Compensation: Grieving Limited Duty Violations

A NEWSLETTER FOR BRANCH LEADERS OF THE NATIONAL ASSOCIATION OF LETTER CARRIERS VOL. 22, NO. 3 November 2009

Compensation: Grieving limited duty violations

anagement’s National Reas- tour three when the injured carrier Changes to limited-duty job sessment Program (NRP) con- could have worked eight hours on offer(s). M tinues to spread to more dis- his/her regular schedule. Withdrawal(s) of limited duty. tricts throughout the country. As it While no article can cover all of does, more and more injured carriers the intricacies that will arise during 3. Current and recent Form 50s for are either improperly denied limited the development and processing of the grievant. duty or have their limited duty job a limited-duty grievance, the fol- 4. Grievant’s bid assignment to offers withdrawn. In other cases, lim- lowing discussion will cover most prove his/her regular schedule and ited duty is provided but in violation of the foundational elements needed work station on date of injury; of the pecking order in ELM 546. to produce a strong grievance file. TACs records may also be useful The two major types of limited duty for this purpose. violations thus can be identified as: 1) Denial and Withdrawal violations Include this fundamental (Continued on page 8) and 2) Pecking Order violations. evidence in all limited Denial and Withdrawal violations occur when limited duty is duty grievances: INSIDE available but not offered, and/or 1. Proof that the grievant is entitled when limited duty is improperly to limited duty: withdrawn. OWCP letter accepting the The Truth about GPS in grievant’s on-the-job-injury Pecking Order violations occur Postal Vehicles ...... 2 when management provides limited claim. duty, but does not attempt to mini- Grievant’s Form CA-17 which Assignment of New mize the adverse impact on the in- indicates the grievant is able to Deliveries ...... 4 jured carrier. An example would be if perform limited duty; prior limited duty is provided at another CA-17s may also be needed to The Interview...... 6 station when it was available at the establish the history and possi- carrier’s bid station. ble changes in the grievant’s medical restrictions. Transitional Employees: Some cases could involve a com- Separation and Lack of bination of a Pecking Order violation 2. All correspondence concerning and a Denial violation. Example: four limited duty job offers: Work ...... 10 hours of limited duty is offered on 1 NALC ACTIVIST November 2009

The truth about GPS in postal vehicles

he Postal Service’s decision country including in some of the the pending installations of GPS whether or not to place new T-3, three-wheeled vehicles. units. (See box on page 3 for a list T Global Position System Further expansion occurred in April of the affected stations.) 2009 when GPS was placed in [GPS] devices in postal vehicles While Postal Service headquar- postal vehicles in other areas of Illi- and/or in scanners has been gener- ters has notified NALC headquar- nois and in areas of Arizona. ating great interest in carriers for ters which Postal Stations will have some time. The latest rumors go- GPS devices installed in postal ve- ing around—that the postal GPS National level hicles and, in turn, the NALC has devices have a seat detector which communicated this information to can tell when the vehicle driver discussions all National Business Agents left the driver’s seat or that there There have been many discus- [NBAs], the first thing that letter were hidden cameras in the GPS sions at the national level regarding carriers need to remember about devices or that postal scanners GPS since implementation began. this is that the Postal Service has [IMDs] contained GPS capabil- As part of these discussions the par- agreed that “ city letter carriers ity—simply are not true. ties addressed the issue of covert working in delivery units where Late in 2008, GPS devices surveillance. In a letter dated May GPS devices are installed will be were placed in postal vehicles in 18, 2009 (M-01705), the Postal Ser- advised in advance of the instal- Chicago, Illinois, with the Albu- vice stated that “city letter carriers lation and the vehicles receiving querque District following suit working in delivery units where GPS devices” (emphasis added). soon after. In early January 2009 GPS devices are installed will be advised in advance of the If you become aware that GPS installation and the vehi- devices are being installed in postal cles receiving GPS de- vehicles in your office without no- vices.” The same letter tification to the carriers of their also stated that “Currently, existence and exactly which vehi- there is no nationwide implementation plan of GPS devices.” In further meet- ings with the Postal Ser- vice the NALC was told that the service was not finding any return on their A NEWSLETTER FOR BRANCH LEADERS OF THE investment and that there NATIONAL ASSOCIATION OF LETTER CARRIERS were no plans to expand VOL. 22 NO. 3 November 2009 further. Published three times annually by: Some postal vehicles across the country have been Fast forward to Fall fitted with GPS systems. 2009. The Postal Service National Association of Letter Carriers 100 Indiana Avenue, NW switched gears and Washington, D.C. 20001-2144 the Postal Service expanded GPS planned to place more than 4,200 implementation and deployed ad- additional units throughout the Fredric Rolando, President ditional GPS devices in the Dallas, country. Expansion of GPS is a Houston, San Antonio, Arkansas, topic of further discussion at the Louisiana, Oklahoma, and Fort national level. Worth Districts. By February of 2009 there was a total of 611 GPS In September 2009 the NALC at units deployed throughout the the national level was notified of

