MSPB to Hear Oral Arguments in NRP Appeals On December 13th
Filed under: mspb, nrp, postal, postal news, press releases, usps
On Tuesday, December 13, 2011, MSPB will hear oral arguments in the matters of James C. Latham v. U.S. Postal Service, MSPB Docket Number DA-0353-10-0408-I-1; Ruby N. Turner v. U.S. Postal Service, MSPB Docket Number SF-0353-10-0329-I-1; Arleather Reaves v. U.S. Postal Service, MSPB Docket Number CH-0353-10-0823-I-1; Cynthia E. Lundy v. U.S. Postal Service, MSPB Docket Number AT-0353-11-0369-I-1; and Marcella Albright v. U.S. Postal Service, MSPB Docket Number DC-0752-11-0196-I-1 (Latham et al.). The proceedings will take place at 10:00 a.m. at the United States Court of Appeals for the Federal Circuit, Room 201, 717 Madison Place, N.W., Washington, D.C. See 76 FR 73691, November 29, 2011.
Latham et al. raise the following legal issues: (1) May a denial of restoration be “arbitrary and capricious” within the meaning of 5 C.F.R. § 353.304(c) solely for being in violation of the U.S. Postal Service’s own internal rules; and (2) what is the extent of the agency’s restoration obligation under its own internal rules, i.e., under what circumstances do the agency’s rules require it to offer a given task to a given partially recovered employee as modified work? The Board requested and received an advisory opinion from the Office of Personnel Management (OPM) in this matter. See 5 U.S.C. § 1204(e)(1)(A). The Board also invited and received amicus curiae briefs. See 76 FR 44373, July 25, 2011.
The parties and the two amici curiae who asked to participate in oral argument will be allotted time to present oral argument in this matter. The briefs submitted by the parties and the amici curiae, as well as OPM’s advisory opinion, are available for viewing on MSPB’s website at http://www.mspb.gov/oralarguments/. The MSPB will also make a recording of the oral argument available on its website. The public is welcome to attend this hearing for the sole purpose of observation. Persons with disabilities who require reasonable accommodation to participate in this event should direct the request to the MSPB Director of Equal Employment Opportunity at (202) 254-4405 and V/TDD users should call via relay. All requests should be made at least one week in advance.
This is the third time that MSPB has conducted an oral argument in the past 15 months after not hearing oral arguments for over 20 years. The MSPB continues to utilize oral argument in appeals like Latham et al. that present issues of special significance because of their broad potential impact on the Federal civil service and merit systems.
The U.S. Merit Systems Protection Board (MSPB) is an independent, quasi‐judicial agency that protects Federal merit systems and the rights of individuals within those systems. The MSPB also conducts studies of the civil service and other merit systems in the Executive Branch.
source: Merit System Protection Board
An Adverse Ruling In EEOC Class Action NRP Case Could Have A ‘Material Impact’ On USPS
As PostalReporter.com noted earlier, USPS ended its National Reassessment Process (NRP) January 31, 2011. The statement by USPS below may be the reason it has quietly abandoned the program. Read more
USPS Ends National Reassessment Process (NRP) For Injured On Duty Postal Employees
From PostalReporter.com reader: National Reassessment Process is Dead! Finally! The attached notice is all we’re going to get? Note that the phrase “adequate work” has replaced NRP’s “necessary work.” This is consistent with ELM 546. The MSPB picked up on that.
As PostalReporter.com reported several months ago, USPS is referring to NRP as ELM 546.
Here is the text of USPS notice:
July 1, 2011
AREA VICE PRESIDENTS
SUBJECT: Modified Assignment Process for Limited Duty and Rehabilitation Employees
The reassessment of Limited Duty and Rehabilitation employees, referred to as the National Reassessment Process (NRP), concluded on January 31, 2011.
Assignment of Limited Duty and Rehabilitation employees will continue to be made in compliance with Employee and Labor Relations Manual (ELM) Section 546, Handbook EL 505, all applicable federal laws and regulations, and our collective bargaining agreements. And the attached Guidelines for Assignment should be used when trying to identify adequate work for limited duty and rehabilitation employees.
As questions arise, managers and supervisors should work closely with Health and Resource Management, Labor Relations, the Human Resources Manager, and the Law Department in order to clarify the issues presented and to ensure compliance with both Postal Service and federal regulations.
We will appreciate your support and assistance to ensure these guidelines are met.
Deborah Giannoni-Jackson
Vice President
Employee Resource Management
USPS National Reassessment Process (NRP) Notice
MSPB Accepting Amicus Briefs in Postal Workers’ National Reassessment Process Cases
Thanks to a PostalReporter.com reader for alerting us to this notice.
