal Employees’
Compensation Act (FECA) pertaining to the resumption of employment
following job-related injury or illness. USPS procedures regarding
limited duty are found in Part 540 of the Employee & Labor Relations
Manual (ELM). Limited duty may be provided for an employee who is
temporarily or permanently incapable of performing his/her normal
duties as a result of ajob related compensable illness or injury. National
Arbitrator Mittenthal held in H8N-5B-C 22251, November 14, 1983 (C-
03855), that Article 13, Section 4.H applies to both light and limited duty
situations (see below).

An employee who has suffered a compensable illness or injury may seek
permanent light duty work through the procedures provided in Article 13.
However, in most circumstances such employees will find the procedures and
regulations provided in ELM Chapter 540 better suited to their needs. The
limited duty provisions contained in ELM Section 540 will be discussed at the
end of this article. :

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1 :
Submitted by; Richard M. Gallo Page 11

duty and would never have been created by management because no need
for the Article 37 duty assignment existed.

Pg. 7 Article 37 duty assignments and Article 21 Rehabilitation Assignments :
are separate and distinct... Such Article 37 duty assignments are driven
solely by management's operational needs. This is not true for rehabilitation
assignments. Rehabilitation assignments are created as a result of legal,
contractual and regulatory mandates. Those were the words of John Dockins,
legal counsel for the US Postal Service cited above. These remarks parallel the opinion
shared by the NALC in the instant case. When you read the award Das renders, it is of
interest to note that the NALC was a joiner in this action with the Service. NALC Vice -
President Ronald G. Brown testified on behalf of the Postal Service position. At
conclusion of the reading of this award, we are convinced that you too, Mr. Arbitrator,
will take notice that the local management of the Detroit district deviated from the path
it had taken for over 30 years. The same path It shared with the NALC regarding
treatment of its injured workers. More importantly, they have deviated from the once
again agreed upon language of the M-1706 settlement. Arbitrator Das makes the
following remarks in his opinion after the briefs had been submitted by the parties:
National Arbitration Case No. E90C-4E-C95076238; Arbitrator DAS :

Pg. 12 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 .2 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


Those were the words of John Dockins, legal counsel for the US Postal Service cited
above. These remarks parallel the opinion shared by the NALC in the instant case. When
you read the award Das renders, it is of interest to note that the NALC was a joiner in this
action with the Service. NALC Vice President Ronald G. Brown testified on behalf of the
Postal Service position. At conclusion of the reading of this award, we are convinced that
you too, Mr. Arbitrator, will take notice that the local management of the Detroit district
deviated from the path it had taken for over 30 years. The same path it shared with the
NALC regarding treatment of its injured workers. More importantly, they have deviated
from the once again agreed upon language of the M-1706 settlement. Arbitrator Das
makes the following remarks in his opinion after the briefs had been submitted by the
parties:

National Arbitration Case No. E90C-4E-C95076238; Arbitrator DAS :
Pg. 12 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 .2 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 §46 . When the injured employee
vacates the assignment , it will no longer exist .

Pg. 13 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 .

Pg.15 Finally, the Postal Service contends that testimony in the

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
21


Amicus Brief: James C, Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 10

an injured letter carrier a limited duty job in the clerk craft. The APWU filed a grievance
maintaining that the position should be given to a member of the clerk craft. The
Service defended their position by stating that the position was not posted for bid
because the limited duty work had no operational necessity and that the position was
created out of its contractual and legal obligations. Relevant excerpts from the Dockins
brief for the USPS are as follows:

9. 2 The rehabilitation assignments at issue are by definition uniquely
created for employees who were injured on the job and continue to have
work restrictions. A uniquely created rehabilitation assignment is therefore -
not an Article 37 duty assignment. It only exists as a result of the need to
reassign an injured employee.

