Article 7.1.B of the National Agreement establishes

rticle 7.1.B of the National Agreement establishes

the “supplemental work force,” which consists of ca-

sual employees. Since Article 1, Section 2 excludes

casual employees from the bargaining unit repre-

sented by NALC, casuals do not have the contrac-

tual protections enjoyed by career or transitional

bargaining-unit employees. Casual employees receive lower

pay than career or transitional carriers and they receive no

benefits. Sections 1 through 4 of Article 7.1.B contain specific

limitations on the hiring and use of casual employees who per-

form letter carrier work.

Over the years, the application of these casual provisions has

been the subject of many disputes and arbitrations at the na-

tional level. In fact, we are currently in the midst of separate ar-

bitration proceedings concerning the interpretation of two

sections of Article 7.B. One case concerns the Union’s position

that the Article 7.1.B.1 prohibition against employing casuals

“in lieu of full or part time employees” is an enforceable re-

striction. The second case raises the issue of when a casual is

considered to be “employed” in the carrier craft for the purposes

of enforcing the provisions of Article 7, Sections 1.B.3 and 4.

We anticipate arbitration awards in these cases early this year.

Fortunately, the interpretation and application of Article 7,

Section 1.B.2 is not in dispute. This section, which gives ca-

reer part-time flexible employees straight-time hours prior-

ity over casuals, is the casual provision local union

representatives are most frequently called upon to enforce.

It provides the following:

7.1.B.2 During the course of a service week, the Em-

ployer will make every effort to insure that qualified and

available part-time flexible employees are utilized at the

straight-time rate prior to assigning such work to casuals.

This section obligates management to give part-time flex-

ibles working at the straight-time rate a scheduling priority

over casual employees. This priority is not absolute. The em-

ployer’s obligation may be fulfilled over the course of a “ser-

vice week,” and the part-time flexible employees must be

“qualified and available.” (A “service week” begins at 12:01

a.m. Saturday and ends at 12:00 midnight the following Fri-

day. See Article 8.2.A.)

A successful grievance on this issue must show that man-

agement scheduled a casual for work which a PTF carrier

could have performed instead, and that the PTF carrier

worked less than 40 straight-time hours during the service

week. Because the contract language addresses the service

week rather than any specific day’s assignment, manage-

ment does not necessarily violate the contract by, for in-

stance, using a casual on a Monday while PTFs are

unscheduled. A violation occurs when that assignment causes

a PTF who could have performed the Monday work to lose

straight-time work hours during the service week. See Na-

tional Arbitrator Howard Gamser’s decision in AC-C-13148,

December 20, 1979 (C-00403).

Article 7.1.C.1.b establishes a similar rule giving part-time

flexibles working at the straight-time rate a scheduling priority

over transitional employees. It provides that:

7.1.C.1.b Transitional employees may be used to replace

part-time attrition. Over the course of a pay period, the Em-

ployer will make every effort to ensure that qualified and

available part-time flexible employees are utilized at the

straight-time rate prior to assigning such work to transi-

tional employees working in the same work location and

on the same tour, provided that the reporting guarantee for

transitional employees is met (emphasis added).

After some experience the parties realized that trying to

implement this provision over the course of a “pay period,”

rather than over the course of a “service week” as in the case

of casuals, was administratively difficult. The parties remedied

this problem by agreeing to the following in the Step 4 Set-

tlement M-01241.

The issue in these grievances involves the scheduling pri-

ority to be given part-time flexible employees over tran-

sitional employees. During our discussion, we mutually

agreed as follows: During the course of a service week, the

Employer will make every effort to ensure that qualified

and available part-time flexible employees are utilized at

the straight-time rate prior to assigning such work to tran-

sitional employees working in the same work location and

on the same tour, provided that the reporting guarantee

for the transitional employee is met (emphasis added).

Note the other slight difference between the casual rule

in Article 7.1.B.2. and the transitional employee rule

in Article 7.1.C.1.b. Unlike casual employees, who have no

guarantees, Article 8, Section 8.D guarantees transitional

employees four hours work or pay if they are scheduled to

work and report to work.

✉

Casuals

JANUARY 2001 |

POSTAL RECORD 25

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H.Young Jr., Director, Health Benefit Plan

rticle 15, Section 1 of the National Agreement sets

forth the following definition of a grievance:

A grievance is defined as a dispute, difference, dis-

agreement or complaint between the parties related

to wages, hours, and conditions of employment. A

grievance shall include, but is not limited to, the complaint

of an employee or of the Union which involves the interpre-

tation, application of, or compliance with the provisions of this

Agreement or any local Memorandum of Understanding not

in conflict with this Agreement.

This broad grievance clause means that most work-related dis-

putes may be pursued through the grievance/arbitration proce-

dure. The language recognizes that most grievances will involve

violations of the National Agreement or a Local Memorandum of

Understanding. Other types of disputes that may be handled

within the grievance procedure may include:

●

Violations of postal regulations: Article 19 provides that those

postal handbook and manual provisions directly relating to wages,

hours or working conditions are enforceable through the griev-

ance/arbitration procedure as though they were part of the National

Agreement. Locally developed policies or procedures may not

vary from nationally established handbook or manual provisions.

●

Violations of other enforceable agreements between NALC and

the Postal Service, such as Building Our Future by Working

Together, the Article 16.9 Memorandum ( M-00830) and the

Joint Statement on Violence and Behavior in the Workplace

(M-01242). In his August 16, 1996 award in national case C-

15697, Arbitrator Snow found that the Joint Statement constitutes

a contractually enforceable agreement between the parties and

that the union has access to the grievance procedure to resolve

disputes arising under it. Additionally, in his discussion of the case,

Snow writes that arbitrators have the flexibility in formulating

remedies to consider, if a violation is found, removing a super-

visor from his or her “administrative duties.”