2 NALC ACTIVIST November 2009

cles they are being installed in, immediately contact your steward or Announced GPS Sites branch officer and request that he/she immediately contact the NY Metro Area Southwest Area NBA. The NBAs have been asked Triboro 50 Houston 100 to expeditiously forward such infor- Oklahoma 50 mation to the NALC’s Director of Caribbean 50 City Delivery. New York 50 Rio Grande 50 Long Island 100 Louisiana 100 So what should carriers know Westchester 50 Arkansas 50 about the GPS units and how they Fort Worth 40 function? One or two supervisors in Northern NJ 200 each of the offices that use the de- Dallas 40 vice plus an administrative person in Northeast Area Albuquerque 9 each District and Area should be Boston 140 trained on the system. A supervisor Southeastern NE 70 Southeast Area or manager doesn’t have to sit by a Maine 50 Atlanta 250 computer to watch little dots on a South Florida 250 screen to know what is going on. Connecticut 130 Tennessee 250 An activity report has the capability Albany 40 to depict the geographically specific Western NY 70 location, idle time, speed and direc- Great Lakes Area tion of movement, all time specific, Eastern Area Greater Indiana 250 of the vehicle with the GPS device, Central PA 500 Southeast Michigan 36 which is tracked throughout the Detroit 60 day. Pacific Area Greater Michigan 60 In addition to the activity report, Los Angeles 100 Lakeland 50 the designated supervisor can pull Northern Illinois 35 up any vehicle in the office and find Santa Ana 100 Sierra Coastal 100 Central Illinois 50 that vehicle’s activity for the day Gateway 26 from any internet access. The Bay Valley 50 screen will show everything that Sacramento 50 happened that day including any San Diego 50 Cap Metro Area time the vehicle sat idle for an ex- San Francisco 50 Baltimore 100 tended period of time. It will show Greater SC 10 the supervisor any park points with a Capital 300 clock showing the length of time the Richmond 40 vehicle was stopped there in 15 minute increments. This information is available for six months and then archived for an additional six years. Post Office if the vehicle goes out- traveled and even set to show if a side a specific boundary. That vehicle went over a certain limit What supervisors will boundary can be a route, a zip code, programmed into the device. or maybe an entire city. Maybe a Vehicle ignition off or on - The know particular carrier was instructed that unit will show when the ignition is What else can the GPS unit tell his home was not an authorized off and when it is on. Is the vehicle your supervisor besides where the lunch location. The electronic running or is the ignition off when vehicle is at a particular time? fence could be set up to show if the sitting in one place? If the vehicle Several options can be programmed carrier’s vehicle drove by the car- is sitting in one place with the vehi- into each GPS unit. For example: rier’s home. cle running for an extended period of time the report will show this. Electronic Fence - The unit can Speed Limit - The unit can be be set to document and notify the set up to show the speed the vehicle (Continued on page 14) 3 NALC ACTIVIST November 2009

Letter carrier craft and the Assignment of new deliveries

ll new delivery of mail is as- Rural Letter Carrier’s Asso- the National Business Agent signed to city letter carrier ciation. may directly refer the matter to A craft delivery. That is the re- a national level task force. The Absent such agreement, task force will consist of two sult of the Assignment of City Deliv- the city letter carrier craft ery Memorandum of Understanding members appointed by the will be assigned all new Postal Service Vice President dated October 22, 2008 (M-01694). growth (i.e., new deliveries Labor Relations, and two mem- Specifically, the memo states in that are not in-growth on an bers appointed by the Presi- part: existing route assigned to an- dent of the NALC. The task other form of delivery), sub- force will promptly determine In offices with both city and ject to the following. The whether assignment of such rural delivery, new deliveries Postal Service may assign deliveries to the city letter car- will be assigned in keeping new growth to another form rier craft will result in ineffi- with the following of delivery only if assigning ciencies. the work to the city letter car- Growth will be assigned in rier craft would result in inef- accordance with boundaries ficiencies. In such case, the that have been established by Local leaders’ role appropriate NALC National agreement of the Postal Ser- Since the National Business Business Agent must be pro- vice, National Association of Agent is notified if the Postal Ser- vided notice. If the union dis- Letter Carriers, and National vice assigns new deliveries to an- agrees with such assignment,

Fig. 1. NALC Assignment of New Deliveries Alert

4 NALC ACTIVIST November 2009

other form of delivery, is there Fig. 2. USPS Address Management System New Delivery Report any need for local branch leaders to monitor new deliveries? The answer is, YES! While the simple answer is yes, the local follow-up requires a little more explanation. First, the memo states that when new deliveries are assigned to a form of delivery other than city delivery, the NBA is supposed to be notified. Don’t assume this will hap- pen. With thousands of new deliveries added each year, presumably some deliveries may be assigned in error. However, just because we assume errors may occur does not imply those errors are accept- able or tolerated. All new delivery assignments must be monitored. As a local branch activist you should help keep tabs on new deliveries. Former President Young sent a letter to every branch president in reported by the New Delivery Alert the country requesting that any- —coupled with the reduction in worksheet is far below the actual time new deliveries are assigned mail volume has seen the loss in the number of deliveries established in any delivery unit the National total number of city delivery routes. since the signing of the memo. Ab- Business Agent be notified. Ac- The assignment of new deliveries to sent local reporting it is more than companying the February letter city delivery will add to the total difficult to pinpoint violations of was a worksheet to be used to no- number of city delivery routes na- the memo. Local reporting of new tify the NBA of the new ad- tion-wide. In other words, any loss deliveries is the best way for dresses—NALC Assignment of of routes due to IARAP/MIARAP NALC to monitor the assignments New Delivery Alert (Fig. 1). The should certainly be more than offset and enforce compliance of the request makes clear that it is im- by the gains of the new deliveries memo. perative we keep track of all new assignments. delivery. Regrettably, the simple fact of Why is there such an impera- the matter is that we are not doing Reporting new tive to keep track of new deliver- as good a job of reporting new de- deliveries ies? M-01694, Assignment of City liveries as we should. At NALC headquarters, the Information Tech- No finger pointing, no criticism Delivery is linked to M-01695, and no complaints, but we must do Memorandum of Understanding, nology department has been tasked with building a system to track new a better job of reporting new deliv- Re: Interim Alternate Route Ad- ery points. Each branch should be justment Process from which the deliveries. As the NBAs receive completed New Delivery Alert requesting information about new MIARAP process evolved. When deliveries in order to accurately the parties agreed to the alternate worksheets, they enter the data into the tracking system. Unfortunately, complete the New Delivery Alert route adjustment process the par- worksheet and provide updated ties also agreed to assign all new the number of new deliveries in the system is far below the number of alert worksheets whenever addi- deliveries to city delivery. The tional new deliveries are assigned. streamlining of the route adjust- new delivery points projected. In- ment process—IARAP /MIARAP deed the number of new deliveries (Continued on page 13)

