APWU: Arbitrator Denies Union’s Challenge To USPS Two-Tour Initiative
Arbitrator Issues Decision in Dispute Over Two-Tour Initiative
Arbitrator Das denied the union’s grievance challenging the Postal Service’s two-tour initiative. Das accepted the Postal Service’s argument that “Article 3 of the National Agreement grants the Postal Service the authority to unilaterally adopt and implement the … initiatives at issue, without further bargaining with the Union.” He cited language in Article 3 that states the Postal Service “‘shall have the exclusive right’ to ‘assign … employees,’ to ‘maintain the efficiency of the operations entrusted to it’ and to ‘determine the methods, means, and personnel by which such operations are to be conducted.’” Das also cited a 1977 national award in which Arbitrator Garrett stated that the Postal Service isn’t obligated “to engage in ‘collective bargaining’ as to whether or how it should exercise its authority under Article III of the National Agreement.” In addition, he referred to a 1973 national award in which Arbitrator Gamser stated that the right to change tour complements “appear[s] [to be] specifically reserved to Management under Article III of the Agreement as well as dictated in enabling legislation, Section 1001 of the Postal Reorganization Act.” (USPS #Q06C-4Q-C 09051867; 7/27/2010)
Click here for a summary and copy of the decision
Postal Maintenance Employees To Split Almost $92,000 For USPS Subcontractor Work
This is a summary of Regular Panel Arbitrator Andrew M. Strongin’s decision in case H06T-1H-C 08374323 regarding the Postal Service’s decision to subcontract the disassembly, transport, and installation of a Low Cost Tray Sorter from Cincinnati, Ohio to the West Palm Beach P&D. The Union contended that the work was subcontracted without the prerequisite “due consideration” of the five factors of Article 32.1.A of the National Agreement, and asked that all affected employees be made whole[1]. The Arbitrator sustained the Union’s grievance by ruling the Postal Service failed to give due consideration to the five factors of Article 32.1.A of the National Agreement, and that a make-whole award was appropriate. He found the Service’s repeated and continuous failure to provide relevant remedial information to the Union up to and including the date of hearing, and the lack of evidence that such information could be provided at arbitration that the remedy shall be measured by the only currently available evidence, which is the Maintenance Manager’s estimate of the subcontractor’s labor cost, as contained in his belated Article 32 analysis.
In requesting a make-whole remedy, the Union emphasizes that it timely sought from the Service, but even to date has not been provided, information relevant to the cost of the subcontract and the number of hours worked by the subcontractor’s employees. Based on the Service’s failure to provide the requested information, the Union argued that the appropriate measure for a make-whole remedy is the only evidence that exists in the record, which is the Service’s own estimate of the labor cost as set forth in Goodrich’s belated Article 32 analysis, or the lump sum of $91,580.00, to be divided between all affected employees.
Ruling for the Union the arbitrator correctly reasoned:
Ordinarily, a make-whole remedy in a subcontracting case would turn not upon the estimated labor cost of a subcontract, but instead on some measure of actual damages. Arbitrators differ over the question whether such actual damages should be measured, for example, by the subcontractor’s labor cost or by the number of hours devoted by the subcontractor to bargaining unit work, whether at straight time or overtime rates. In cases where evidence of actual damage is not available or is difficult to discern, it is not uncommon for questions of remedy to be returned to the parties for settlement. See, e.g., Case No. H7C-NA-C 36 (Mittenthal 1993) (“It may not be easy to construct a money remedy or to identify the injured employees. But the parties have been confronted in the past by remedy problems every bit as complicated as this one and they have been able through hard work and imagination to fine a mutually acceptable solution.”). . . Appropriate respect for the proper functioning of the grievance procedure generally, and the process for requesting and providing relevant information specifically, counsels in favor of an award of the estimated labor costs ($91,580.00) to be divided among all affected employees. The Service’s desire to limit the amount of the make-whole award is understandable, but the Service cites no contractual authority or arbitral precedent for limiting the award to the difference between the hours worked by bargaining unit employees during the time of the subcontracting, and the total hours they could have been required or allowed to work under the Agreement at that time. The Arbitrator rejects as inadequate that proposed measure of damages. Full employment of available employees generally is not a defense to subcontracting violations under the parties’ Agreement and related arbitral precedent with which the Arbitrator is familiar, and it bears noting that such a limitation on a make-whole remedy would permit the Service to violate Article 32.1 with virtual impunity in any facility where employees are fully occupied.