The Merit System Protection Board (MSPB) has announced an opportunity for interested parties to file amicus briefs (Literally, friend of the court. A person with strong interest in or views on the subject matter of an action, but not a party to the action) in cases pertaining to USPS’ National Reassessment Process (NRP). The amicus brief will pertain to OPM’s regulation 5 C.F.R. § 353.301(d) requiring USPS to “make every effort” to restore a partially recovered employee to limited duty within the local commuting area.” Read more
NALC Branch: 80+ Carriers Under NRP Returned to Work Will Cost USPS Nearly $2 Million
PostalReporter.com Note: The Letter Carriers cited below were sent home under the USPS “National Reassessment Process” (which has now been renamed “ELM546″ program). Some of the Letters Carriers have been sent home AGAIN by USPS after only two weeks back at work.
According to Robert Rutter, President, NALC Branch #1111 in its June 2011 Newsletter.
…..”Branch 1111 has put more than 80 Letter Carriers back to work who were put off “No Work Available,” and put back with full back pay and benefits. My rough calculation is that this liability will cost the Bay-Valley District just for our branch somewhere in the neighborhood of $1.5 million to $2 million. Kind of wipes our Customer Connect. But it should be enough o get somebody promoted!
NALC Branch #1111 is located in Richmond CA and represents Letter Carriers in most of the Bay Area :
Federal Disability Retirement for Postal Employees: Does the NRP Guarantee Success?
Editorial by Attorney Robert R. McGill, an exclusive to PostalReporter.com
In preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, one of the issues which always must be confronted is whether or not the U.S. Postal Service can accommodate an individual’s medical conditions, and the letters which are issued by the U.S. Postal Service as a result of the National Reassessment Process, might give some comfort to the Postal Worker that the issue of accommodation might be satisfied, and therefore that the chances of obtaining an approval of a Federal Disability Retirement application might be greatly enhanced. Such a belief, however, might result not only in a potential miscalculation, but lead one into a fatal error based upon wrong assumptions. Read more
APWU Issues Clarification On Types Of NRP Grievances Held Pending Outcome At National Level
Director of Industrial Relations Mike Morris has clarified the types of local- and regional-level grievances regarding the National Reassessment Process (NRP) that should be held in abeyance pending the outcome of Step 4 disputes at the national level. In a Dec. 16, 2010, memo [PDF] to APWU regional coordinators and national business agents, Morris outlined three issues related to the NRP that are pending arbitration. Cases that address these issues should await the outcome of the national-level grievance.
To:
From:
Re:
Regional Coordinators
National Business~.
Mike Morris, Direct Industrial Relation
Step 4 Disputes on National Reassessment Process
NRP Grievances Pending National-Level Grievances
There have been inquiries regarding which cases should be held in abeyance pending the outcome of Step 4 disputes relating to the National Reassessment Process (NRP). Currently disputes relating to NRP that are pending arbitration at the national level involve the following issues: (1) whether seniority has to be applied in reassigning employees who have been injured on duty but are partially recovered, (2) whether management’s obligation to locate a job for a partially recovered injured employee (whose recovery occurs more than one year from the date eligibility for compensation begins) extends beyond the employee’s local commuting area, and (3) whether a violation of the National Agreement exists when an employee who hasn’t completed one year of continuous LWOP is placed on separation-disability after he/she accepts nonpostal employment under the Office of Workers’ Compensation Program (OWCP) Vocational Rehabilitation Program.
The APWU’s position in the first dispute (USPS#QOOC-4Q-C 07006778) is that when two or more employees who have been injured on duty are considered for reassignment or reemployment during the same time period, management must conduct the interactive interview and job offer process called for by the NRP in order by seniority. Therefore, the most senior employee should be considered before the employee with the least seniority. In support of our position, the APWU cites ELM Section 546.21 (Compliance), which states that reassignment or reemployment of employees injured on duty shall be in compliance with applicable collective bargaining agreements, and individuals so reassigned or reemployed shall receive all appropriate rights and protections under the agreements. We then assert that seniority provisions in the craft articles are applicable in this case, consistent with the language of ELM Section 546.21. The APWU also refers to ELM Section 546.142 (Obligation) that in reassignment or reemployment decisions, the Postal Service “should minimize any adverse or disruptive impact on the employee.” We argue that loss of craft seniority rights constitutes an adverse and disruptive impact in violation of this ELM provision.
The APWU’s position in the second dispute (USPS#Q06C-4Q-C 07078116) is that the assignment of an employee with an accepted workplace injury, who has partially recovered more than one year from the date eligibility for compensation begins, shouldn’t be limited to the local commuting area. To support our position, the APWU cites ELM 546.142 which provides that management must make every effort toward assigning the employee consistent with the employee’s medically-defined work limitation tolerance. We assert that this language extends management’s obligation beyond the requirement of 5 CFR 353.301 (d), to make every effort to restore a partially recovered employee in the local commuting area. Our position is that the ELM language doesn’t limit the required “effort” by management to specific geographic areas. In addition, the APWU argues that by limiting the area for finding medical suitable work, the Postal Service could be prevented from assigning an employee and cause their eventual loss of postal employment. This limited search for jobs therefore violates the requirement in ELM 546.142 to minimize any adverse or disruptive impact on an employee.