5 • NALC ACTIVIST STEWARDS’ November 2009 e Corner

The backbone of a successful grievance . . . The interview

carrier in your office has General Rules questions that allow the witness to approached you and said he Let’s start with an overview of clarify and fill in facts. When you A has just been told to report ask yes or no questions, often that some general rules. Number one is to the supervisor’s office for an listening. The key to a good inter- is all you will get in return. For interview. He believes that the view is listening to what a person example, if you simply ask the interview could lead to discipline. has to say. The best grievant if they abused their sick What do you do? First off, you’ve way to get to the leave, they will say no. How has caught a break. Most grievants that helped you? Obviously it has- when asked to report for an inves- n’t. If however you ask what medi- tigative interview, think they can cal problems they have, you are talk their way out of it. Therefore, likely to get a lot more informa- at that critical first step, they The key to a tion. It is also good to periodically don’t ask for Union representa- repeat answers back to the witness tion. But since you have the op- good interview to insure that what you have writ- portunity to be part of the inter- ten down accurately reflects the view with the grievant, take full witnesses statements. advantage of your rights. is listening to what a person Always supportive Pre-interview meeting During the interview, it’s okay Ask for time for a pre- has to say. to be supportive, but don’t make interview meeting with the griev- promises you may not be able to ant. Your pre-interview with the keep. If they ask you if you will be grievant should be private, just able to get their job back? Don’t you and the grievant. Weingarten tell them you will, better to tell gives that right. If management them you will do everything you refuses you time, make that a part facts is by being a can to get them back to work. And of your due process arguments in good listener. Be relaxed when you if they ask you a question to which the grievance file. The pre- do your interviews. A grievant you don’t know the answer, tell interview will give you time to who is facing discipline is already them you will find out and get understand what the management upset, so you need to diffuse that back to them. Don’t guess and give interview is likely to be about. It to the extent that you can. Control them bad information. will also give you time to strate- your feelings. Do not get caught up Back to the interview. Use the gize and clarify what the grievant in the emotions that are already NOR as your roadmap to start. Ask should and should not say during there. As you discuss the various about the cited dates in the NOR the interview. issues, keep notes of the important and why the grievant used the sick things that are discussed. This As it turns out, the pre- leave, emergency annual and/or should include a list of any addi- disciplinary interview concerned was AWOL. Ask if there was an tional potential witnesses. attendance, and management has underlying medical condition that now issued the grievant a Notice Show the grievant that you are could allow for an FMLA defense, of Removal (NOR) for Irregular interested and want to get all the or a drug or alcohol problem that Attendance. So where do you information out. Ask open-ended could lead to an EAP defense. start? 6 NALC ACTIVIST November 2009

The bottom line, once you en- Your interviews should continue you have developed from your gage a witness in an interview, let as the facts lead you. For example, early interviews lead you. And the conversation be natural while if you find that the grievant had a don’t be surprised if you have to at the same time you direct the serious medical condition and that interview a witness more than one conversation to elicit the informa- he had requested FMLA protected time. The grievant especially will tion and answers you need. Don’t, leave and it was denied, you may require an additional interview af- however, miss opportunities when want to interview the FMLA Coor- ter more facts have been developed surprises occur to follow up those dinator. Based on reasonableness, and additional questions naturally leads for additional information. you should be able to interview the flow from the information you The information you gather from FMLA Coordinator at his/her of- have gathered. the grievant will lead to your next fice. “Reasonableness” means, for interviews. This is also your op- example, if the FMLA Coordinator portunity to ask the grievant to works in close prox- Contract cases provide you with documentation imity to your office, Contract cases are not signifi- that he should have. cantly different when interviewing witnesses. Start with the grievant and work from there. Supervisor Interview the interviews are often even more supervisor Your interview important in contract cases than in discipline cases. supervisors often Your next likely interview will have the kind of knowledge that be the supervisor that issued the should always may be critical. For example, in a discipline. Article 17, Section 3 simple Article 8 bypass case, the states in relevant part, “and shall follow where supervisor will normally know have the right to interview the ag- why certain individuals were grieved employee(s), supervisors, the facts lead. worked while others weren’t. The and witnesses during working supervisor will know a lot concern- hours.” So you have the right to ing the scheduling of employees. interview supervisors. Take advantage of that right. The issuing su- A person skilled at interviewing pervisor should be questioned witnesses may turn a poor case about what information they con- into a good case just by the infor- sulted, why they issued the disci- you should get a face to mation obtained from managers. pline, who they obtained concur- face meeting. If, Often we do not interview supervi- rence from, and what documenta- however, the FMLA Coordinator sors in the grievance procedure and tion they shared with the concur- works in a distant location, a tele- that allows them time to formulate ring official. phone interview would be appropri- their position. ate. This interview should be fol- Good interviews are the back- lowed up with an interview of the bone of any grievance. Without concurring official. Determine Other witnesses solid information, the best case what documentation the concurring There are other potential wit- will wither and die on the vine. official was provided and what nesses you may need to interview. rationale was used in concurring. Sometimes clarification of medical Again, let the answers to your information from the grievant’s Please update your mailing questions lead you to follow up physician or nurse is needed. In information! questions. Once you have com- most cases the grievant will have to pleted your interview with the su- provide you with a release. Without Remember to fill out and return pervisor, you should immediately that the doctor is not likely to speak attempt to interview the concurring to you. the enclosed form, so that you official to see if that story matches can continue to receive the These are simply examples of the one given to you by the imme- Activist. how a typical case might go. As diate supervisor. already stated, let the information