9.4 If there was a bona fide operational need for the craft duty assignment
it would have been created long before the rehabilitation assignment was
created,

Pg.4 However, nothing in the Agreement impedes management's exclusive
right to assign employees to work when or where they are needed and create
Article 37 duty assignments to maintain efficiency of the operations. This is
in sharp contrast to the rehabilitation assignments created under Article 21,
Section 4.

Pg. 6 In the instant case... the rehabilitation assignment was created as a
result of the injury compensation contractual requirements. The

rehabilitation assignment did not exist before the employee was injured on


related illnesses or injuries to established jobs which are not medically
contraindicated, and within the requirements of applicable collective
bargaining agreements.

The language and application of above provision was subsequently changéd in
1979 as result of a dispute over the language placed in the first edition of the ELM.
This was following the Postal Reorganization Act which placed all employees under
the Federal Employees Compensation Act [FECA]. Section 540 of the ELM was the
means of implementing the injury compensation program set forth in the FECA.
The national parties negotiated the new provision and placed it into the ELM and
the basic language has never been changed. M-1010' changed the language in the
ELM 546.142 requiring the Service to no longer limit its search for work for injured workers
to just established jobs or productive work. These words were removed from the
language in the ELM and replaced with the language mirroring the “must make every
effort” terminology found in SCFR 353.301(d).

It should be noted that the words “established jobs” were replaced with the new ELM
language which provides ‘limited duty” work that is available within or without the
employees craft, work facility, and regular work hours. The words “maximum efforts” were

replaced with “must make every effort”. The previous reference to “productive” work was

" SEE Joint Package B PGS 114-115 / M-1010 ELM Settlement

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
15


«, Lthy

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 Step 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
Arbitration under Article XV, Section 4 C, of the National
Agreement.

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
ef their regular work schedules and/or their regularly
assigned work facilities. The grievance can, therefore, be
considered closed.

Sincerely,

Lh oigll Sp
,William BE. Henny, Jr. Vincent R. Sombrotto,

f°

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


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 18

bargaining agreements provide a system of excessing and reassignments, as well as
lay-off provisions. These methods accomplish the same result using seniority, without
discriminating against handicapped employees.

It is also suggested that the Board would be well-served to apply any conclusion
resulting from its Amicus Brief announcement to any USPS NRP cases, even if such
cases have already been adjudicated. It would serve no judicial benefit to limit these
clarifications only to a prospective application. In fact, such a decision would
automatically disenfranchise every appellant who simply had the bad fortune to have
filed their appeal before Latham. Clearly, if the Board determines that it had taken an ~
incorrect path; there must be some mechanism to apply any new clarification or
standard to those cases presenting like or essentially similar issues which have already
had decisions issued. Justice implores that such appeals be adjudicated based upon the
facts, not based upon the time the appeal was initiated. It is also imperative that usps

NRP cases are, at a minimum, subjected to the same standards by the Board.

The following documents are included as attachments:
1. M-01010 October 26, 1979 settlement in grievance N8-NAT-003.

2. M-01550 August 19, 2005 settlement in Valley Stream, NY Limited Duty issues.

3. M-01706 June 18, 2009 settlement in QO1N-4Q-C-07190177.

4. M-01264 January 28, 1977 Settlement in G90-4G-C 95026885.

5. M-01316 May 21, 1998 Settlement in F94N-4F-C 96032816.
6. NALC Arbitration Brief in case JO6N-4J-C-09160991 by Jeffrey Fults.

7. USPS Brief in case E90C-4E-C-95076238 by John Dockins.


Amicus Brief: James C, Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 7

...(T)he applicable regulations, Previously quoted, make it clear that an employee who
has partially recovered from an on- the-job accident, and for whom no work within
prescribed medical limitations in his or her own craft is available, must be offered a ,
position in another craft in the same work facility that minimizes adverse or
disruptive impact on the employee, LEmphasis added]

In 1987, National Arbitrator Bernstein in Case No. H1N-IJ-C23247 settled a
dispute clarifying the Service's obligation to continue to search for work for an injured
worker as for the duration of that workers employment:

Pg. 10 Further, the present National Arbitrator is not bound in any way by awards
issued by regional arbitrators on this issue. The whole purpose of the national 7
arbitration scheme is to establish a level of definitive rulings on contract interpretation
questions of general applicability. National decisions bind the regional
arbitrations, and not the reverse.