●

Violations of past practices. Article 5 prohibits management

taking any unilateral action inconsistent with the terms of the ex-

isting agreement or with its obligations under law. Section 8(d) of

the National Labor Relations Act prohibits an employer from

making unilateral changes in wages, hours or working condi-

tions during the term of a collective bargaining agreement.

Thus, management may not make unilateral changes affect-

ing wages hours or working conditions by arbitrarily changing

or breaching established precedent regarding a customary prac-

tice not inconsistent with the national agreement—even if the

practice is not formalized in writing.

●

Violations of law. Article 5 also makes violations of law by the

Postal Service grievable matters. In C-06858, March 11, 1987, National

Arbitrator Bernstein wrote the following concerning Article 5:

The only purpose the Article can serve is to incorporate all the

Service’s “obligations under law” into the Agreement, so as to

give the Service’s legal obligations the additional status of con-

tractual obligations as well. This incorporation has significance

primarily in terms of enforcement mechanism—it enables the

signatory unions to utilize the contractual vehicle of arbitra-

tion to enforce all of the Service’s legal obligations. Moreover,

the specific reference to the National Labor Relations Act is per-

suasive evidence that the parties were especially interested in

utilizing the grievance and arbitration procedure spelled out

in Article 15 to enforce the Service’s NLRB commitments.

However, only disputes concerning violations of law by the

Postal Service are grievable under the National Agreement—not

violations by other government agencies. Thus disputes con-

cerning eligibility determinations by OWCP are not grievable.

On the other hand, procedural violations of OWCP or ELM reg-

ulations by the Postal Service are grievable. (See the Contract

Talk column in the November 2000 Postal Record.)

Some disputes are not grievable matters. For example,

Article 12,

Section 1 gives the Postal Service a right to separate probation-

ary employees at any time during their probationary period with-

out establishing “just cause.” Employees separated during their

probationary period are contractually barred from filing a griev-

ance concerning the separation. Furthermore, arbitrators will hold

that a grievance concerning the separation of probationary em-

ployee under the provisions of Article 12, Section 1 is not arbitrable.

Thus, unless there is a dispute concerning whether such a sep-

aration was effectively completed within the 90-day probationary

period, there would be no reason to pursue such cases. However,

employees serving their probationary period are members of the

bargaining unit and do have access to the grievance procedure

on all matters pertaining to their employment except separa-

tion. Similarly, casual employees do not have access to the griev-

ance procedure for any reason since Article 1, Section 2 specifically

excludes them from the bargaining unit represented by NALC.

The grievance procedure is a powerful tool negotiated to as-

sist letter carriers in resolving a wide range of work- related dis-

putes. If you believe your rights have been violated, see your shop

steward.

✉

What is a grievance?

FEBRUARY 2001 |

POSTAL RECORD 33

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H.Young Jr., Director, Health Benefit Plan

ull-time regular letter carriers

have fixed schedules and

starting times. The July

2000 Postal Record “Contract

Talk” column discussed man-

agement-initiated temporary sched-

ule changes to a full-time carrier’s

regularly scheduled workday or

workweek. That column covered

the out-of -schedule pay provisions

in Section 434.6 of the Employee

and Labor Relations Manual (ELM)

that are applicable when manage-

ment initiates schedule changes.

There may also be situations in

which full-time letter carriers

wish to have their regular sched-

ules temporarily changed for

their own convenience. This is

possible, but in such cases man-

agement need not pay out-of-

schedule premium. In order to

qualify for a voluntary schedule

change, the request must meet all

three of the following criteria:

1. The requested schedule change must be for the personal

convenience of the employee—not for the convenience of man-

agement. Two national-level arbitration awards have ad-

dressed this issue. National Arbitrator Gamser held in case

C-00161 that management could not be relieved of the oblig-

ation to pay out-of-schedule premium by informing employ-

ees who volunteered for higher-level assignments that such

assignments would be considered to be “at the request of the

employee.” National Arbitrator Mittenthal held in case C-

00580 that acting supervisors (204Bs), or the “employee-su-

pervisors” in the grievances before him were “entitled to

the out-of-schedule premium during their details as tempo-

rary supervisors.”

2. The employee must sign a Form 3189, Request for

Temporary Schedule Change for Personal Convenience.

3. Management and the union’s representative (normally

the certified steward in the employee’s work location) must

agree to the change and both must sign the Form 3189.

Managers questioning this requirement should be directed

to Section 232.23 of the Time and Attendance Handbook F-21

which provides that:

“This form [3189] is used by employees to request a tempo-

rary schedule change for their personal convenience. By sub-

mitting a properly approved form to his (sic) supervisor, the

employee agrees (if the request is approved by the supervisor)

to forfeit any out-of-schedule premium to which he would oth-

erwise be entitled during the period requested. The union stew-

ard (or certified union representative in smaller offices) must

agree to the temporary change before the change is presented

to the supervisor.”

Union stewards should take this responsibility seriously. Of

course, most such requests can be routinely approved. How-

ever, care must be taken that the proposed schedule change

does not adversely affect the rights of other members of the

bargaining unit. Stewards should also be sure that employ-

ees requesting a change in schedule are not seeking to waive

the eight-hour scheduling guarantee for full-time employees

(see M-00879). All requests must be considered strictly on

their merits, without regard to personal feelings or union mem-

bership. When in doubt, shop stewards should seek the ad-

vice of a branch officer.

