Appeals Court Sets Schedule For USPS Appeal Of PRC’s Denial Of Rate Increase
The U.S. Postal Service on October 22, 2010 appealed the Sept. 30 ruling of the Postal Regulatory Commission denying the Postal Service exigent price request.
According to court records:
The United States Postal Service hereby petitions this Court for review of Order Number 547 of the Postal Regulatory Commission (PRC), issued on September 30, 2010, which denied the Postal Service’s request for exigent rate adjustments. The United States Court of Appeals For the District Of Columbia Circuit has set a preliminary schedule for submitting documents.
FURTHER ORDERED that respondent submit the documents listed below by the dates indicated.
Entry of Appearance Form November 29, 2010
Procedural motions, if any November 29, 2010
Certified Index to the Record December 13, 2010
Dispositive Motions, if any (Original and 4 copies) December 13, 2010
It is FURTHER ORDERED that briefing in this case be deferred pending further order of the court.
Court: Postal Worker’s Vulgar Language is Sufficient Grounds for Removal
The U.S. Court of Appeals, Second Circuit, issued a startling decision on June 16, 2010, in Jeunes v. Potter. The Court upheld the removal of a postal employee who “admits that he used profanity during a verbal altercation with a co-worker on October 26, 2007, conduct clearly proscribed by the zero tolerance policy.” The Court based its decision upon Connecticut District’s version of the zero tolerance policy, which bans “any type of vulgar language which would lead to a hostile workplace.”
I respectfully disagree with the Court. The Connecticut District’s policy is an impermissively broad expansion of the Postal Service’s zero tolerance policy, originally set forth in the 1992 Joint Statement on Violence and Behavior in the Workplace. Due to a lack of consistency in the application of this policy, the Postal Service announced on May 24, 2007, in Postal Bulletin 22207, that it was “Clarifying the meaning of the Postal Service’s zero tolerance policy” in the revised Publication 108 Threat Assessment Team Guide. Vulgar language and profanity are not mentioned in either the Joint Statement or Publication 108.
Publication 108 states: “It is common for the term zero tolerance to be interpreted as resulting in a uniform and automatic response of dismissal for all reported incidents. Even though the meaning of zero tolerance is set out correctly in Postal Service policy, many employees focus on an absolutist interpretation without understanding the term in context….Discipline may be imposed, but it will be based on the nature and severity of the violation.”
Administrative Support Manual 315 prohibits subordinate organizational levels “clarifying,” supplementing (except as authorized in MI AS-310-78-3), or rewording policies or procedures from a higher level organization unless the instructions specifically direct or authorize this action. Postal districts that “clarify,” supplement or reword the national zero tolerance policy as expressed in the 1992 Joint Statement on Violence and Behavior in the Workplace should be challenged.
Don Cheney
Auburn WA
PUB 108 Threat Assessment Team Guide
1992 Joint Statement on Violence Read more
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