Pg.13-14 The Arbitrator holds that this interpretation of the provision is barred by the :
specific mandate in the section that the Service "should minimize any adverse or
disruptive impact on the employee", The Arbitrator agrees with-the union that
this mandate creates an obligation on the Service that is a continuing duty ;

for the entire period of the employee's disability. The Service is contending that

there should be a point in time at which it has the right to "wash its hands" of a

articular injured employee and move him out of his craft and into another one for the

remainder of his career. Perhaps it would be sound policy to have such a 7

Provision in the section, but there is no language to that effect in that section

at this time. Section 546.14 must be read to impose a continuing duty on the


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Title V Section 353.301 (d) , that states she must be kept in her local commuting area. Had
the “ongoing obligation” to search for work been continued as described by Arbitrator
Bernstein, this would not have happened. The transfer to Moore occurred a year ago, in
that period of time there hasn't been effort to restore her back to a higher level in the
pecking order of ELM 546. Instead, the Detroit district ignored the obligation to continually
put an injured employee back to her original status prior to her injury.

Arbitrator LaLonde BO1N-4B-C 06189348 had this to say regarding the new
definition used by the USPS in an attempt to show they had searched for “Productive
and Necessary" work, We will reference LaLonde again later in this brief.

The terms of the Settiement clearly support the Union position that the
Service was employing new and different criteria (or its interpretation)
in the Grievant's situation; criteria different from what had been done
in the past. The “necessary work” and “operational needs” standards
used by the Service as justification where it has not been shown to
have applied in the past is not in conformance with clear understands
derived from the Settlement between the parties.

Paramount to the Union case is the recent Step 4 Settlement M-01706 which
establishes that ‘The NRP has not redefined or changed the Postal Service's obligation
to provide limited duty or rehabilitation assignments for injured employees or not
developed new criteria for assigning limited duty.” The modified job offers in the case
file clearly show newly established criteria that the Service had used to assign limited duty

work. Testimony from the grievant established her medical restrictions had not changed

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
44


M-01264

(Lason Revanons

UNITED STATES RECEIVED
POSTAL SERVICE “SAN 2 7 1997
CONTRACT ADMINISTRATION INIT
BALL. HASHMUlis, OC.

Mr. Vincent R. Sombrotto

President

National Association of Letter Carriers, AFL-CIO
100 Indiana Avenue NW

Washington DC 20001-2197

RE: G90N-4G-C 95026885
Kurszewski, T.
G90N-4G-C 95026886
Starrett, D.
G90N-4G-C 95026887
Niewdach, D.
Little Rock, AR 72231-9511

i .

Dear Mr. Sombrotto:

On January 10, 1997, | met with your representative to discuss the above-captioned
grievances at the fourth step of our contractual grievance procedure.

The issue in these cases is whether management violated ELM Section 546.14 in
moving the grievants’ limited duty assignments.

During this discussion, we mutually agreed that no national interpretive issue was fairly
presented. Accordingly, we agreed that the provisions of ELM 546.14 are enforceable
through the provisions of the grievance/arbitration process. Whether an actual violation
occurred is fact based and suitable for regular arbitration if unresolved.

Please sign and retum the enclosed copy of this decision as your acknowledgment of
agreement to remand these cases.

Sincerely,

fot bons

Paul A. Lyons Gl
Labor RelationsSpecialist

Grievance and Arbitration ational Association of Letter Carriers,
AFL-CIO

AL YEL97
Date

475 L'Exeant Pua SW
‘Wassauaton DC 20260-4100



Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 14

The Postal Service makes no such assertion. If an employee reaches
maximum medical improvement and can no longer perform the essential
functions of the city letter carrier position, the Postal Service ds obligated to

seek work in compliance with ELM Section 546 and, if applicable, the

Rehabilitation Act.


