The union recently appealed to national arbitration an issue concerning the employer’s obligation to meet with the union at the regional level no less than 90 days prior to involuntarily reassigning bargaining unit employees outside their craft or installation. The dispute arose when the APWU learned that management at the regional level was taking the position that the Postal Service would no longer provide the Union a 90 day notice when excessing occurs outside the craft or installation. In addition, it was reported that this decision was made at the headquarters level.
Click here for a copy of the Appeal to Arbitration and the parties’ 15-day statements
Dispute Initiated Over 60 Day Excessing Notice to Employees
The union recently intiated a national dispute over management’s failure to adhere to an agreement between the parties that when employees are excessed outside their craft or installation, such employees will be provided notice of a minimum of 60 days. In addition, this notice must include relevant information informing the employee of when and where they will be reassigned. Basic information informing such employees that they will be reassigned to an undetermined location do not meet requirements of the notice.
Click here for a copy of the Union’s national dispute letter
CALIFORNIA UNEMPLOYMENT INSURANCE APPEALS BOARD
(909) 987-XXXX
INLAND OFFICE OF APPEALS XXXX Arrow Rt, Bldg 19-A
PO BOX XXXX RANCHO CUCAMONGA CA 91729
GUILLERMO MOJARRO Claimant-Appellant
US POSTAL SERVICE c/o UCEXPRESS
Employer
Case No. XXXXXXX
Issue(s): 1256
Date Appeal Filed: 01/12/2010
EDO: XXXX BYB: 11/01/2009
Date and Place of Hearing(s):
(1) 04/12/2010 Rancho Cucamonga
Parties Appearing:
Claimant, Employer
DECISION
The decision in the above-captioned case appears on the following page(s).
XXXXXXXX XXXXXXXX, Administrative Law Judge
Case No.: XXXXXXX Inland Office of Appeals
CLT/PET: Guillermo Mojarro
Parties Appearing: Claimant. Employer
Parties Appearing by Written Statement: None
ISSUE STATEMENT
The claimant appealed from a determination disqualifying the claimant for unemployment benefits under Unemployment Insurance Code section 1256. The issue in this case is whether the claimant left the most recent employment voluntarily without good cause.
FINDINGS OF FACT
The claimant was employed as a Distribution Clerk. Level VI, for 22 years with the above-named employer earning $52,000 per year when his employee on October 30, 2009 under the following circumstances. The claimant resigned and accepted early retirement.
The claimant has a long, complicated history of grievances with his employer. The relevant portion of that history begins in February of 2007 when he was suspended for inappropriate conduct towards a co-employee. At the end of that brief suspension, the claimant informed the employer that he was not emotionally prepared to return to work. The claimant’s physician verified the claimant was unable to work because of his depression and anxiety. The claimant did not return to work before resigning on October 30, 2009 to accept his early retirement.
In February of 2009n the claimant requested to be returned to work. On March 26, 2009 the employer notified the claimant in writing that he was required to provide “objective and specific medical documentation sufficient to establish that you are able to perform the essential functions of your position, with or without accommodation…” before the employer could return him to employment. In response to this directive the claimant submitted a four-paragraph correspondence from his treating psychiatrist, Dr. Harry G. Lewis. The correspondence detailed the claimant’s condition, diagnosis and prognosis.
At the hearing the employer’s psychiatrist confirmed that this correspondence from Dr. Lewis “technically” satisfied the employer’s request for detailed medical documentation. Despite complying with the request, the employer did not return the claimant to his employment. Instead, it demanded that he submit to examination by the employer’s physicians. The claimant asserted his privacy rights and prevented the employer-appointed psychiatrist from sharing his
opinions with the employer. The employer refused to return the claimant to his position. The impasse was not resolved until the claimant became eligible for early retirement, which he then accepted.
REASON FOR DECISION
In Precedent Decision P-B-37 the appeals board held that in determining whether there has been a voluntary leaving or a discharge under section 1256 of the code it must first be determined who was the moving party in the separation. If the claimant left employment while continuing work was available, the claimant was the moving party. If the employer refused to permit the claimant to continue working, although the claimant was ready, willing and able to do so, the employer was the moving party.
An individual is disqualified for benefits if he or she has been discharged for misconduct connected with his or her most recent work. (Unemployment Insurance Code, section 1256.)
Absence caused by illness does not constitute misconduct. (Precedent Decision P-B-216.)
The department’s determination that the claimant was the moving party in this separation of employment is incorrect. The claimant had been out of work due to a psychiatric condition. The leave from work was approved by the employer. The claimant’s psychiatric issues were resolved according to the claimant’s treating physician, thereby opening the way for him to return to employment. The employer refused to permit the claimant to continue to work since it had not received a medical report from its own physician concerning the claimant’s medical condition. The claimant was ready willing and able to return to employment. Accordingly, the employer’s refusal to return the claimant to employment was the reason the claimant was forced to take early retirement, and thus the employer is the moving party in the separation.
The claimant was not discharged for misconduct connected with his most recent work. The absence from work was due to psychiatric medical condition. The employer approved the leave, and appropriately demanded medical verification that the claimant was capable of returning to his employment. According to the employer-appointed psychiatrist the claimant’s treating psychiatrist’s written release “technically” complied with the employer demand. Nevertheless, the employer refused to return the claimant to work.
The absence from work for a medical condition is not misconduct. The claimant was cleared medically by his own physician to the satisfaction of the employer’s written policy, and should have been returned to work. The employer’s refusal to return the claimant to work may have been for good cause. However, the decision not to return the claimant to his position was for reasons not amounting return the claimant to work may have been for good cause. However, the decision not to return the claimant to his position was for reasons not amounting to misconduct by the claimant. Accordingly, the claimant is not disqualified under code section 1256.
DECISION
The department’s determination is reversed. The claimant is not disqualified under code section 1256. and benefits are payable provided the claimant is otherwise eligible.
It is common sense that Union Officials are allowed special priveledge during an excessing situation. In theory, if a plant were to shut down and excessing was happening… and all Union reps were sent elsewhere… there would be nobody left to represent the remaining employees. The USPS has been taking some grand liberties with the CBA lately – pushing the envelope as far as it will go, and then some… blatantly violating the contract. All the Union can do is file and continue on through the grievance arbitration procedure… and that is exactly what the Union is doing.
Unions officials can’t be excessed, so there is no fear of them losing their jobs. It’s just the craft employees who lose in the contract, that allows eliminating employees with less than 6 years seniority by reduction-in-force. The union reps. allowed this contract wording, and thus screwed over the union members.
Once again this proves that the Union has very little say with the Postal Service. Is this a “inkling” of how negotiations are going to be when our Contract is up.