✉

Voluntary schedule changes

MARCH 2001 |

POSTAL RECORD 15

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H.Young Jr., Director, Health Benefit Plan

inear Measurement, DUVRS, Reference Volume,

Demonstrated Performance, POST, DOIS, etc. Over

the years experienced letter carriers have heard all

these terms. All these programs are variants of the

same basic idea— management tools to assess letter

carriers’ daily workload. Of course, management does have

a right to develop whatever tools it wants for its own purposes.

However, none of these tools has any contractual signifi-

cance since there are no daily standards for evaluating letter

carrier performance. None of these programs may be used

as a basis for discipline or as a shortcut to avoid

using the established M-39 procedures for eval-

uating and adjusting routes.

Some managers seem to have the mistaken no-

tion that the rules have changed since the POST

and DOIS programs are “computerized,” more

“modern,” more “accurate,” or whatever. We all

know that the quantitative data in the DOIS and

POST programs is often wildly inaccurate and fails

to take into account many of the most significant

factors affecting office and street times. But usu-

ally this argument is pointless and unnecessary

since, in fact, the rules have not changed. Perhaps

some supervisors need to be reminded.

The so-called office standards of 18 per minute

for letters and eight per minute for flats have one

purpose only. They are two of the many factors

that the M-39 requires management to use in order to calculate

“standard office time” during a route inspection. The office

time allowance for a route is established as the lesser of the

carrier’s average office time during the inspection period, or

the average standard office time.

Standard office time is based on the totality of a letter carrier’s

office performance. It may not be broken down into sub-

components—for example, by determining only how long it

takes a letter carrier to case a known number of letters. Even

when conducting a special one-day mail count under the pro-

visions of M-39 Section 141.2, management must use and fully

complete a Form 1838-C.

Simple failure to meet office standards is never just cause

for discipline. Under the terms of a September 3, 1976 Mem-

orandum of Understanding, the M-39 Handbook was modi-

fied to underscore this point. Section 242.332 now provides

that:

No carrier shall be disciplined for failure to meet stan-

dards, except in cases of unsatisfactory effort which

must be based on documented, unacceptable conduct

that led to the carrier’s failure to meet standards.

This principle was further reinforced in the July 11, 1977

Step 4 Settlement M-00386 which states:

Management may not charge or impose discipline upon

a carrier merely for failing to meet the 18 and 8 casing

standards. Any such charge is insufficient. Under the

Memorandum of Understanding of September 3, 1976

[now M-39 § 242.332] the only proper charge for disci-

plining a carrier is “unsatisfactory effort.” Such a charge

must be based on documented, unacceptable conduct

which led to the carrier’s failure to meet the 18 and 8 cri-

teria. In such circumstances, management has the bur-

den of proving that the carrier was making an

“unsatisfactory effort” to establish just cause for any

discipline imposed (emphasis added).

In summary, do what letter carriers have always done. Give

your best effort every day, follow the rules and do not engage

in “unacceptable conduct.” As long as you remember these

simple guidelines, you shouldn’t have to worry about being

disciplined for failure to make casing standards.

✉

Standards

APRIL 2001 |

POSTAL RECORD 17

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

RONALD G. BROWN,VICE PRESIDENT

JANE E. BROENDEL, ASSISTANT SECRETARY-TREASURER

GARY H. MULLINS, DIRECTOR OF CITY DELIVERY

ALAN C. FERRANTO, DIRECTOR OF SAFETY AND HEALTH

THOMAS H.YOUNG JR., DIRECTOR, HEALTH BENEFIT PLAN

“No carrier shall be disciplined

for failure to meet standards,

except in cases of unsatisfactory

effort which must be based on

documented, unacceptable

conduct that led to the carrier’s

failure to meet office standards.”

he Department of Labor (DOL) is clear on the eligibility

requirements for taking leave under the Family and

Medical Leave Act (FMLA)—or is it? The FMLA al-

lows “eligible” employees to take job-protected paid

or unpaid leave up to a total of twelve workweeks in

a leave year. An employee can use FMLA because of the

birth of a child, placement of a child for foster care and/or

adoption, to care for family member with a serious health con-

dition, or because the employee’s own serious health condi-

tion makes the employee unable to perform the functions of

his or her own job. An “eligible” employee is one who has been

employed by the employer for at least 12 months and has

worked 1,250 hours during the 12-month period immedi-

ately preceding the commencement of the leave. The DOL

regulations provide that whether an employee has worked the

minimum 1,250 hours of service is determined according to

the principles established under the Fair Labor Standards Act

(FLSA).

The April 3, 2001 pre-arbitration settlement M-01436 re-

solved a dispute concerning the meaning of “worked the

minimum 1,250 hours:”

When an employee is awarded back pay, the hours an em-

ployee would have worked if not for the action which resulted

in the back pay period, are counted as work hours for the

1250 work hour eligibility under the Family Medical

Leave Act (FMLA).

If an employee substitutes annual or sick leave for any part

of the back pay period that they were not ready, willing and

able to perform their postal job, the leave is not counted as

hours for the 1250 work hour eligibility requirement under

the FMLA.

If a remedy modifies an action, resulting in a period of sus-

pension or leave without pay, that time is not counted as

work hours for the 1250 hours eligibility requirement

under the FMLA.

Publication 71 (Pub 71), Notice for Employees Requesting

Leave for Conditions Covered by the Family and Medical Leave

Act, is a Postal Service publication which informs postal em-

ployees of their rights under the Family and Medical Leave

Act. If an employee requests leave and the supervisor believes

the reason the employee needs the leave is due to a “serious

health condition,” the employer is required to give the em-

ployee a copy of Pub 71.