Gary Kloepfer
Assistant Director
American Postal Workers Union
APWU To Appeal District Court Decision On Address Management System Work
Fr: Greg Bell, Director
Industrial Relations
Date: June 1, 2010
Re: Decision of Federal District Court on Address Management System Work
Enclosed you will find a copy of a recent decision of the U.S. District Court for the District of Columbia regarding the enforceability of a 2003 award by Arbitrator Snow in which
he ruled that it is a violation of the National Agreement to exclude the Address Management System Specialist (AMS) position, and the disputed work, from the APWU bargaining unit.
(Q94C-4Q-C 98117564, 4/29/2003).
The court rejected APWU’s request for an order enforcing the award’s finding that the AMS Specialists’ work falls within the APWU bargaining unit, and instead ruled that the award
was unenforceable. (Civil Action 04-01404 (HHK), 5/24/2010) The APWU will be appealing this ruling.
A short summary of this case’s history is as follows. In 2008, the U.S. Court of Appeals for the D.C. Circuit reversed a prior decision of D.C.’s lower federal court in which the judge ruled that Snow’s award only reached the issue of placement of the AMS position and not whether the work should be assigned to bargaining unit employees. (It should be noted that after Snow’s award was issued, management filed a petition with the NLRB to overturn the Snow Award. To avoid further delay, the APWU agreed to clarify that the AMS Specialist position
was excluded from the bargaining unit, and the Board issued that clarification. The Union thereafter pursued enforcement of the Snow Award which found that the work performed by
AMS employees was bargaining unit work.) In its decision, the federal appeals court found that the arbitrator clearly determined that excluding “the work” that AMS Specialists perform from the bargaining unit violated the USPS-APWU Agreement. The court then remanded the case to the district court for a ruling on whether that finding was enforceable. The appeals court indicated that “[i]t is not immediately apparent whether the transfer of AMS Specialist duties to the bargaining unit would be an unlawful accretion [addition] under [National Labor Relations] Board precedent.” (550 Fad 27, 12/23/2008)
On remand, the District Court noted first of all that the parties do not dispute the NLRB’s determination that the AMS Specialist position “is outside the bargaining unit.” Then, after
reviewing several NLRB decisions with different outcomes to determine whether transfer of the work of AMS Specialists into the APWU bargaining unit is permissible under Board precedent, the court relied on two decisions in reaching a conclusion that “because the Board has determined that the AMS Specialist position is outside the bargaining unit, the arbitrator’s finding that the work of AMS Specialists is within it is in `explicit conflict’ with `legal precedents. ”
In reaching this conclusion, the court rejected APWU’s argument that another NLRB decision specifically supported finding that placement of the work in the APWU bargaining unit did not amount to “an unlawful accretion [addition] in violation of the National Labor Relations Act.” The District Court held that the Union’s goal was to subject AMS employees to the terms of the National Agreement, which constituted an accretion. The court was wrong as a factual matter — the APWU never sought to include AMS employees in the APWU unit, but rather recover the work for the Clerk Craft. The court misapplied the NLRB precedents it cited to support its ruling. The APWU will be filing an appeal with the Court of Appeals for the D.C. Circuit.
see District Court Case via American Postal Workers Union
APWU: Noncompliance with Das MS-47 National Award and Settlement on Custodial Staffing
This is a summary of Regular Panel Arbitrator Kathy Durham in case H06T-1H-C 08353750 and H06T-1 H-C 08353726 regarding the Postal Service’s non-compliance with the national settlement agreement which resulted from National Award of Shyam Das’ decision involving custodial staffing. The Postal Service framed the issue as, “Did Management violate the National Agreement and the Das Award (Q98C-4QC 02013900) settlement agreement by not creating PS Forms 4776-Preventive Custodial Maintenance Route?” The Union framed the issue as, “Did Management violate the National Agreement and the Das Award (Q98C-4QC 02013900) settlement agreement by not posting the two custodial positions identified on the March 22, 2008 “Approved Custodial staffing package”?
The arbitrator sustained the Union’s grievance by concluding:
The PS Form 4776s – Preventive Custodial Maintenance Routes- at issue were not finished at the time of the arbitration hearing. The staffing package approved on March 22, 2008, called for 55 custodians, an increase of 2. The two new positions should have been posted by March 30, 2008 and filled no later than April 26, 2008. They were not posted until August 28, 2008 and not filled until September 13, 2008. Cleaning of the high bays has now been reassigned to Maintenance Mechanics . . .