Vv. LIST OF WITNESSES

Carl Blassingame, Vice Pres. 1 / Technical Advisor for the Union

UNION

Steve Burt, Steward
Vesta Moore, Greivant

EMPLOYER

Debra Doss, NRP team member
Ken Bunch, Manager of Compensation, NRP team member

Vi. RELEVANT CONTRACT PROVISIONS

ALL PERTINENT PARTS HIGHLIGHTED IN BOLD LETTERING, ITALICS,
UNDERLINED OR ANY COMBINATION THEREOF WERE ADDED BY THE NALC
ADVOCATE TO SHOW EMPHASIS, ALL INDENTED ENTRIES SHOWN IN
ITALIC CASE IDENTIFIES LANGUAGE EXTRACTED FROM ARBITRATION
AWARDS OR WERE QUOTES FROM THE INSTANT CASE.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442


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

V. — Article 37 Duty Assignments and Anticle.21 Rehabijitation Assignments are
Separate and Distinct
As discussed above, management has the exclusive right to create, abolish or revert
Anticle 37 duty assignments, Such Article 37 duty assignments are driven solely by
Management's operational needs. This is not true for rehabilitation assignments.
Rehabilitation assignments are created as a result of | legal, contractual and regulatory
mandates,

The Postal Service's legal obligations to employees injured on duty begin with Title 5,
U.S. Code, Section 8151. This is commonly referred to as the Federal Employees
Compensation Act (FECA). (See USPS Ex. 1) Section B of Section 8151 authorized the
Office of Personal Management (OPM) to issue regulations concerning the
administration of injury compensation programs. Pursuant to this authority, OPM issued
Title 5, CFR Section 353. (See USPS Ex. 2) Section 353.301 Subpart (d) states “The
agencies must make every effort to restore an employee in circumstances in each case.”

As a result of this legal mandate the parties negotiated Article 21, Section 4 which states:
Injury Compensation ;
Employees covered by this Agreement shall be covered by subchapter ! of
Chapter 81 of Title 5, and any amendments thereto, relating to compensation for
work injuries, The Employer will promulgate appropriate regulations which

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

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


aod a

Xlll. CE 1 F VI

| certify that a copy of the attached brief and cites were sent by Regular Mail this day to

the following:
Arbitrator

David Dilts
4505 REDSTONE CT

FORT WAYNE, IN 46835-4270

Respectfully submitted,

lie

Regional Administrative Assistant
cc: USPS Advocate

NALC/NBA Pat Carroll
File

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALC BR 1

May 1, 2010

DRT# 06-130442

66


Amicus Brief: James C. Latham, et al v, U. S. Postal Service
MSPB Docket # DA 353-10-408-I-t
Submitted by; Richard M. Gallo Page 15

June 2009
As you are aware the application of the National Reassessment Program (NRP) became
an Interpretive issue which was eventually resolved by the National Parties upon the :
signing of the Step 4 Agreement (M-01706) in the summer of 2009. Important
excerpts from that decision are as follows:
1. The NRP has not redefined or changed the Postal Service's obligation to _
provide limited duty or rehabilitation assignments for injured employees. The
ELM has not been amended and remains applicable to alf pending grievances.
2. The Postal Service has not developed new criteria for assigning limited
duty. Injured employees will continue to be assigned limited duty, in accordance
with the requirements of ELM 546 and 5C. F. R. Part 353
3. Employees on existing non-workers compensation light duty assignments
made pursuant to Article 13 of the National Agreement will not normally be
displaced solely to make new limited duty or rehabilitation assignments unless ~
required by law or regulation. The foregoing sentence does not establish any
guarantee of daily work hours for employees in a light duty assignment.
This settlement is without prejudice to the right of the Postal Service to propose
changes to ELM 546 In the Article 19 process.
The cited resolution established that the Service's obligations regarding limited duty
Positions have never changed. The Service has agreed that new criteria have not been
established in assigning limited duty jobs. Of utmost importance Is the fact that the.
Service has acknowledged that the ELM has not changed or its legal requirements and

in order for the Service to change their criteria it must be accomplished through the


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

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

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

determining factor was that the reassignments were made pursuant to the injury

compensation program.