The APWU’s position in the third dispute (USPS #Q06C-4Q-C 07153792) is that ELM 545.9 doesn’t permit the Postal Service to initiate a separation-disability before the expiration of one year of continuous LWOP/IOD. That ELM provision permits the issuance of a disability-separation only when an employee receiving wage loss compensation has been in continuous LWOP for a year, is not likely to return in six months, and USPS headquarters has concurred.
Editorial: 10 Tips to Remember When Filing for Postal Disability Retirement Benefits
Filed under: Articles, FERS, nrp, postal, postal news, retirement, usps
Article written exclusively for PostalReporter.com by Robert R. McGill,Esq.
Whether you call it “Postal Disability Retirement”, “Federal Disability Retirement”, or “OPM Disability Retirement”, the available options under the National Reassessment Program all lead to the same road: the injured Postal Worker is being squeezed out of the workplace, and it is time to secure one’s future by asserting the legal rights that are available.
If a gentleman tips his hat to a lady, has he given anything? If he tips his hat unaware that the lady is present, has he still tipped his hat? If you tip your hat to a waiter, have you satisfied the convention of tipping? If a man receives ‘a tip’, must it be of value in order for it to truly be a tip, or is bad advice, or nonsense, still considered a tip even if it leads to nothing? If a bill is for $1,000.00 and you leave a $100 tip, are you still a cheapskate? If the same person receives a bill for $200.00 and leaves a $100.00 tip, is he then a generous tipper? – From Top to Toe and Tip to Tip
10 Tips to Remember When Filing for Postal Disability Retirement Benefits
During this time of turmoil, when Postal employees are undergoing economic, financial, internal and structural corporate reverberations from all angles; where the Postmaster general has decided to call it quits and retire; where email and technology have altered the landscape of how a population communicates, thereby impacting the profitability of a mail service whose paradigm inception began in the days of Benjamin Franklin; during these economic times of hardship – when the National Reassessment Program is impacting Postal employees all across the United States – filing for Federal Disability Retirement is an option that Postal employees must consider.
Some common questions are often asked when contemplating filing for Federal Disability Retirement benefits for FERS & CSRS (as well as “CSRS-offset”) employees. How easy is it to get? Should a Postal employee try to submit the application for Federal Disability Retirement, get it rejected, then get an attorney? Should Social Security Disability benefits (SSDI) also be filed for? Should I file for Federal Disability Retirement benefits while I am on OWCP?
These are just some of the preliminary questions which a Postal employee will face when first contemplating filing for Federal Disability Retirement benefits. When contemplating this course of action, it is well to remember the following 10 “tips”: Read more
MSPB: USPS National Reassessment Process Must Find Work For Injured Employees In Commuting Area
Filed under: Injured On Duty, mspb, nrp, postal, postal news, usps
More MSPB cases filed by Postal Workers were remanded during the month of October. The cases were remanded because the Postal Service’s job search under the National Reassessment Process was limited to installations within a single district and failed to include the entire commuting area as required by 5 C.F.R. § 353.301(d). Each decision cited Sanchez v. USPS, 2010 MSPB 121.
The Office of Personnel Management’s (OPM’s) regulations provide:
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 would mean treating these employees substantially the same as other handicapped individuals under the Rehabilitation Act of 1973, as amended. 5 C.F.R. § 353.301(d).
The Board has interpreted this regulation as requiring agencies to search within the local commuting area for vacant positions to which an agency can restore a partially recovered employee and to consider her for any such vacancies. Sanchez v. U.S. Postal Service, 114 M.S.P.R. 345, ¶ 12 (2010); see Sapp v. U.S. Postal Service, 73 M.S.P.R. 189, 193-94 (1997); see also Urena v. U.S. Postal Service, 113 M.S.P.R. 6, ¶ 13 (2009) (evidence that the agency failed to search the local commuting area as required by 5 C.F.R. § 353.301(d) rendered nonfrivolous the appellant’s allegation that the agency acted arbitrarily and capriciously in denying restoration).
“For restoration rights purposes, the local commuting area is the geographic area in which an individual lives and can reasonably be expected to travel back and forth daily to his usual duty station.” Hicks v. U.S. Postal Service, 83 M.S.P.R. 599, ¶ 9 (1999). It includes any population center, or two or more neighboring ones, and the surrounding localities. Sapp, 73 M.S.P.R. at 193. The question of what constitutes a local commuting area is one of fact. The extent of a commuting area ordinarily is determined by factors such as common practice, the availability and cost of public transportation or the convenience and adequacy of highways, and the travel time required to go to and from work. Sanchez, 114 M.S.P.R. 345, ¶ 13.
