Arbitrator Das Sustains APWU Grievance on Denial of Retreat Rights
APWU Web News Article 79-2012, July 2, 2012
In an award issued June 29 [PDF], Arbitrator Shyam Das sustained the APWU’s grievance over the denial of excessed employees’ retreat rights, but denied it in a dispute over the assignment of unassigned regulars to non-traditional full-time (NTFT) schedules.
The issue in the first case (Case#Q11C-4Q-C11322494) was the USPS’ refusal to permit excessed employees to retreat into NTFT duty assignments posted for bid subsequent to the conversion of part-time regulars (PTRs) and part-time flexibles (PTFs) in August 2011.
Arbitrator Das rejected all of the Employer’s arguments, finding that “[t]here is no contractual provision that supports the Postal Service’s action in precluding employees from exercising [their] retreat right until initial local placement of converted part-time employees was completed.”
Noting that the Postal Service failed to raise, let alone obtain the Union’s agreement to, such a restriction on the right of excessed employees to exercise their acknowledged retreat rights during negotiations, Arbitrator Das determined that the Postal Service’s unilateral determination to disallow the exercise of retreat right under these circumstances violated the Collective Bargaining Agreement. The issue of remedy was remanded to the parties and the arbitrator retained jurisdiction to resolve any remedial disputes.
The issue in the second case (Case #Q11C-4Q-C11322481) was the USPS conversion of PTRs and PTFs in August 2011 to unassigned regular status with temporary NTFT schedules.
Noting that this case raises complex issues, Arbitrator Das concluded that in the particular context of the “unique circumstances” of the August 27 th, 2011 conversion of some 9,000 affected converted PTRs and PTFs to full-time status pending initial establishment of a significant number of NTFT duty assignments, those converted employees had “no significant basis for complaint since they could be assigned under the NTFT MOU to residual NTFT duty assignments with equivalent schedules and had no reasonable expectation that they would, or would not, be placed in traditional schedules upon their conversion.”
The arbitrator reasoned that on the record of this case, “ it is reasonable to conclude that — although not specifically addressed in the NTFT MOU or other written agreement –- the parties during their negotiations contemplated that the Postal Service would have established NTFT duty assignments before it was required to convert PTs to full-time. Stated differently, the parties did not contemplate that there would be an interim period between conversion and establishment of NTFT duty assignments…”
As a result, Arbitrator Das continued, “[w]hile the parties did not expressly provide for [the conversion into NTFT schedules] in their agreement, they did not…contemplate the situation in which this arose.”
Noting that “the converted employees were not being directly converted into NTFT duty assignments to the possible detriment of other employees who might have exercised their seniority to obtain such assignments” and that the USPS began to post the newly established NTFT duty assignments within a month or two, Arbitrator Das denied the grievance.