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Grieving limited duty violations found in Articles 5, 13, 14.3.c, (Continued from page 1) The NRP Tracking Sheet— 15.1, 19, and/or 21.4 of the Na- Rehabilitation Employees tional Agreement/JCAM, and/or Show limited duty ELM Section 546.14, and/or Sec- NRP Tracking Sheet—Sent tions 2, 4, 7and/or 11 of the EL-505 exists with the Home, No Job Offer, NRP when management *failed to pro- NWA (No Work Available) following evidence: vide limited-duty work for the Employees 1. Signed statements by the grievant? If yes, what is the appro- grievant and other witnesses that priate remedy? detail available duties for possible What are the issues and Whether management violated limited-duty assignments how should they be applicable laws as covered by Arti- If the case involves a with- framed? cles 2.1, 5, 14.3.c, 15.1, 19, and/or drawal of limited duty, provide 21.4 of the National Agree- The issue statement in Denial statements that detail the actual ment/JCAM, and/or the Rehabilita- and Withdrawal cases should be work that the grievant was per- tion Act, and/or the Code of Fed- framed in two parts for each griev- forming. eral Regulations (5CFR353), ance. This two-part issue statement and/or Sections 13 and/or 54 of the Explain all special accommoda- clearly identifies management’s EL-307, when management *failed tions that had been made in the contractual and legal obligations. to provide limited duty work for the past. Here is an example: grievant? If yes, what is the appro- Provide statements and other Whether management violated priate remedy? evidence that indicate who per- applicable contractual provisions *In withdrawal of limited duty formed the work after it was grievances the phrase withdrawn from the claimant. “withdrew limited-duty (Consider including TACs work from” will be substi- reports). tuted for “failed to provide 2. Historical data like TACs limited-duty work for” in reports and delayed mail re- the issue statement. ports that help establish proof In cases that only involve of available work that can be Pecking Order violations part of limited-duty assign- only part 1 of the example ment issue statement would nor- 3. Any other evidence needed mally be used. to counter management’s arguments; if the grievance Union contentions is NRP related, secure the following information from man- in limited duty agement: grievances The grievant’s entire The union’s arguments in “NRP Activity file,” limited duty grievances also referred to as the have many facets that “shadow file” should be fully researched and developed to the maxi- The grievant’s “Current mum extent possible in Modification Assign- each case. Making the ment/Position Work- right arguments is vitally sheet” NALC’s Withdrawal or Failure to Provide Limited important, but the argu- The NRP Tracking Duty: Guide to NRP provides valuable information on ments may not stand on Sheet—Limited Duty this complex subject. It can be found on the NALC web their own. Ideally they Employees site. should be supported by 8 NALC ACTIVIST November 2009

documented evidence or witness creation of duty assignments was be management denying work to a statements. based on “the Postal Service’s le- carrier because his/her restrictions gal, contractual and regulatory permit only four hours of work per A snapshot of some union argu- obligation to reassign or reemploy day. ments follows, but keep in mind all an employee who is injured on the of these arguments may not apply job. This assignment did not exist Argument 8: 5CFR353.301.d to certain types of limited duty before the employee was injured states that the agency must “make grievances. and otherwise would not have been every effort to restore” injured workers who are able to return to Argument 1: The National created by management, because limited duty and also states that they Reassessment Process (NRP) has no need for an Article 37 duty as- will be treated substantially the changed nothing. Management’s signment existed.” (C-23472 is same as other handicapped indi- obligations under the ELM, the printed in the NALC Guide to viduals covered by the Rehabilita- JCAM, and the law have not NRP.) tion Act. (The Rehabilitation Act changed. This is a primary argu- Argument 4: Limited duty applies the regulatory standards of ment that should be found in every work within the grievant’s medical the Americans with Disabilities Act limited duty grievance. The national restrictions exists, or in cases of as amended in 2008.) Include a parties recently agreed that NRP withdrawals of limited duty, still copy of EL-307.132 in your file. does not change management’s ob- exists. ligations to provide limited duty to Some limited duty carriers, injured employees and it does not Provide all available evidence based on their medical restrictions, change the provisions of ELM 546. that supports this argument. Ideally will qualify for reasonable accom- the evidence will demonstrate two modations under the Rehabilitation In that same agreement, the par- things: 1. the limited duty work is Act. In such cases, management’s ties agreed that NRP does not create available, and 2. the limited duty is failure to provide reasonable ac- new criteria for assigning limited within the grievant’s medical re- commodations to those qualified duty and that light duty carriers will strictions. carriers should also be argued in not normally be displaced solely to their grievance. make new limited duty or rehabili- Argument 5: Address and tation assignments unless required argue the specifics of the griev- by law. A copy of this national ant’s case. Don’t apply a one-size- Requested remedies level pre-arbitration agreement fits-all approach to any grievance, For Denial and Withdrawal should be added to every limited- but especially limited duty griev- cases the requested remedy should duty grievance file. (M-01706 is ances. The medical restrictions of include: 1) immediately provide available online at http://nalc.org/ injured workers are rarely the limited duty to the grievant; 2) depart/cau/index.html) Do not al- same, and available limited duty make the grievant whole for all lost low management the opportunity to work will vary based on the indi- wages and benefits, including but paint NRP as some kind of replace- vidual’s medical restrictions. not limited to lost wages, lost an- ment for all of their other obliga- nual leave, lost sick leave, lost TSP tions to provide limited duty. Argument 6: If management failed to allow the grievant to have benefits, and lost overtime pay. 3) Argument 2: The USPS has input or participation regarding the any other remedy deemed appropri- both a contractual and legal obli- search for limited duty, that viola- ate by the parties or an arbitrator. gation to make every effort to pro- tion should also be included. Refer For Pecking Order cases the vide limited duty. to sections 223 and 223.1 of the requested remedy should include: 1) EL-307, which describes the re- cease and desist violations of ELM Argument 3: Management has quired interactive process. a long-standing history of providing 546 and immediately provide lim- limited-duty work to injured em- Argument 7: Argue the appli- ited duty to the grievant; 2) pay the ployees. For about 30 years, the cability of M-01550. This would travel time and mileage (If applica- USPS has met its obligation to pro- apply, for example, if management ble); 3) pay the grievant an addi- vide limited duty for about 30 years sends an injured carrier home cit- tional 50% for all hours worked by creating duty assignments. ing “no work available” because during and/or because of the 546 he/she is capable of casing, but not violation. In national arbitration case C- carrying. Another example would 23472, management argued that (Continued on page 14) 9 NALC ACTIVIST your November 2009 contract Transitional employees . . . Separation and lack of work

