MSPB Issues Precedent-Setting Decision in NRP Cases

March 5, 2012 by · 4 Comments
Filed under: APWU, nrp, postal, postal news, usps 

Postal workers who were injured on the job won an important victory on Feb. 24, when the Merit Systems Protection Board (MSPB) issued a precedent-setting decision [PDF] in the case of James C. Latham et al v USPS. The ruling has important implications for postal workers who were affected by the Postal Service’s National Reassessment Process (NRP).

The MSPB decision affirms the Postal Service’s obligation to restore employees who have been injured on the job to any medically suitable work that is available, and affirms the MSPB’s jurisdiction over appeals involving that issue. Under the NRP program the Postal Service routinely reduced the work hours of injured employees who were working in modified assignments – or eliminated their work hours entirely.

“The MSPB ruling gives a well-deserved slap in the face to the Postal Service for its heartless mistreatment of injured workers,” said Sue Carney, APWU Human Relations director. “The Board’s decision opens the flood gates for injured workers who were improperly denied work to receive justice through MSPB.”

Restoration

The Federal Employees’ Compensation Act (FECA) says that federal employees who suffer compensable injuries enjoy certain rights to be “restored” to their previous positions or to comparable positions.

Prior to this landmark ruling, however, no MSPB judge had found that a reduction in work-hours or the elimination of work under the NRP program violated an employee’s restoration rights. Of the dozens of previous appeals, every case was rejected, either on jurisdictional grounds or because the Postal Service’s actions were not deemed “arbitrary and capricious.”

The appellants in the Latham cases were working in modified assignments as a result of job-related disabilities when the Postal Service implemented the NRP program and withdrew the assignments. These employees were told there were no “operationally necessary” tasks for them to perform and were directed to take leave. They were instructed not to report for duty until they were informed that medically suitable work was available.

Each of the displaced workers filed an MSPB appeal and requested a hearing. They asserted they were denied “restoration” following their injuries and claimed their modified assignments were still available. They argued that the agency, by discontinuing their modified assignments, had violated the Employee and Labor Relations Manual (ELM) and committed various “prohibited personnel practices.”

The appellants alleged that their former duties were being performed by other employees and that the agency was guilty of disability discrimination. They asked the board to order the Postal Service to return them to their modified assignments with back pay.

Jurisdiction

In order to establish Board jurisdiction over a restoration appeal, an appellant must prove by preponderant evidence that:

(1) He was absent from his position due to a compensable injury;

(2) He recovered sufficiently to return to duty on a part-time basis or to return to work in a position with less demanding physical requirements than those previously required;

(3) The agency denied a request for restoration; and

(4) The agency’s denial was “arbitrary and capricious.”

It was undisputed that the Latham appellants satisfied the first three jurisdictional elements, leaving them to prove that the denials of restoration were arbitrary and capricious. Resolving that issue required MSPB to first address whether the Board’s jurisdiction under Title 5 may encompass a claim that an agency’s violation of its internal rules resulted in an arbitrary and capricious denial of restoration.

The board consolidated the appeals and asked the parties to address how the Postal Service acted in an arbitrary and capricious manner and to explain the agency’s restoration obligations.

Arbitrary and Capricious

In response, the appellants and several “friends of the court” stressed that the USPS had acted arbitrarily and capriciously when it failed to follow its own rules. They maintained that the Postal Service’s handbook and manual commanded the USPS to provide partially recovered individuals with any available work within their medical restrictions, although they generally conceded the agency is not required to provide “make work.”

FECA provides that federal employees who suffer compensable injuries enjoy certain rights to be restored to their previous or comparable positions. Congress has explicitly granted the Office of Personnel Management (OPM) the authority to issue regulations governing agencies’ obligations in this regard. Pursuant to this authority, OPM has issued regulations requiring agencies to make certain efforts toward restoring compensably injured individuals to duty, depending on the timing and extent of their recovery. OPM’s regulations require at minimum that agencies “make every effort to restore partially recovered individuals in the local commuting area.” At a minimum, this would mean treating these employees substantially the same as other individuals with disabilities under the Rehabilitation Act of 1973, as amended.

The Postal Service argued that OPM regulations governing the restoration of partially recovered individuals were beyond OPM’s power and therefore invalid. The USPS said the statute authorizing OPM to issue the regulations, 5 U.S.C. § 8151(b), provides restoration rights only to fully recovered individuals. The Postal Service also asserted that the statute provides only for restoration to work that comprises the “essential functions of an established position.”

Follow the Rules

Concluding that the issues presented in the appeals directly concerned the interpretation of a regulation issued by OPM, the board requested an advisory opinion from OPM. OPM said agencies are required to “meticulously follow their own rules,” and said an agency’s failure to follow its own rules concerning the restoration of a partially-recovered individual would be arbitrary and capricious — even when the rules go beyond the minimum restoration obligation set forth in Section 353.301(d).