Summary of MSPB cases on National Reassessment Process:
Appellant: Blanca G. Patino
Agency: United States Postal Service
Decision Number: 2010 MSPB 210
Docket Number: SF-0353-10-0183-I-1
Issuance Date: October 29, 2010
Appeal Type: Restoration to Duty
Action Type: Denial After Partial Recovery from Compensable Injury
In June 2009, the agency’s Bay-Valley District began implementation of Phase 2 of the National Reassessment Program (NRP). Under the NRP, the agency seeks to identify operationally necessary work for employees with compensable injuries. The Bay-Valley District undertook to identify operationally necessary tasks and assess employees on limited duty assignments for modified work assignments. On November 18, 2009, pursuant to the NRP, the agency provided the appellant a modified assignment as a Sales Associate for 3 hours a day. Starting December 17, 2009, the agency assigned the appellant to work 8 hours a day as a lobby host for the holiday season. *
The appellant filed an appeal alleging that the agency’s provision of only 3 hours of work was a rescission of her restoration to duty after a compensable injury and denial of reasonable accommodation. The agency filed a Motion to Dismiss the appeal for lack of jurisdiction. The administrative judge issued an initial decision granting the agency’s motion.
The appellant has filed a petition for review. Petition for Review (PFR) . She asserts that the administrative judge misstated her physical restrictions, did not consider the relevancy of the collective bargaining agreement, and erroneously found that the agency’s action was not arbitrary and capricious because she had been doing the same work since 2007. She further contends that the agency failed to search for work within a 50-mile radius and directed the offices to which it sent search requests to respond negatively
Although the initial decision states that “the agency submitted evidence that it searched for available work within the appellant’s medical restrictions in her commuting area,” it does not define the local commuting area relevant in the appellant’s restoration claim. Therefore, we are remanding the appeal for supplemental proceedings and issuance of a new initial decision. See Mubdi v. U.S. Postal Service, 114 M.S.P.R. 559, ¶ 12 (2010). On remand, the administrative judge shall oversee further development of the record by the parties on this issue, including an opportunity for discovery by the parties and a hearing. Id.; see Sanchez, 114 M.S.P.R. 345, ¶ 15; Sapp, 73 M.S.P.R. at 193-94 (remanding the appeal for further development of the record on what constituted the local commuting area and whether the agency’s job search properly encompassed that area). Read more
Postal Workers Sent Home Or Hours Reduced Under USPS NRP Can Apply For Unemployment
Injured employees who undergo the National Reassessment Process (NRP) and are told by the Postal Service either that there is only partial-day work available or that there is no work available, should consider applying for unemployment compensation. This temporary financial assistance can serve as an important monetary bridge during the time that an employee is waiting for his or her OWCP compensation to be processed.
This program is formally known as the Unemployment Compensation for Federal Employee’s Program, and is administered by the states under separate agreements with the U.S. Secretary of Labor. A Postal Service employee’s entitlement to this benefit is determined by each state’s employment security laws and varies according to the individual state rules and the employee’s wage and separation history.
An injured employee whose work hours have been reduced or eliminated by the NRP should ask the Postal Service to provide them with a Form SF 8, Notice to Former Employee About Unemployment Insurance. Don’t be misled by the phrase “former employee.” The SF 8 is also used for current employees who have had their work hours reduced or eliminated. The complete instructions can be found in Chapter 550, “Unemployment Compensation,” of the Employee and Labor Relations Manual.
Health and Resource Management personnel at Postal Service headquarters have assured us that the SF 8 will be made available to injured employees who receive “Partial Day Work” or “Complete Day No Work” letters. However, the employee must ask for the form. It will not be provided automatically.
Injured employees who are provided work on an intermittent basis are issued an SF 8 only for the first time in each calendar year when they are placed in a non-pay status. However, an SF 8 is issued each time to any employee who is, or will be, placed in a non-pay status for seven or more consecutive calendar days.
To facilitate the processing of a claim for unemployment compensation, an employee should take with them the SF 8; the most recent SF 50, Notification of Personnel Action; their Social Security card; W-2 form, and a recent pay stub showing earnings and leave balance.
OWCP will pay injured employees wage loss compensation even if they are receiving unemployment compensation. OWCP does not consider this situation to be a prohibited dual payment. However, virtually every state’s unemployment compensation regulations do consider this to be a dual payment, and would expect to be reimbursed for the unemployment compensation that was paid during the same period that a person received OWCP wage loss compensation.
note: Any Postal Employee can apply for unemployment if: “An individual whose work or tours of duty are on an intermittent basis is issued an SF 8 only the first time in each calendar year that he or she is placed in a nonpay status. [e.g. suspension of more than 7 days, PTF hours reduced..]
source: American Postal Workers Union
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