ransitional Employees (TE) 16 which allow management to ing. It is clear that a T.E. can are hired as Not To Exceed separate TEs “upon completion of be separated due to lack of T (NTE) Employees for 360 their assignment” which is normally work, and, if this is the real days. Normally TEs work the en- considered completion of the 360 reason for the separation, it tire 360 day period and then man- day period. The sentence continues cannot be grieved. However, it can be grieved, if this is a pre- agement has the option of re- “or for lack of work” and that has hiring the TE for another 360 textual reason, or, in other created great consternation in the words, a false reason given to days. As the language quoted be- grievance procedure in determining hide the real reason. This low shows, Article 7, Section exactly what “lack of work” means, would mean, if it was pretex- 1.B.4 lays out the length of term and showing that management by tual, it was not due to lack of for which TEs are hired. releasing a TE short of the 360 days work. Consequently, the em- has improperly separated them. ployee could not be terminated. Thus, the pretextual issue is Article 7 Employee The second sentence clarifies the Classifications both an arbitrable issue and a issue of a TE who has completed a merits issue.... Section 1. Definition and Use 360 day assignment. The sentence says “Such separation is not griev- B. Transitional Work able except where the separation is Is the case arbitrable? Force pretextual.” So we know that most The first obstacle to overcome is The transitional work force separations either for completion of management’s likely claim that any shall be comprised of noncareer, assignment or for lack of work are grievance is not arbitrable. So when bargaining unit employees as not grievable unless the separation management releases a TE for lack follows: is pretextual. of work, the union must claim that in fact work was available. So once 4. Transitional employees you’ve shown that there was work shall be hired pursuant to such Pretextual for the TE, we win right? No, in fact procedures as the Employer may But what does “pretextual” the road to victory is far more establish. They will be hired for mean? Black’s Law Dictionary de- treacherous. As Arbitrator Williams a term not to exceed 360 calen- fines pretext as “ostensible reason stated, once we claim that work was dar days for each appointment. or motive assigned or assumed as a available, we simply made the case Transitional employees will color or cover for the real reason or arbitrable. have a break in Service of at motive; false appearance; pretense.” least 5 days between appoint- So when management releases a TE So what must we prove to pre- ments. in of the middle of their term for vail? Let’s look at a recent arbitra- lack of work, the union has several tion decision and see what hap- hurdles to clear. pened and what if anything we might have done to change the out- In addition, the National par- Arbitrator J. Earl Williams gives ties signed a Memorandum of come. In Case No. H06N-4H-D probably the best explanation of 08353145 (C-28404) Arbitrator Understanding (MOU) on TEs “pretextual” and how it applies in (see box on page 11). Lawrence Roberts considered the the grievance procedure. In Case case of two TEs who were sepa- No. E90N-4E-C 94056306 (C- rated from work on 8/15/08 ostensi- Completion of 14680) Arbitrator Williams states: bly for lack of work. Neither TE had any disciplinary charges pend- assignment The language of Section 7 of the National T.E. Award ing and both were released prior to The key to our discussion is completion of 360 days of service. the first two sentences in Article tends to be somewhat confus- 10 NALC ACTIVIST November 2009