Recently NALC was notified of changes to Pub 71 under

the provisions of Article 19. It is NALC’s position that the

changes to Pub 71 are inconsistent with the Code of Federal

Regulations. On February 8, 2001 the NALC appealed the

changes to Pub 71 to national-level arbitration. The revised

Pub 71 requires documentation to return to work after using

protected leave that is inconsistent with the provisions of

the EL-311 and ELM 865. Furthermore, the new requirements

are more onerous for bargaining-unit employees than for

supervisory employees. Additionally, the revised Pub 71 con-

tains examples of specific information that may be required

before returning to work. The Postal Service has admitted that

there is no contractual or legal basis for these examples and

argued that they are only “guidance” and not “mandatory.”

Imagine trying to explain this distinction to your supervisor.

Another significant pre-arbitration settlement, M-01437,

April 09, 2001, overturned an abusive local management pol-

icy. The settlement, which quotes Article 13.4.F in its en-

tirety, says it all:

The issue in this grievance is whether a local “blanket pol-

icy” requiring an update of medical information every 30

days to continue in a light-duty assignment is a violation

of Article 13 of the National Agreement.

The parties agree that the local practice of requiring an au-

tomatic update of medical information every 30 days is con

trary to the intent of Article 13 and, therefore, will be

discontinued. Consistent with the provisions of Article

13.4.F of the National Agreement, an installation head may

request an employee on light-duty to submit to a medical

review at any time: The installation head shall review each

light duty reassignment at least once each year, or at any

time the installation head has reason to believe the in-

cumbent is able to perform satisfactorily in other than the

light duty assignment the employee occupies. This review

is to determine the need for continuation of the employee

in the light duty assignment. Such employee may be re-

quested to submit to a medical review by a physician des-

ignated by the installation head if the installation head

believes such examination to be necessary (emphasis

added).

✉

FMLA update

MAY 2001 |

POSTAL RECORD 15

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H.Young Jr., Director, Health Benefit Plan

JUNE 2001 |

POSTAL RECORD 25

ast month’s column highlighted recent national level pre-

arbitration settlements of FMLA-related issues. This

article provides an update of various other contract is-

sues recently resolved at the national level. Although

each of these settlements concerns a specific nar-

row issue, we are pleased with the large number of such dis-

putes that we have recently been able to resolve. Actual

copies of these and other recent settlements can be found in

the CAU section of NALC’s web site.

The March 17, 2001 national level prearbitration settle-

ment in case M-01442 put an end to a novel “flexibility” strat-

egy some area Postal Service officials have been trying to

implement. PTF letter carriers were told that as a condition

of employment they had to agree to be assigned to more than

one installation. When hired, their Form 50s were completed

to reflect more than one installation as a duty station. They

were then required to work for different postmasters in dif-

ferent towns on a day-to-day basis. Needless to say, this

arrangement was a contractual nightmare. Where did they

accrue seniority? Where could they opt? Where did they

they finally end up? The settlement provides that:

An employee’s official Form 50 may reflect only one duty

station. A Form 50 which reflects more than one duty sta-

tion will be amended to reflect one duty station.

If any NALC branches are aware of other situations where

PTFs are assigned to more than on installation, they should

contact their national business agent.

The prearbitration settlement M-01438 resolves a long standing

dispute concerning the Handbook EL-505, Injury Compen-

sation. NALC had appealed the EL-505 to arbitration under

the provisions of Article 19 because of the Postal Service’s po-

sition that injured letter carriers could be required to take

“functional capacity tests.” These tests are typically whole body

tests that consist of a series of procedures to determine an em-

ployee’s physical demand level. They are designed to measure

the employee’s pain or fatigue level. NALC has always insisted

that such tests should not be made mandatory because of their

demonstrated potential to cause or aggravate injuries. The set-

tlement states that:

In applying the language of the EL-505, it is mutually un-

derstood that an employee will not be required to take a func-

tional capacity test if the employee’s treating physician

recommends against it for medical reasons.

Injured letter carriers should always consult with their

treating physician if they have questions or reservations con-

cerning any tests or procedures the Postal Service seeks to

have performed.

Article 27 sets forth the rules for “employee claims” for lost

or damaged personal property. It specifically excludes “pri-

vately owned motor vehicles and the contents thereof.” Over

the years, most regional arbitrators have incorrectly held

that it excludes bicycles as well. For example, one regional

arbitrator reasoned as follows:

Means of transportation to and from the employee’s place

of employment cannot be held a compensable loss under the

terms of Article 27. While the word “bicycle” does not ap-

pear in the Article, the word “automobile” must be construed

as embracing all means of transportation.

The April 19, 2001 prearbitration settlement M-01440 ac-

knowledges that these regional arbitrators have been wrong

and clarifies the application of Article 27.

The issue in this grievance is whether Article 27, Em-

ployee Claims, is the proper procedure to file a claim for

the loss or damage to bicycles, or is a bicycle considered a

“motor vehicle” and therefore subject to the procedures of

the Federal Tort Claims Act. The parties agreed that Ar-

ticle 27 does not apply to privately owned motor vehicles

and the contents thereof. However, we agree that non-mo-

torized bicycles are not considered “privately owned motor

vehicles,” such as those excluded from the Article 27 pro-

cedures. Therefore, a claim for loss or damage to non-mo-

torized bicycles can be made and decided in accordance with

the provisions of Article 27.