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

It is undisputed that the reassignment was a uniquely create position created solely
because of management’s responsibilities to reassign or reemploy employees because of ,

on the job injuries. The guidance provided in these previous national awards should be


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

This interpretive case is predicated on the fact that these are uniquely created
rehabilitation assignments tailor made for the injured employee. If in fact the
rehabilitation assignments must be posted, it is almost certain that able bodied clerks
other than the injured employee would be awarded the bid. The injured employee would
have no right to even bid on the job created for the sole purpose of reemploying the
injured employee. (See Suriano testimony at TR1-179) In fact, the injured employee
would never be reassigned into the clerk craft until a job offer is made that would pass
the approval of the Department of Labor and the Office of Workers’ Compensation.
Such job offer could not be made if the assignment had to be posted within the gaining
craft for bid first. It would not be an available assignment until the bidding process was
completed. Therefore, the injured employee for whom the rehabilitation assignment was
created would not be able to bid for the assignment since they still have not been assigned
to the gaining craft.

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


position description of a General Clerk. That does not detract from the
tact that it was uniquely created 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.

It becomes obvious, the Detroit district is of a differing opinion than their leaders at
the national level when it comes to defining what work can be performed by injured letter
carriers.

This leads into the next claim the USPS advocate made in her opening. The NALC
would attempt to discredit the NRP process by saying this process is in violation of ELM
546. We agree with the settlement language cited in the Step 4 by management. We agree
so much that we requested that step 4 be entered into the record as a joint exhibit, M-1706.
The disagreement we have with the Service is the Detroit district is applying their own
interpretation to the settlement in defining work to injured carriers prior to implementation.

An cenple to the Agency's understanding of ELM 540 requirements can be
illustrated in the citation they offered to you during its opening. The Agency cited Arbitrator
Lennart V. Larson, S1C-3U-C 794, in their opening, this particular case involved one of
“Light Duty”, not one of “Limited Duty”. Mr. Acevedo was injured during his duty in the U.S.
Navy prior to his employment with the U.S. Postal service. He was not injured as a result

of his employment thereby requesting light duty as opposed to limited duty. We refer you

back to the JCAM page 13-1 of Article 13 which states In part... -

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442


Arbitrator Axon E90N-4E-C94004012

itis at this point that Section 546 .141 of the ELM comes into play . Section 546.141
demands that management make substantial accommodations for employees who
suffer on-the-job injuries . Arbitral authority is well established that Section 546 .141
places significant constraints on management's ability to assign limited duty
employees . In the present case , Postal Service accommodated Grievant in two bid
jobs over a period of two years .

Where the Postal Service has successfully accommodated a limited duty
employee for two years , it bears a heavy burden to demonstrate that it can
no longer accommodate that employee . The Arbitrator holds the Postal
Service's evidence was insufficiently detailed, precise and documented, that:it
could no longer accommodate Grievant in his bid assignment .

Arbitrator Reeves E94N-4E-C 9921 5892

It is management 's burden to demonstrate in arbitration that it attempted to comply
with each step outlined in Section 546.141, beginning with the need show there was
no longer any available work at the Ivywild facility . After all, the Grievant had been
working at that facility for approximately two years prior to management's decision to
transfer him to Antares Station. There was no testimony that the Grievant's
performance was unacceptable or that he was ever chastised for not staying busy.
Management simply makes an assertion in its Step 2 response that "Ivywild Station
has three permanent rehab positions . Sufficient work was not available for a fourth
permanent rehab position." As noted by Arbitrator Lange (C#09589), "However,
the bare assertion that there was no available work, without additional
substantiation, is insufficient to demonstrate compliance with Section 546.141
and does not shift the burden of proof to the Union to demonstrate that work
was available.”