MEMORANDUM OF UNDERSTANDING cline in mail volume. The union BETWEEN THE attempted to refute that claim with a UNITED STATES POSTAL SERVICE January workload report that indi- AND THE cated greater workloads at least NATIONAL ASSOCIATION OF LETTER CARRIERS, 70% of the time. The Arbitrator re- AFL-CIO lied on the Weekly Flash Reports for the entire period, and found that Re: Transitional Employees-Additional Provisions the evidence supported management’s claim that in fact the work- ARTICLE 16 load had declined. Ultimately the Transitional employees may be separated at any Arbitrator found that the installation time upon completion of their assignment or for lack was using more man hours for less of work. Such separation is not grievable except mail volume than during the previ- where the separation is pretextual. Transitional em- ous year. ployees may otherwise be removed for just cause An additional argument made by and any such removal will be subject to the griev- the union was that overtime re- ance-arbitration procedure, provided the employee mained virtually the same after the has completed ninety (90) work days, or has been separation of the TEs. In response, employed for 120 calendar days, whichever comes the USPS argued that overtime had already significantly decreased prior first. Further, in any such grievance, the concept of to the separation of the TEs. In ad- progressive discipline will not apply. The issue will dition, management argued that be whether the employee is guilty of the charge they had a spike in the delay of mail against him or her. Where the employee is found dispatched to the installation. The guilty, the arbitrator shall not have the authority to Arbitrator found that in fact lack of modify the discharge. In the case of removal for work was the only reason for the cause, a transitional employee shall be entitled to separation of the TEs. Based on his advance written notice of the charges against him/ finding, the Arbitrator found the case not arbitrable. Given the lan- her in accordance with the provisions of Article 16 guage in the TE Memo the Arbitra- of the National Agreement. tor’s non-arbitrability finding was appropriate. However, remember that unlike the case where an arbitrator rules on arbitrability without The USPS argued that the case ees were issued a Notice of Separa- looking at the merits, in the instant was not arbitrable since the TEs tion from the USPS. The Arbitrator case the Arbitrator first ruled on the were released for lack of work, ultimately found that the while the merits, and not finding for the Un- and the union argued that the rea- TEs were issued Separation No- ion, ruled on the arbitrability. son for the separations was pre- tices, there was no misconduct and textual, therefore the case was no actual discipline. That was an arbitrable. In part, management appropriate finding since these Documentation is key argued that the decline in mail cases are normally considered to be So what can we glean from the volume has led to the determina- contractual. Therefore the burden is Roberts award? Above all, docu- tion that continued use of TEs is on the NALC to prove that lack of mentation rules! The union needs no longer warranted. mail was not the reason for the strong documentation that leads separation of the TEs. only to the conclusion that work At the onset of the hearing remains for the TEs. But showing there was a dispute as to whether that work remains for the TEs is not or not the separation of the em- Decline in mail volume in itself sufficient. In Case No. ployees was considered disci- Based on the testimony of the F90N-4F-C 95055763 C-20528), pline. The union believed it was Postmaster and the use of Flash Re- disciplinary because the employ- ports, the USPS claimed a 29% de- (Continued on page 12) 11 NALC ACTIVIST November 2009

Transitional employees employee’s performance was not may carry the burden. But simply (Continued from page 11) satisfactory. Arbitrator Shea showing hours of work and over- Arbitrator William Eaton denied found that this argument would be time may not carry the day. If evi- the union’s case involving the compelling if the union had dence exists of residual vacancies separation of five TEs prior to proven it. In the instant case, the and/or other vacant assignments completion of their 359 day com- union was unable to carry that that are not filled by PTF’s, reserve mitment. In doing so, Arbitrator burden and the grievance was de- carriers, or unassigned carriers, but Eaton states: nied. But in his denial the Arbitra- rather are filled by use of pivoting tor states: and/or overtime by non-ODL letter The Union has shown that carriers our case will be signifi- work remained to be done The Union, as the party as- after the five TEs were re- serting the applicability of cantly strengthened. In addition, moved, and that much of the “pretextual” proviso to Arbitrator Shea found that if the that work was performed on the grievant’s separation union could show that the basis for an overtime basis. However, m u s t bear the the separation was some other rea- as the Postmaster testified, burdens of son the union could mount a suc- overtime is built into the cessful grievance. staffing structure, and, as Lastly, the union can present a the Postal Service further demonstrates, when a facil- If the union can successful argument if we can show ity is fully staffed, contin- that after the separation of a TE a gencies argued by the Un- show work new TE was hired. These griev- ion, such as sickness, leave, ances clearly require thorough in- light and limited duty, and vestigation and documentation to other considerations, antici- was available, mount a successful case. pated or unanticipated, have also been factored into the it may carry staffing analysis. the day in Office complement arbitration. ACTIVIST INDEX In denying this grievance, the Arbitrator agreed that while work was available, the fact that the Want to access information in office was properly staffed made back issues of the Activist? As management’s decision to sepa- proof and persuasion regard- you all know, issues going back to rate the TEs an appropriate use ing its contentions. If the Un- Spring 1997 can be found on the NALC web site [nalc.org> depart> of the TE Memo. A considera- ion is to meet these burdens and prevail in its conten- au>nalcpubs>activist]. And a new tion of office complement thus edition of the Activist index is now should be a part of the union’s tions, the Arbitrator deter- mines it must factually estab- available, to help you find exactly argument in this type of case. what you need. The index covers Given the current landscape of lish at least the following: (a) the Service had work, which every Activist issue from 1986 to the USPS many offices are cur- was available for assignment 2009. rently understaffed and therefore to the grievnat at the time of the Eaton Award can provide a his separation; or (b) the To get the index, in either digital or useful argument. Service was primarily moti- hard-copy format, please contact: vated by reasons other than In Case No. B90N-4B-C Nancy Dysart 94038904 C-14917) Arbitrator the lack of work, when it separated the grievant. Director George R. Shea, Jr. grappled NALC Information Center with the question of a TE sepa- 100 Indiana Ave. NW rated allegedly for lack of work. Here Arbitrator Shea makes Washington DC 20001 The union argued that in fact the two important points. First, if we 202-662-2879 real reason (pretext) was that the can show work was available we [email protected]