Letter carriers seeking to make claims involving a pri-

vately owned motor vehicle should check with a steward or

branch officer, since such claims must be made under the pro-

cedures of the Federal Tort Claims Act rather than Article 27

procedures.

✉

Recent settlements

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H.Young Jr., Director, Health Benefit Plan

he Contract Administration Unit has been receiving

disturbing reports of widespread violations of the con-

tractual overtime limits in some Postal Service Areas.

Once again it has become necessary to review these

provisions so that all letter carriers are aware of

their rights. There are two separate restrictions on the max-

imum number of hours a letter carrier craft employee may be

required to work. One is found in Article 8, Section 5.G and

the other in Section 432.32 of the Employee and Labor Rela-

tions Manual (ELM)

Article 8, Section 5.G applies to full-time regular and full-time

flexible employees only. Excluding December, it limits them

to no more than twelve hours of work in a day and no more

than sixty hours of work in a service week. National Arbitrator

Mittenthal ruled in C-06238 that the 12- and 60-hour limits are

absolutes. Excluding December, a full-time employee may nei-

ther volunteer nor be required to work beyond those limits.

In C-07323 Arbitrator Mittenthal ruled that when a full-time

employee reaches sixty hours in a service week, management

is required to send the employee home—even in the middle

of a scheduled day. He further held that in such cases the em-

ployee is entitles to be paid the applicable eight hour guarantee

for the remainder of his or her scheduled day.

On October 19, 1988 the national parties signed the fol-

lowing Memorandum of Understanding (M-00859) to im-

plement the Mittenthal awards.

The parties agree that with the exception of December, full-

time employees are prohibited from working more than 12

hours in a single work day or 60 hours within a service

week. In those limited instances where this provision is or

has been violated and a timely grievance filed, full-time em-

ployees will be compensated at an additional premium of

50 percent of the base hourly straight time rate for those

hours worked beyond the 12 or 60 hour limitation. The em-

ployment of this remedy shall not be construed as an agree-

ment by the parties that the Employer may exceed the 12

and 60 hour limitation with impunity. As a means of fa-

cilitating the foregoing, the parties agree that excluding De-

cember, once a full-time employee reaches 20 hours of

overtime within a service week, the employee is no longer

available for any additional overtime work. Furthermore,

the employee’s tour of duty shall be terminated once he or

she reaches the 60th hour of work, in accordance with Ar-

bitrator Mittenthal’s National Level Arbitration Award on

this issue, dated September 11, 1987, in case numbers H4N-

NA-C 21 (3rd issue) and H4N-NA-C 27.

Arbitrator Snow ruled in C-18926 that the Memorandum

of Understanding M-00859 limits the remedy for any violations

of the Article 8.5.G to an additional premium of 50 percent of

the base hourly straight-time rate.

ELM Section 432.32 provides the following rule that applies

to all employees, including casuals and transitional employ-

ees (C-15699, National Arbitrator Snow).

Except as designated in labor agreements for bargaining

unit employees or in emergency situations as determined

by the PMG (or designee), employees may not be required

to work more than 12 hours in 1 service day. In addition,

the total hours of daily service, including scheduled work

hours, overtime, and mealtime

, may not be extended over

a period longer than 12 consecutive hours. Postmasters,

Postal Inspectors, and exempt employees are excluded from

these provisions. (Emphasis added)

Because this ELM provision limits total daily service hours,

including work and mealtime, to 12 hours, an employee is ef-

fectively limited to 11 ½ hours per day of work plus a ½ hour

meal. However, the ELM also permits the collective bar-

gaining agreement to create exceptions to this general rule.

The only exception to this rule is for full-time regular em-

ployees on the overtime desired list who, in accordance with

Article 8.5.G, “may be required to work up to twelve (12) hours

in a day.” Since “work,” within the meaning of Article 8.5.G

does not include mealtime, the “total hours of daily service”

for carriers on the overtime desired list may extend over a pe-

riod of 12 ½ consecutive hours. Additionally, Ar ticle 8.5.G pro-

vides that the limits do not apply during December when

full-time employees on the overtime desired list may be re-

quired to work more than twelve hours. These exceptions do

not apply to casuals, transitional employees, part-time em-

ployees or full-time employees who are not on the overtime

desired list, all of whom are effectively limited to 11 ½ hours

of work per day, even during December. It is NALC’s position

that the Snow decision in C-18926 limiting the remedies to an

additional premium of 50 percent of the base hourly straight

time rate only applies to violations of the Article 8.5.G. It

does not limit remedies for repeated or deliberate violations

of ELM 432.32.

✉

Overtime limits

JULY 2001

POSTAL RECORD

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H. Young Jr., Director, Health Benefit Plan

Contract Administration Unit

Contract Talk

Q. Are the Family and Medical Leave Act (FMLA) and Sick Leave for De-

pendent Care (SLDC) one and the same?

A. No. FMLA is a 1993 federal law which entitles eligible employ-

ees to take up to a total of 12 workweeks of unpaid leave during a

12 month period for the birth of a child and to care for such child,

for the placement of a child for adoption or foster care, to care for

a spouse or an immediate family member with a serious health

condition, or when he or she is unable to work because of a serous

health condition.

SLDC is a contractual right which enables a letter carrier to use

paid sick leave - up to 80 hours per leave year to care for an ailing

family member.

Q. How are the two similar?

A. Just to name a few significant similarities:

◆

Both were developed to balance the demands of the work-

place with the needs of the families.

◆

The definition of family member is the same (see ELM 515.2).

◆

Neither FMLA nor SLDC entitle an employee to any leave in

addition to what the employee currently earns, rather both

FMLA and SLDC allow the employee the right to use leave for

a new reason—to care for a family member.