The union will also rely on this arbitration in support of their claim that the service has
the same obligation to provide a “rehabilitation job" under 546 ELM as it does to provide
“limited duty*.

Arbitrator Gentile F9ON-4F-C 95045308

Arbitrator Abernathy then concluded after an analysis of a number of prior arbitral
decisions, that . the USPS has the burden of proof that it followed the “pecking order"
or "progression" of ELM Section 546 .14la (I), (2), (3) and (4) when it assigned the

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442 =
46


RICK GALLO

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

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

Vi. Th lished Inji compensation Program W: roved le APWU
and It is Far Too Late To Argue that Rehabilitation Assignments are Duty
Assignments :

As discussed above, Article 21, Section 4 requires Management to promulgate
appropriate regulations to comply with federal law. These regulations can be found at
ELM Section 540. In 1979 the NALC filed a national level grievance challenging the
application of ELM $40 in that Letter Carriers injured on duty were being reassigned to
clerk crafi positions “well beyond the installation that they worked in and on tours that
they—that were alien to them”, (See APWU Tab 5, page 13 and USPS Ex. 4)

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

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


M-01550

The Postal Service makes no such assertion. If an employee reaches maximum medical
improvement and can no longer perform the essential functions of the city letter carrier position,
the Postal Service Is obligated to seek work in compliance with ELM Section 546 and, if
applicable, the Rehabilitation Act.

We do not believe these issues to be interpretive, nor do we believe we have a dispute on the
application of ELM Section 546 or the Rehabilitation Act.

If you wish to discuss this matter further, please contact Charles Baker at (202) 268-3832.
‘Sincerely,
Ad.

Acting Ménager
Labor Relations Policies and Programs -

——— JEB

——— FYR
BEH

——_ MW

DTS



exists, the crux of the grievance centers around the reasoning that was used to withdraw
the work. The three central reasons used by the USPS in withdrawing this work were
injured letter carriers can no longer perform managerial work, can no longer cross crafts
to find work and can no longer work within their own craft if it is what the USPS have
determined to be bid assignment work. This was the USPS position in this case, this along
with a fabricated story about Vesta Moore having medical restrictions which required her
to not be in contact with employees in uniform. | say fabricated because keep in mind that
Moore testified that she wore a uniform from the time she returned to work until she was
detailed to the GWY building in operations. She also testified that from the time she left
operations until she was sent into the Mailhandler craft she wore a uniform and worked
around postal police and window clerks in uniform. The service did not attempt to dispute
this testimony any time during the hearing. We will address those reasons for withdrawal
throughout the brief and as we address those specific reasons we ask you to pay particular
note to the way injured employees were treated in the past as compared to present time
and what contractual basis exists for the changes made to finding work or withdrawal of
work.

It is also necessary that the union establishes this grievance is not a dispute against the
National Reassessment Process, but a dispute about local management's application of that
process and the recent Step 4 Settlement M-01706. To clarify this even further, while the Service

may attempt to justify its actions as being acceptable through the National Reassessment

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
25


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

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

SIL Management Has the Exclusive Right to Abolish and Revert Article 37 Duty

Assignments

Hand in hand with the exclusive right to create Article 37 duty assignments is the
exclusive right to abolish or revert Article 37 duty assignments. Creating, abolishing and
reverting Article 37 duty assignments are all part and parce] of the process of determining
the methods, means and personnel by which such operations are to be conducted as
contemplated in Article 3.

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

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


(3) If adequate work is not available at the facillty within
the employee's regular hours of duty, work outside the
employee's regular schedule may be assigned as
limited duty. However, all reasonable efforts must be
made to assign the employee to limited duty within the
employee's craft and to keep the hours of limited duty as
close as possible to the employee's regular schedule.
(4) An employee may be assigned limited duty
outside of the work facility to which the employee is
normally assigned only if there is not adequate work
available within the employee’s work limitation _
tolerances at the employee's facility. In such
instances, every effort must be made to assign the
employee to work within the 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. ELM 546.14 specifies the steps that
must be taken in seeking limited duty work in order to ensure
the assignments are minimally disruptive to the ill or injured
employee. The Step 4 Settlement G9ON-4G-C 95026885,
January 28, 1997 (M-01264), specifically provides that the
provisions of ELM 546.141 (currently ELM 546.142) are
enforceable through the grievance/arbitration procedure.