12 NALC ACTIVIST November 2009

Assignment of new deliveries Fig. 3. Address Information Confidentiality Agreement (Continued from page 5) Remember, the report—New De- liveries Alert—is not just city delivery but all new deliveries. What type of request, or what kind of report, will supply you with the data you need to determine the new deliveries in your branch? The Postal Service has a very handy report which will provide you with the exact number of new deliveries. You must request it. The US Postal Service-Address Management Sys- tem, New Delivery Point Report (NDPR ) will provide you with the raw data you need to find out about new deliveries (Fig. 2). Requesting NDPR Each branch should coordinate the requesting of the NDPR in order to avoid needless duplication. The report can be tailored by installation, zip-code, and date. For instance, you may decide to have each steward request the information for the office they represent. If your installation has 30 zip-codes, the stewards should request one report for each zip—30 reports. If you are in an office with only one 12/31/09, 01/01/10–03/31/10, to protect the privacy of the infor- or two zip-codes then a single re- 04/01/10–06/30/10, etc.). mation from distribution beyond quest by a steward would be suffi- Under the provisions of Article the Postal Service. If you are asked cient. Which method your branch 17 and 31 the union has an abso- to sign such an agreement, you chooses doesn’t matter; what mat- lute right to request information. should read it carefully before ters is getting the information. The request for the NDPR is cer- signing and adhere to the disclo- sure requirements. Requests for the NDPR should tainly within that right. That said, indicate the time period for the re- the Postal Service considers the When you receive the NDPR quested data. The first request NDPR to contain information you should review the document should be from October 22, 2008 which must be protected against carefully. You will note the list of through the date of the request. privacy concerns. That is, the new delivery point addresses are After receiving the initial NDPR, Postal Service seeks to protect and on the left side of the report under requests should be made quarterly preserve the confidentiality of ad- the heading, Address. On the right to monitor all new deliveries to dress information. When you re- side of the report, under the head- insure compliance with the memo. quest the NDPR you may be asked ing SCHM CARR, you will see to sign a ADDRESS INFORMA- what route the new deliveries are Every subsequent request TION CONFIDENTIALITY assigned. The SCHM CARR is in- should cover the time since the last AGREEMENT (Fig. 3). The re- dentified as City Route, Rural request date through the date the quirement to sign the agreement is request is made (e.g. 10/22/08– (Continued on page 14) 13 NALC ACTIVIST November 2009

Assignment of new deliveries Grieving Limited Duty Violations GPS in postal vehicles

(Continued from page 13) (Continued from page 9) (Continued from page 3) Route, or Highway Contract Route Rebuttal Evidence The unit can be set up to use all (e.g. C009, R008, H007, etc.). of these options or just a few. The Counting the new delivery ad- The union should also be pre- system collects information every dresses will enable you to report pared to counter management’s two seconds and it transmits to the the number of new deliveries. By arguments. Too often union repre- office every five minutes with a identifying the SCHM CARR desig- sentatives will assume that man- two minute delay. It also recog- nation, you will be able to report to agement’s arguments are so frivo- nizes any new event and then trans- what form of delivery the new ad- lous that they don’t deserve a re- mits it. So if the engine is turned dresses were assigned. Remember, sponse. Thus, they decide that no off or the vehicle travels outside except for the specific exceptions rebuttal evidence is needed. The the preset boundaries the unit will listed in the memo, all new deliver- same mistake is also made when transmit that information at that ies are to be assigned to City deliv- the union feels that the grievant’s time. The GPS unit can also be set ery. case is so strong that there is no up to send an e-mail back to the need to respond to the arguments authorized supervisor to notify You are now ready for the next raised by management. Don’t take him/her of any deviation from what step in the process of monitoring that chance. is programmed into the unit. For the assignment of new deliveries: example, if the vehicle goes out- what to do if new deliveries are The rebuttal of management’s side the electronic fence, exceeds NOT assigned to city delivery. On contentions should be investigated the speed limit programmed into the New Deliveries Alert worksheet and formulated at Informal A and the system, or sits in one location you are asked to identify what other advanced at all subsequent steps of beyond a designated period of form of delivery received the new the grievance procedure. Don’t time, an e-mail alert can be sent to deliveries and the reason deliveries allow management’s arguments to the supervisor. were not assigned to city delivery. go unanswered. Countering management’s arguments may include It is important to understand In the next installment of Letter interviewing management’s wit- that the GPS device tracks a postal Carrier Craft and the Assignment nesses and it may include request- vehicle. It can’t tell if a carrier is of New Deliveries, we will address ing additional time and other re- delivering mail, taking a comfort the assignment of new deliveries to cords to test the accuracy of man- stop, talking to a postal patron, tak- other than city delivery and how to agement’s contentions. ing an authorized break, or eating document the disputed assign- lunch. The reliance on the GPS ments. The Memorandum indicates device as the sole basis to support disputes over the assignment of Summary accusations of or discipline for the new deliveries will be addressed by All limited duty grievances are alleged improper conduct of a let- the National Business Agent or the going to be different based on the ter carrier would be a violation of National Task Force if they cannot injured carrier’s medical restric- the National Agreement and, where be resolved at the regional level. tions and the limited-duty work discipline results, a violation of the However, the NBA or Task Force available in your area. Investigate elements of “just cause,” incorpo- can only pursue disputes based on every facet and put forth the rated into Article 16 of the collec- the documentation and develop- strongest case possible. The rights tive bargaining agreement, as well ment of the dispute by the local we fight for today may be the same as Article 19 of the National union. We must be prepared to dis- rights that save our job tomorrow. Agreement and Section 115.4 of pute every possible new delivery For further assistance contact the M-39 Handbook. assignment which is not compliant your NBA’s office. Also see the with the Memorandum. This is a NALC Guide to NRP at matter of compliance, this is a mat- http://nalc.org/depart/owcp/index.h ter about jobs, and this is about our tml. future.