◆

If the employee needs time off to care for a family member with

a serious health condition the employer cannot take disciplinary

action against the employee for unscheduled absences.

◆

If the family member has a serious health condition and the car-

rier takes SLDC, the time off will count towards both the 80 hour

SDLC and 12 week FMLA entitlement.

◆

As stated in Ron Brown’s Postal Record column this month, those

who are fortunate enough to have a healthy family and thus, who

have no need to take leave under either FMLA or SLDC, can-

not carry their unused right to FMLA leave or SLDC leave over

to following years.

◆

The entitlement to both FMLA leave and SLDC leave begin with

the first day of the postal leave year.

Q. What is a serious health condition?

A. There is no laundry list of what qualifies as a serious health con-

dition but if an illness or injury meets one or more of the criteria listed

below then it would be considered a serious health condition.

◆

An overnight stay in a hospital, hospice or residential medical

care facility, including any period of incapacity or subsequent

treatment for such care.

◆

A period of incapacity of more than three consecutive calendar

days - including any subsequent treatment or period of incapacity

relating to the same condition that also includes treatment

two or more times by a member of the health care profession

or treatment by the health care professional on at least one oc-

casion which results in a regimen of continuing treatment.

◆

Pregnancy—any period of incapacity due to pregnancy or for

prenatal care, including morning sickness or doctor visits.

◆

Chronic conditions—conditions which occur repeatedly and re-

quire treatment. Some examples of a chronic condition are di-

abetes, epilepsy or asthma.

◆

Permanent long-term conditions requiring supervision due to

a condition for which treatment may be effective or a cure im-

minent. Some examples include Alzheimer’s, multiple sclero-

sis or terminal cancer.

◆

Non-chronic conditions which necessitate the need for multi-

ple treatments such as kidney dialysis or physical therapy after

an accident.

Q. How are FMLA and SLDC different?

A. Some significant differences are:

◆

Unless the illness, injury or other condition is a serious health

condition the employee can be disciplined for unscheduled

absences when using SLDC whereas when using FMLA the

leave is protected and employee cannot be disciplined. FMLA

allows the employee 12 workweeks of protected leave (com-

bination of annual, sick or leave without pay depending on the

reason for the leave) while SLDC only allows the employee to

use 80 hours of earned sick leave.

◆

The employee can take up to 80 hours of sick leave to attend

to a family member with a minor or serious illness, injury or

other condition, while FMLA must be taken to attend to a fam-

ily member with a serious illness, injury or other condition.

FMLA is a federal law and unless the law is appealed it will con-

tinue until an Act of Congress changes it. SLDC is a contrac-

tual right which must be renegotiated at the end of the 1998-2001

National Agreement.

Q. How do I know what my rights are under FMLA and what my rights

are under SLDC?

A. An employee’s rights under FMLA are outlined in the Employee

and Labor Relations Manual (ELM), Section 515. The Department

of Labor’s Poster 1420 which gives a brief summary of employee

rights, by law, must be displayed in every postal facility. If the em-

ployer suspects the employee’s leave is FMLA related the employer

is required to supply the employee with a copy of Publication 71, No-

tice for Employees Requesting Leave for Conditions Covered by the

Family and Medical Leave Act.

The Memorandum of Understanding on SLDC can be found

in the 1998-2001 National Agreement between the NALC and

the USPS.

✉

Family and Medical Leave Act vs.

Sick Leave for Dependent Care

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H. Young Jr., Director, Health Benefit Plan

AUGUST 2001

POSTAL RECORD

SEPTEMBER 2001

POSTAL RECORD 17

Contract Administration Unit

Contract Talk

he July 30, 2001 pre-arbitration settlement M-01444,

reprinted on the facing page, resolved the long-

standing national level disputes concerning the Piece

Count Recording System (PCRS), Projected Office

Street Time (POST), and Delivery Operations In-

formation System (DOIS) programs. A copy of the settlement

in PDF format is also available from the NALC web site at

www.nalc.org. The settlement was the culmination of ex-

tended discussions and sustains NALC’s position on all sub-

stantive areas of disagreement.

The settlement unequivocally states that the POST, DOIS

and PCRS data will not constitute the sole basis for discipline.

The settlement also reaffirms the principle, spelled out in Sec-

tion 242.332 of the M-39, that “No carrier shall be disciplined

for failure to meet standards, except in cases of unsatisfactory

effort which must be based on documented, unacceptable con-

duct that led to the carrier’s failure to meet office standards.”

Computer or volume data, standing alone, is never sufficient

to establish just cause for discipline. The settlement also re-

states the principle from the 1985 pre-arbitration M-00304 that

“there is no set pace at which a carrier must walk and no street

standard for walking.”

The settlement allows both parties to use the information

from these programs to support or refute any performance

related discipline. Thus any information from these pro-

grams necessary to investigate or process a grievance must

be made available to the Union under the provisions of Arti-

cles 17 and 31.

The settlement makes clear that all route adjustments must

be performed in accordance with Subchapter 141 and Chap-

ter 2 of the M-39 Handbook. If DOIS data relating to the route

inspection and adjustment process is used, it must be in strict

compliance with these handbook provisions. Nothing has

changed. DOIS, like any other software, is no better than the

data entered. If mistakes are made, the results printed out will

be wrong and subject to challenge. It’s just that simple.