The MSPB ruled that OPM’s interpretation was “controlling,” and concluded that the Postal Service’s alleged failure to adhere to its own regulations could be the basis for establishing MSPB jurisdiction.

The board also concluded that the Postal Service has a legal obligation to employees with job-related disabilities and is required, pursuant to ELM § 546 and EL-505, Chapters 7 and 11, to restore partially-recovered individuals to duty in whatever tasks are available, regardless of whether those tasks comprise the essential functions of an established position.

Signals for Future Appeals

The decision also signals the line of inquiry the board will use as the framework to analyze appeals. “This information will serve appellants well,” Carney said.

Advocates should be prepared to prove:

(1) Are the tasks of the appellant’s former modified assignment still being performed by other employees?

(2) If so, did those employees lack sufficient work prior to absorbing the appellant’s modified duties?

(3) If so, did the reassignment of that work violate any other law, rule, or regulation?

MSPB cautioned that evidence pertaining to general declines in mail volume and displacement of non-injured workers will likely be immaterial in the absence of a connection between these matters and the availability of the appellant’s former job duties or the duties of the employees who absorbed the appellant’s former tasks.

The board also emphasized that it will not examine whether the agency followed the “pecking order” or minimized “any adverse or disruptive impact” in assigning modified duties as set forth at ELM § 546.142(a). The board reasoned these matters pertain to the circumstances of restoration that were actually accomplished, and are therefore outside the Board’s jurisdiction. The Board clearly stated that it is only concerned with whether the agency actually denied an appellant restoration following partial recovery from a compensable injury and whether that denial was arbitrary and capricious.

Throughout its analysis the Board cited statutory history, emphasizing the rights of partially-recovered and fully-recover recovered employees and underscoring that injured or disabled federal employees — including employees of Postal Service — must be treated in a fair and equitable manner. The Board stated it believed its actions served the individuals the statutes were intended to protect.

Tools Available

Since the onset of NRP, the APWU Human Relations Department has counseled affected members who were unable to hire an attorney to file MSPB appeals as compensationers, making the same arguments as those proven effective in Latham. (A template for filing MSPB appeals has been posted on the APWU department’s National Reassessment Process Web page since 2009.)

The guide does not replace legal advice, Carney said, and she noted that the board often orders the offending agency to pay the legal fees of successful appellants.

“It is important for appellants to understand they have the burden to prove, not just assert, their claims,” she added.

“Although the USPS maintains that it terminated the NRP program, the Postal Service has continued its ill-fated practices,” Carney observed.

“The guide is a practical tool for compensationers whose work hours have since been reduced or eliminated. Appellants may also find the review of precedential and non-precedential MSPB NRP rulings educational.” The decisions can be found by visiting www.mspb.gov and searching keywords: NRP or USPS denial of restoration.

 

MSPB Issues Precedent-Setting Decision in NRP Cases.

MSPB Issues Decision In Postal Employees NRP Cases

February 27, 2012 by · 6 Comments
Filed under: mspb, nrp, postal news, usps 

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.

Here are excerpts from the 73-page MSPB decision surrounding NRP cases of five Postal Employees (James C. Latham, Ruby N. Turner, Arleather Reaves, Cynthia E. Lundy, and Marcella Albright). I have sanitized portions of the decision for easier reading. Some of the paragraphs may be out of sequence:

These appeals present the question of whether the agency’s own internal rules regarding the return to duty in modified assignments of compensably injured individuals are enforceable by the Board in a restoration appeal under 5 C.F.R. § 353.304(c). For the reasons set forth below, we answer in the affirmative. Read more

MSPB to Hear Oral Arguments in NRP Appeals On December 13th

November 29, 2011 by · 10 Comments
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

August 8, 2011 by · 17 Comments
Filed under: nrp, postal, postal news, 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

August 8, 2011 by · 6 Comments
Filed under: Injured On Duty, nrp, postal, postal news, usps 

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

August 6, 2011 by · Comments Off
Filed under: Injured On Duty, nrp, postal, postal news, usps 

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

June 24, 2011 by · 10 Comments
Filed under: nrp, postal, postal news, usps 

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?

June 13, 2011 by · 8 Comments
Filed under: Articles, nrp, owcp, postal, postal news, usps 

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

December 20, 2010 by · 1 Comment
Filed under: APWU, nrp 

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.

Dowload PDF version of letter

Editorial: 10 Tips to Remember When Filing for Postal Disability Retirement Benefits

November 6, 2010 by · 2 Comments
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

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