14 NALC ACTIVIST November 2009 Training Seminars & State Conventions

Region 1—NBA Manny Peralta, (714) 750-2982 Region 8—NBA Lew Drass (256) 828-8205 California, Hawaii, Nevada, Guam Alabama, Louisiana, Mississippi, Tennessee Apr. 23-25 Campaign School, Las Vegas, NV Feb. 28-Mar. 3 6th Annual Regional Assembly/Training Ses- May 20-23 Regional Training Seminar, Pasadena, CA sion, Robinsonville, MS June 18-20 Campaign School, Los Angeles, CA Region 9—NBA Judy Willoughby (954) 964-2116 Region 2—NBA Paul Price, (363) 892-6545 Florida, Georgia, North Carolina, South Carolina Alaska, Utah, Idaho, Montana, Oregon, Washington Feb. 27-28 GA Training Seminar, Atlanta, GA Jan. 30 Oregon Mid-Winter RAP, Florence, OR Mar. 12-14 FL Training Seminar, Melbourne, FL Feb. 21-25 WA State Steward College, Gold Bar, WA Mar. 26-27 NC Training Seminar, Durham, NC Mar. 1-4 OR State Steward College, Silver Falls, OR Apr. 22-24 SC Training Seminar, Myrtle Beach, SC Mar. 15-18 OR State Steward College, Silver Falls, OR Mar. 26-28 WA Mid-Winter Training, Wenatchee, WA Region 10—NBA Kathy Baldwin (281) 540-5627 Apr. 16-18 OR State Convention, Kah-Na-Tee, OR New Mexico and Texas Apr. 19-22 UT State Steward College, TBA Feb. 13-15 Regional Training Session, Houston, TX May 9-13 MT/ID Steward College, W. Yellowstone, MT May 14-16 MT/ID Steward College, W. Yellowstone, MT Region 11—NBA Dan Toth (518) 382-1538 May 20-23 WA State Convention, Spokane, WA Upstate New York, Ohio

Jan. 24 COR Training, Columbus OH Region 3—NBA Neal Tisdale, (217) 787-7850

Illinois Region 12—NBA Bill Lucini (215) 824-4826 April 18 RAP Session, Chicago, IL Pennsylvania, South and Central New Jersey

Feb. 21-23 Regional 12 Annual Training Seminar, Atlantic Region 4—NBA Roger Bledsoe, (501) 760-6566 City, NJ Arizona, Arkansas, Colorado, Oklahoma, Wyoming Mar. 12 NJ State Congressional Breakfast, Washington, DC Jan. 29-30 CO State Training, Loveland, CO May 6 PA State Congressional Breakfast, Washington, DC Feb. 6-7 OK State Stewards College, Tulsa, OK May 23-25 NJ State Seminar, Atlantic City, NJ Feb. 20-21 AZ State Stewards College, Mesa, AZ Mar. 6-7 WY State Stewards College, Casper, WY Region 13—NBA Timothy Dowdy (757) 934-1013 Mar. 13-14 AR State Stewards College, Hot Springs, AR Delaware, Maryland, Virginia, West Virginia, Washington DC Apr. 30-May 1 OK State Convention, Muskogee, OK Jan. 11-12 Region 13 Training for New Stewards, Char- Region 5—NBA Mike Weir, (314) 872-0227 lottesville, VA Missouri, Iowa, Nebraska, Kansas Jan. 17-18 DE Steward Training, New Castle, DE Feb. 8-9 MD/DC Steward Training, Salisbury, MD Feb. 20-21 RAP Session, St. Louis, MO Feb. 14-15 WV Steward Training, Flatwood, WV Apr. 9-11 NE State Convention, Lincoln, NE Feb. 25-26 VA Steward Training, Richmond, VA Apr. 30-May 1 KS State Convention, Topeka, KS May 2-4 Iowa State Spring Training, Altoona, IA Region 14—NBA John Casciano (617) 363-9299 Region 6—NBA Pat Carroll, (586) 997-9917 Connecticut, Maine, Massachusetts, New Hampshire, Rhode Kentucky, Indiana, Michigan Island, Vermont Feb. 27-28 KYSALC Training, Ashland, KY Mar. 6-8 Region 14 RAP Session, Boston, MA Apr. 18-20 INSALC Convention, Michigan City, IN May 14-16 MA State Convention, Cape Cod, MA June 4-6 NH State Convention, Bartlett, NH Region 7—NBA Chris Wittenburg, (612) 378-3035 Minnesota, North Dakota, South Dakota, Wisconsin Region 15—NBA Larry Cirelli (212) 868-0284 Apr. 10-11 SD State Training Seminar, Chamberlain, SC Northern New Jersey, New York, SW Connecticut Apr. 23-25 ND State Training Seminar, Minot, ND Jan. 10-12 Branch 38 Training Session, Atlantic City, NJ Apr. 26-30 Region 7 31st Annual Regional Training Seminar, Minneapolis, MN For more information, contact your May 14-15 WI State Convention, Waukesha, WI National Business Agent.

15 Non-Profit U.S. Postage PAID Washington, D.C. A NEWSLETTER FOR BRANCH LEADERS PERMIT NO. 2255 NATIONAL ASSOCIATION OF LETTER CARRIERS 100 Indiana Ave. NW Washington DC 20001

USPS BY THE NUMBERS

Operations Change Finances from FY 2009 Number SPLY* Full Year—FY 2009 (billions) Total mail volume year-to-date Operating Revenue $68.09 -8.9% (Millions of pieces) 177,058 -12.6% Operating Expenses $71.83 -10.3% Operating Income -$3.74 Mail volume by class (in millions) First-Class 83,770 -8.9% Employment and Wages Periodicals 7,954 -7.5% Standard (bulk mail) 82,706 -16.5% Change Packages 730 -13.7% from FY 2009 —Pay Period 20 Number SPLY* Delivery points 150,115,881 0.6% City carrier employment 214,590 -5.2% City 87,670,966 0.4% Percent union members 92.2% 0.4% Rural 39,704,212 1.6% Transitionals 6,472 -10.3% PO Box 20,091,571 -0.7% FSS Transitionals 7,460 -1.1% Highway Contract 2,649,132 2.3% City carriers per delivery supervisor 17.9 0.6% Routes 234,001 -5.9% City Carrier 150,779 -6.7% Career USPS employment 623,128 -6.0% Rural Carrier 75,332 -1.6% Highway Contract 7,883 -26.1% Fulltime average straight-time wage $25.39 5.3%

*SPLY=Same Period Last Year 16