Finally, the settlement makes clear that “no function per-

formed by POST or DOIS, now or in the future, may violate

the national agreement.” Shop stewards take note. The DOIS

program has an overtime tracking module. In principle it

usually can track overtime distribution in accordance with the

provisions of Article 8. However, the overtime tracking mod-

ule is so poorly conceived that it requires numerous time-con-

suming daily “adjustments” to work correctly. We expect

that, as a practical matter, supervisors will not bother so the

data will not be contractually correct in many sit-

uations. The settlement makes clear that in such

cases the provisions of Article 8, not the DOIS pro-

gram, are controlling.

It has been almost four years since management

first notified NALC that it was planning to test

the POST and DOIS programs. At that time NALC

was advised that the Postal Service believed these

new programs would greatly enhance its ability to

monitor each carrier’s daily performance and cap-

ture undertime. More recently, the Postal Ser-

vice decided to standardize upon DOIS as the

best program. The DOIS computer software uses

the piece-count information from PCRS to calcu-

late estimated daily route times, track overtime,

and even help make route adjustments. It sounded

too good to be true—and it was. It simply took four years for

the Postal Service to recognize the obvious.

Although this settlement agreement took an inordinate

amount of time to negotiate, the final result is a step in the right

direction. It recognizes that no computer program can abridge

letter carriers’ contractual rights. It also recognizes that

postal management can use the software as a tool to provide

supervisors with information to help make day-to-day deci-

sions. Of course, the debate over how much time it can take

to deliver mail has been an ongoing issue for many years.

Hopefully this national pre-arbitration decision will make life

a little easier on the workroom floor for everyone.

I have met with the Postal Service numerous times over the last

two months concerning the Managed Service Points (MSP)

program. We have made some headway on the key issue of the

times listed and approved by the local manager on the form

1564-A. Let’s hope that the Postal Service’s second step in the

right direction is just right around the corner.

✉

POST and DOIS settlement

16 POSTAL RECORD

SEPTEMBER 2001

Director of City Delivery

Gary H. Mullins

“No carrier shall be disciplined for

failure to meet standards, except

in cases of unsatisfactory effort

which must be based on

documented, unacceptable

conduct that led to the carrier’s

failure to meet office standards.”

he right to a special route examinations under the provisions

of M-39, Section 271g was most recently addressed in

NALC Director of City Delivery, Gary Mullin’s column

in the January 2000 Postal Record. They are not a point-

less exercise. M-39, Section 242.122 requires that in-

spections result in routes being adjusted to “as nearly eight

hours daily work as possible.” Furthermore, M-39, Section 211.3

requires that if a special inspection demonstrates that a route is

overburdened, adjustments must be made within 52 days of the

completion of the mail count unless an exception is approved by

the District manager. This provision is the subject of the following

memorandum of understanding:

The United States Postal Service and the National Asso-

ciation of Letter Carriers, AFL-CIO, agree that it is in the

best interests of the Postal Service for letter carrier routes

to be in proper adjustment. Therefore, where the regular

carrier has requested a special mail count and inspection,

and the criteria set forth in Part 271g of the Methods

Handbook, M-39, have been met, such inspection must be

completed within four weeks of the request, and shall not

be delayed. If the results of the inspection indicate that the

route is to be adjusted, such adjustment must be placed

in effect within 52 calendar days of the completion of the

mail count in accordance with Section 211.3 of the M-39

Methods Handbook. Exceptions may be granted by a Di-

vision General Manager only when warranted by valid

operational circumstances, substantiated by a detailed

written statement, which shall be submitted to the local

union within seven days of the grant of the exception.The

union shall then have the right to appeal the granting of the

exception directly to Step 3 of the grievance procedure

within 14 days.

In the recent regional arbitration award C-21979, the arbi-

trator sustained the union’s grievance concerning a violation

of these provisions and awarded a substantial monetary award.

The full award is available at the CAU section of the NALC web-

site at www.nalc.org. Other arbitration awards granting mon-

etary awards for violation of these provisions include C-19464,

C-17006 and C-16848 and C-22242. Reprinted below are ex-

cerpts from the award:

By requiring this level of specificity in the application for

an extension, it is clear that the parties did not contemplate

that extensions would be granted for ordinary, foreseeable

circumstances of the average inspection. Rather, one can

infer that the national representatives intended the phrase

to refer to some event that could not be anticipated at the

start of an inspection. Other arbitrators are in agreement

that in general a “valid operational circumstance” is “an un-

foreseeable event(s) occurring subsequent to the route in-

spections which have a demonstrable and direct impact

upon daily operations of the Postal Service.”

Thus, an extension application must be based not only on

an unforeseeable event(s), but the event(s) must also

have a serious, immediate impact on Postal operations. The

events in that category include, but are not limited to: act

of God emergencies — floods, fires, earthquakes, blizzards,

tornadoes, hurricanes, plagues, riots, major equipment or

structural failures, or other situations of that gravity....

***

The Postal Service’s format makes unsupported assertions

of why it seeks an extension instead of the detailed state-

ment substantiating each ground as required by the §211.3.

The grounds of the extension were all administrative in na-

ture, and were all factors and circumstances relating to

problems totally within Postal Service control which could

have reasonably been anticipated and provided for when

the mail count and route inspection was undertaken. Fur-

ther, the grounds cited by the Postmaster benefitted only

the convenience of the Postal Service....

***

It is not the Carriers’ problem that the District over-sched-

uled itself. The instrumentality of mail counts and in-

spections is wholly in the hands of the Postal Service

which has either failed to provide adequate personnel to

handle the commitments it assigns itself, or has failed to

adequately document the difficulty it encountered in man-

aging so many inspections at the same time. In either

case, this ground alone will not support a request for an

extension because this ground is purely an administrative

convenience....