JCAM page 15-1 / ARTICLE 15

Broad Grievance Clause. Article 15.1 sets forth a broad definition of a
grievance. This means that most work related disputes may be pursued
through the grievance/arbitration procedure. The language recognizes that
most grievances will involve the National Agreement or a Local Memorandum
of Understanding. Other types of disputes that may be handled within the
grievance procedure may include:

* Disputes concerning the rights of ill or injured employees, such as claims
concerning fitness-for-duty exams, first aid treatment, compliance with the
provisions of ELM Section 540 and other regulations concerning OWCP
claims.

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442 -


%

TES POSTS.

&
. 0 a .
z Pia 3 M-01010
2 Seg 8

Seeeve®

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

October 26, 1979

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

100 Endiana Avenue, N. W.
Washington, D. 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.
-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 (see 546.32).
In assigning such limited duty the USPS should minimize any.
adverse or disruptive impact on the employee. fhe 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.



district. The above quoted contentions from the Service are validated a second tirne on
pages 4 and 5 of the USPS Management Rep contentions in the B impasse. In the B
impasse on page 9, the USPS Management Rep restates... Management did find suitable
work in the GWY/PEDC but could not assign it to the grievant due to the excessing
of clerks. The B representative was very specific in how he wrote his impasse regeraing
excessing.

The Union must bring up the point that management never offered any contractual
support to their position, of excessing, at any time during the hearing. Where is it in Article
12 that the Dobranski national award is excluded during a period of excessing?
Management simply cannot support this position contractually, that ELM 546.142 does not
apply during excessing. Quite the contrary, the APWU has made the argument in front of
national arbitrator Dobranski stating the Memo of Understanding regarding Articles 7,12 and
13 allows them exclusivity to their craft, he responded “it is not persuasive”. Simply put, the
CBA nor any national award can provide language to support the USPS position that ELM
546.142 does not apply during a period of excess and covered under Article 12.

Ms. Gruschow speaks briefly about Ms. Moore's medical documentation in her
contentions, stating she perform “inside work only” and her physician states she could work
as a mail processing clerk but not as a letter carrier, attempting to justify why she was place
into the mailhandler craft. Mr. Bunch and Ms. Doss both testified to this same

“interpretation” of the CA-17. When questioned, Ms. Doss kept going back to “no uniforms”

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT#06-130442
36


Amicus Brief: James C. Latham, et al v. U. S. Postal Service
MSPB Docket # DA 353-10-408-I-1
Submitted by; Richard M. Gallo Page 8

Service to always try and find limited duty work for injured employees in
their respective crafts, facilities and working hours. The fact that such duty
might not be available at any point in time does not mean that it will never
become available, because there are many changes that can take place.
Therefore, the Service must be prepared to modify a limited duty assignment outside of
the employee's craft, facility or hours, when work within those conditions becomes
available.

January 1997

M-01264 G90N-4G-C 95026885 We agreed that the provisions of ELM 546,14 are
enforceable through the provisions of the grievance/arbitration process,

May 1998 -
M-01316 Established actions inconsistent with applicable laws are grievable.