The Union’s evidence tends to demonstrate that between 4 and 7 employees should have been hired, and were not, as a result of management’s delayed compliance.
The Arbitrator provided the following remedy based on the clear violation of the Staffing requirements:
To remedy the harm to particular employees directly impacted and to the class, the following remedies are awarded:
1. $6,000.00 to the Union for lost dues for the relevant time period for “workers” whom management failed to hire. This shall be used for representational purposes.
2. Out-of-Schedule pay for the four employees who bid new jobs for the relevant time period.
3. Overtime pay for any Jacksonville NDC custodian on the ODL who was available to work during the relevant time period.
4. $7,000.00 to the Union to be used for representational purposes to benefit the craft/class as a whole.
Gary Kloepfer
APWU Selects Members For Advisory Committee In Upcoming Postal Contract Talks
APWU News
With contract negotiations set to begin later this year, APWU President William Burrus has announced the names of union members who will serve on the Rank and File Bargaining Advisory Committee. In accordance with the APWU Constitution [PDF], each member of the National Executive Board names one person to the committee; a 13th member, appointed by the president, is a representative from the APWU Deaf/Hard of Hearing Task Force.
click here to see committee list
The Rank-and-File Bargaining Advisory Committee provides input to the union’s National Negotiating Team, which has full authority to negotiate the terms of a new collective bargaining agreement. The committee must approve any tentative agreement before it can be sent to APWU members for a ratification vote.
Contract negotiations are set to begin Sept. 1. The current Collective Bargaining Agreement [PDF] expires on Nov. 20, 2010.
Postal Service to Conduct Study of Mail Processing Operations in Lafayette, IN
LAFAYETTE, IN — The U.S. Postal Service plans to conduct a study at the Lafayette Processing and Distribution Facility for possible consolidation of some operations into the Indianapolis Processing and Distribution Center. The study, known as an Area Mail Processing (AMP) study, involves a review of the mail processing and transportation operations to determine capacity needs at a facility in order to increase efficiency and improve productivity.
The need for the study comes as the Postal Service faces one of the most difficult challenges in its history. The current economic downturn and continued Internet diversion have led to a drastic decline in mail volume, with the loss of nearly 26 billion pieces in the past year. Mail volume is projected to fall another 11 billion pieces in the coming year. Even when the economy fully recovers, the Postal Service does not expect mail volume to return to previous peak levels, and is projecting annual deficits for the foreseeable future.
“As a result of the volume loss, we have more facilities, equipment and people than we need to process a declining volume of mail,” said Lynn Smith, District Manager for the Greater Indiana District. “We have to reduce the size of our network because we are no longer receiving enough revenue to sustain its cost.”
“One way to do that is to consolidate operations where feasible,” Smith added. “That is why we’re doing this study. Consolidating processing operations and placing our people where we need them makes logical business sense given the economic realities. We’re only doing what any company would do when it’s hit with a 13 percent decline in its business in one year.”
If the feasibility study supports the business case for changing mail processing operations, the Postal Service will hold a public meeting to allow members of the community to ask questions and provide feedback. This input will be considered in the final proposal.
“I want to assure everyone that we will not make any changes to our operations that would cause delays in your mail service,” said Smith.
The Postal Service is soliciting the public’s input as part of the study process. Comments may be submitted to:
Consumer Affairs Manager
3939 Vincennes Road
Indianapolis, IN 46298-9631
source: USPS
USPS, Charlotte APWU Reach $1.7 Million Settlement Agreement For Casual Grievances
The Charlotte Area Local has settled an outstanding casual arbitration which was returned to the parties for resolution of the remedy. The text of the settlement:
In accordance with the instructions of the June 5, 2009 interim arbitration award issued by Arbitrator Andrew Strongin in the above-cited grievances, the parties mutually agree, as a result of post-arbitration discussions, to fully resolve that the above-cited grievances in accordance with the following:
The Postal Service agrees to pay the affected employees of the Charlotte Area Local APWU a total of $1,700,000.00. The affected employees named by the Union will split the monetary remedy in equal proportions.
The Charlotte (North Carolina) Area APWU Local will furnish the Postal Service with the names of the employees affected by the above-cited grievances. The Postal Service will immediately begin processing payments to the affected employees and will make every effort to process payment submissions for all employees named and provided by the Union by the end of the Postal Fiscal Year (FY) 2009.
