Demoted Postal Manager Appeals Part-Time Status to MSPB

A former California Postal Manager is attempting to circumvent the seniority provisions of the APWU National Agreement.

The Postal Manager filed an appeal of the agency’s action removing her from the position of EAS-19 Manager Customer Services effective January 18, 2009. The parties entered into a settlement agreement disposing of the appeal, and the administrative judge entered the agreement into the record for the purposes of enforcement by the Board.

The appellant petitioned for review of a compliance decision that denied her petition for enforcement of the parties’ settlement agreement. The underlying appeal was resolved by a settlement agreement in which the removal was “retroactively converted to a voluntary downgrade” to a particular position at a particular postal facility, “with Sunday and Tuesday off, and 8:00 A.M. – 5:00 P.M. reporting time.”

At issue was whether the agreement provided for a full-time position, as the appellant claimed, or a part-time flexible position, with irregular hours and at different positions, as the agency claimed. The agency also claimed that the appellant’s construction of the agreement would require it to violate the applicable collective bargaining agreement (CBA).

In finding that the agency was in compliance with its obligations under the settlement agreement, the administrative judge determined that a part-time flexible Clerk will work on an anticipated schedule, subject to change, and that despite the agreement’s terms used to describe the specific work schedule for the position and the appellant’s understanding of those terms, the settlement agreement is unambiguous. The judge further found that, to the extent that the agency could be found not to be in compliance with the position assignment terms of the settlement agreement, the agency had shown good cause for its failure to comply due to the provisions of the CBA and because the agency had offered the appellant other full-time positions, which she had declined to accept.

The Board granted the appellant’s petition for review, vacated the initial decision in part, and remanded the appeal to the regional office for further adjudication:

1. In construing the terms of a settlement agreement, the words of the agreement are of paramount importance. The Board has no authority to unilaterally modify the terms of the parties’ settlement agreement, or to read a nonexistent term into an agreement that is unambiguous.

2. The clear, specific, and unambiguous terms of the agreement provide that the appellant would be placed in a full-time position with a specific schedule and duty station.

a. The fact that the agreement does not use the terms part-time flexible or full-time regular does not mean that the agreement was ambiguous regarding the nature of the position specified in the agreement.

b. The settlement agreement describes a specific position, at a specific location, with specific duty hours providing for 8-hour days, and 2 specific days off per week. The plain meaning of these terms is that the appellant would be working a full-time position with a specific work schedule at the South Downey facility.

c. The agency’s asserted interpretation would violate the general rule of contract interpretation that terms of a contract should not be interpreted so as to render them ineffective or superfluous. The agency’s interpretation would render the terms providing for particular duty hours and days off ineffective and superfluous.

3. Because the agency’s obligation to downgrade the appellant to a full-time Clerk position was a matter of vital importance to the contract, its violation of that obligation constituted a material breach of the contract.

4. The Board has generally declined to order an agency to do something that would violate the terms of a collective bargaining agreement. Whether honoring the terms of the agreement in this case would require such a violation is inconclusive based on the present record. On remand, the administrative judge will determine whether specific performance is an available remedy for the appellant, keeping in mind that a Board order of specific performance need not mirror the performance contemplated by the settlement agreement; rather it should be drawn so as best to effectuate the purposes for which the contract was made and upon such terms as justice requires.

Genevieve J. Flores v. U.S. Postal Service