June 14 1999

Again in 1999, the APWU challenges the 1979 provision of the ELM. The issue
resurfaced in this case determining whether the Postal Service violated Article 37 of the
APWU National Agreement by assigning rural letter carriers to temporary limited duty
work in the clerk craft when no work was available within their medical restrictions
within their own craft. National Arbitrator Dobranski found no violation and his
review of the Postal Service position in the case, as well as his quote of Aaron, are
significant:

The Postal Service asserts that its workers are covered and protected by the Federal
Employee Compensation Act (FECA) which makes certain provisions for the treatment -

of employees who suffer on-the-job injuries. In essence, FECA (5 CFR 353 .304)


INTERPRETIVE ISSUE PRESENTED

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

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

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

T think we at least are understood we're dealing with the uniquely created
position, whether there’s an obligation there to post. (See Transcript for second
day of hearing at page 312, TR2-312)

RGUMENT

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

L The Rehabilitation Assignments at Issue are Uniquely Created and Would Not
Exist But For the Obligation to Reassign the Injured Employee

The rehabilitation assignments at issue are by definition uniquely created for employees
who were injured on the job and continue to have work restrictions. A uniquely created
rehabilitation assignment is therefore not an Article 37 duty assignment. It only exists as
a result of the need to reassign an injured employee. It is a uniquely created
rehabilitation assignment created under the provisions of Article 2], Section 4 and ELM


employee with a disability based on the need of such covered entity to make
teasonable accommodation to such individual's physical or mental impairments

US CODE TITLE 5 / RESTORATION RIGHTS

5 CFR 353.301 (a)

Fully recovered within 1 year. An employee who fully recovers from a
compensable injury within 1 year from the date eligibility for compensation
began (or from the time compensable disability recurs if the recurrence
begins after the employee resumes regular full-time employment with the
United States), is entitled to be restored immediately and unconditionally to
his or her former position or an equivalent one. Although these restoration
rights are agencywide, the employee's basic entitlement is to the former
position or equivalent in the local commuting area the employee left.

5 CFR 353.301 (b)

Fully recovered after 1 year. An employee who separated because of a
compensable injury and whose full recovery takes fonger than 1 year from
the date eligibility for compensation began (or from the time compensable
disability recurs if the recurrence begins after the injured employee
resumes regular full-time employment with the United States), is entitled to
priority consideration, agencywide, for restoration to the position he or’she
left or an equivalent one provided he or she applies for reappointment
within 30 days of the cessation of compensation

5 CFR 353.304(c)

Physically disqualified. An individual who is physically disqualified for the former
position or equivalent because of a compensable injury, is entitled to be placed in
another position for which qualified that will provide the employee with the same
status and pay, or the nearest approximation thereof, consistent with the
circumstances in each case. This right is agency wide and applies for a period of
1 year from the date eligibility for compensation begins. After 1 year the individual
is entitled to the rights accorded individuals who fully or partially recover; as
applicable

JOGN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 DRT#06-130442
13



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

National Arbitrator Snow states:

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

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

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

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


eliminated from the old 1978 ELM provisions. Since 1979 the USPS, until recent
implementation. of NRP by a few over zealous districts, the USPS has agreed with the
NALC. Looking over the M-1550? document of the USPS response to the NALC questions
on the NRP program and the M-1706" document, settlement of the NRP program, itis very
clear the Service takes the same position as the NALC in that the collective bargaining
agreement must be held in compliance.

For nearly 30 years the parties have interpreted the “make every effort” language to
mean that the Service will offer limited duty to injured workers with importance not only
given to the work's operational necessity but also the inclusion answering phones, handling
edit books, delivering Express mail, sorting and delivering mail with accommodations in
one's assignment or in other's assignments. This obligation includes cross-craft
_assignments as well. As we stated in our opening John Dockins argued for the Service
[E90C-4E-C 95076238] that the APWU had lost their opportunity to grieve the provision in
the ELM when it was submitted in 1979. Not only did the APWU challenge this provision
again in 2001, they had previously challenged the provision in 1983.

Aaron CASE # HIC-5D-C 2128

In 1983, National Arbitrator Aaron faced the issue of whether the transfer of an

*SEE Joint Package B PGS 161 - 162 / M-1550 NRP Dispute
ISEE Joint 4

JOBN-4J-C 09160991 Vesta Moore, Detroit Michigan NALCBR1 ORT# 06-130442
16