The parties understand that facilitation of payments to any employee affected by this settlement who has subsequently retired, who is no longer on the postal rolls, or who was on the postal rolls at the time the above grievances were initiated, but not in a pay status, may required additional time to process and may not be completed by the end of FY 2009.
By virtue of this full and final settlement agreement, this document shall also serve as the Union’s official notification to postal management that the parties will jointly contact Arbitrator Andrew Strongin to advise that an agreement to fully resolve these cases has been reached. Additionally, the parties agree that this settlement agreement is nonprecedent setting and will not be cited by either party in any subsequent grievance or arbitration hearing in any other case.
APWU, USPS Eliminate Face-to-Face Step 3 Grievance Meetings
In an article by Steve Zamanakos, APWU Denver Region Clerk NBA, he wrote :
“NBAs all across the country have been relegated to the telemarketers abyss. Effective in June, all Step 3 meetings and Direct Appeal meetings must now be conducted over the phone.”
“The officers at Headquarters APWU tell us in the field that this latest agreement to meet over the phone is being done as a “cost saving” measure. After all, travel is expensive and APWU membership is declining due mainly to the fact that our members are retiring and are not being replaced by the Employer. I have no problem with “cost cutting” so long as one doesn’t “gut” the very reason for our existence as a union.”
PR note: Many unionists believe this will mean more grievances unresolved until they have been scheduled for arbitration.
see article “As I see it” via 21 Century Postal Worker
APWU Assails USPS Inspector General On Custodial Subcontracting Recommendations
APWU News
APWU President William Burrus has strenuously objected to a recommendation in a recent audit by the USPS Office of the Inspector General that “blatantly urges postal management to seek an end to restrictions in the Collective Bargaining Agreement on custodial subcontracting.”
The report on Custodial Maintenance operations in the New York District (DA-AR-09-007 [PDF]) “does not respect the legally required bargaining process,” Burrus said in a June 4 letter [PDF] to Inspector General David Williams. In addition to suggesting changes to the outsourcing provisions of the contract, it also “encourages management to arbitrarily adjust cleaning frequencies.
“This reflects a level of ignorance of the bargaining process, which requires mutual agreement,” the union president said. “The American Postal Workers Union looks forward to participating in bargaining and discussing a wide range of proposals to improve efficiencies and reward employees.”
Although the objective of the report was to “determine whether the Postal Service uses its custodial maintenance resources in the most effective and efficient way in the New York District,” Burrus noted that the USPS ignores many opportunities for more efficient use of it resources.
“We fail to understand postal management’s refusal in previous negotiations to apply a cost-benefit standard to all decisions on subcontracting,” he said. “We also fail to comprehend any justification for rate discounts that far exceed the postal costs avoided” for large mailers who pre-sort their mail.
Burrus pointed out that the union has asked the OIG to investigate these “contractor-friendly” practices, and noted that “The OIG has repeatedly declined this invitation, choosing instead to intrude in the bargaining process.”
“This and other circumstances reveal that your office is selective in its identification of cost savings,” he said.
“I look forward to the 2010 contract negotiations, during which each party will advance proposals favorable to their respective interests. I suspect that you will not be present,” he told the Inspector General, “as that is not within your portfolio of responsibilities.”
APWU Protests Unilateral Elimination of Postal Districts
In a letter to John Dockins, USPS Manager, Contract Administration, APWU wrote:
Dear Mr. Dockins:
By letter dated May 21,2009, I informed that the APWU interprets the 2006 national agreement and the application of previous midterm USPS administrative changes to
contractual agreements as prohibiting the change of Postal Districts as informed by your letter of May 12,2009. The contractual provisions that will be affected by this
unilateral change are listed but not limited to the following:
Articles: 7.1.B.S. 14.8. A. 14.8. C.
25.2, Step 3. (c).
15.2. Step 3. (F) 15.3. F.
15.5. A.2.
15.5. A.4. 15.5. A,7. 15.5. A.8. 15.5. B.
15.5. B.6. 15.5. B.7. 15.5. C.
Memorandums: District Level Arbitration – Expedited
Supplemental Work Force; Conversion of Clerk Craft PTF’s
Leave Sharing
Transfers
PTF Reassignment Opportunities
Grievance/Arbitration Appeals
Training Committee
lf the Postal Service proceeds with this change despite the union’s objections we ask that the union and/or employees be made whole for any adverse impact of such change.
Sincerely,
William Burrus
President