***

Although the Carriers would have difficulty establishing

exact dollar losses, it does not mean they have suffered no

harm. This is an atypical case because of the serious

abuse of the extension exception. This may not be the same

result in a less egregious case, that is why the national par-

ties have set a case-by-case standard of review. The harms

cited: prolonged anxiety, the stress of enduring overbur-

dened routes, the frustration of childcare, family, recre-

ational, and bad faith violations of Section 211.3, and the

Postal Service’s breach of the covenant of good faith and

fair dealing.

✉

Route adjustments

OCTOBER 2001

POSTAL RECORD 19

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H.Young Jr., Director, Health Benefit Plan

he September 20, 2001 Step 4 Settlement M-01446

resolved a national level grievance concerning the

scope of ELM Section 437 which establishes pro-

cedures for requesting a waiver of a claim made by

the USPS against a current or former employee for

the recovery of pay which was erroneously paid. The ELM

provides in subsection 437.6 that the Postal Service will grant

a waiver request if all of the of the following conditions are met:

a. The overpayment occurred through administration

error of the USPS. Excluded from consideration for waiver

of collection are overpayments resulting from errors in

timekeeping, keypunching, machine processing of time

cards or time credit, coding, and any typographical errors

that are adjusted routinely in the process of current oper-

ations.

b. Everyone having an interest in obtaining a waiver

acted reasonably under the circumstances, without any in-

dication of fraud, misrepresentation, fault, or lack of good

faith.

c. Collection of the claim would be against equity and

good conscience and would not be in the best interest of the

USPS.

The Postal Service had taken the position that, since with-

held insurance premiums are not pay, the ELM 437 waiver

provisions do not apply to employer claims resulting from a

failure to make proper deduction for insurance premiums. The

grievance was resolved as follows:

The issue in this case is whether Section 437 of the Employee

and Labor Relations Manual allows employees to request

a waiver where the employer erroneously failed to withhold

employee insurance premiums. The parties agree that

nothing contained in Section 437 of the ELM precludes an

employee from requesting a waiver where the employer er-

roneously failed to withhold employee insurance premiums

The October 9, 2001 Step 4 Settlement M-01447 resolved a

dispute concerning the authority of arbitrators. The case

arose when a regional arbitrator denied a request by the

Postal Service advocate to hear only arbitrability arguments

during the first day of hearings and postpone a hearing on the

merits of the case until all the procedural issues were resolved.

After the arbitrator refused to “bifurcate” the hearing as re-

quested, the Postal Service appealed the case to Step 4. The

grievance was resolved as follows:

The issue in this case is whether an arbitrator may approve

or deny a request by one of the parties to bifurcate an ar-

bitration proceeding, hear only procedural issues on the first

day of hearing and postpone a hearing on the merits until

the procedural issues are decided.

During our discussion we mutually agreed that an arbi-

trator has discretion to approve or deny such a request to

bifurcate the hearing of a case.

The September 6, 2001 National Level Prearbitration Settle-

ment M-01445 resolved a dispute concerning the remedy in

cases where there are multiple violations during the same ser-

vice week of the 12 and 60 work hour limits in Article 8, Sec-

tion 5.G. In the settlement the parties agreed that the remedy

of 50% of the base hourly straight time rate provided in the

Memorandum M-00859 applies for each hour worked in ex-

cess of twelve on a service day (excluding December) by a

full-time employee. The remedy of 50% of the base hourly

straight time rate also applies for each hour worked by a full-

time employee in excess of the sixty during the same service

week (excluding December) in which the full-time employee

has exceeded twelve hours in a service day. For example, if

during the same service week a full-time employee worked

14 hours on Monday and 62 hours on Friday, four hours

would have been worked in violation of the Article 8.5.G re-

strictions. The appropriate remedy in this example would be

four hours of pay at 50% of the base hourly straight time

rate——two for Monday and two for Friday. In this example,

management should have instructed the carrier to “clock off”

and go home on Friday when sixtieth hour was reached.

The employee would then be paid whatever guarantee applied

for the remainder of the service day.

In those circumstances where the same work hours of a

full-time employee simultaneously violate both the twelve

hour and sixty hour limits, only a single remedy of 50% of the

base hourly straight time rate is applied. For example if a full-

time employee worked 14 hours on Friday, resulting in a 62

hour workweek, only two hours would have been worked in

violation of the Article 8.5.G restrictions. The appropriate

remedy in this example would be two hours of pay at 50% of

the base hourly straight time rate.

A signed copy of these and other recent settlements can be

found in the Contract Administration Unit section of the

NALC website at www.nalc.org.

✉

Recent settlements

NOVEMBER 2001

POSTAL RECORD 25

Contract Administration Unit

Contract Talk

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H.Young Jr., Director, Health Benefit Plan

24 POSTAL RECORD

DECEMBER 2001

Contract Talk

Contract Administration Unit

n the October 25, 2001 award C-22652, National Arbitrator

Dennis Nolan sustained NALC’s position concerning the

back pay provisions of Article 16, Section 6.C. The griev-

ance concerned the back pay entitlement of an employee

who was removed after having been in an indefinite sus-

pension status for almost two years and was subsequently re-

instated by the decision of a Dispute Resolution Team. The

contract provisions in dispute provide the following:

Article 16 Section 6. Indefinite Suspensions—Crime Situation

A. The Employer may indefinitely suspend an employee in

those cases where the Employer has reasonable cause to be-

lieve an employee is guilty of a crime for which a sentence

of imprisonment can be imposed. In such cases, the Em-

ployer is not required to give the employee the full thirty (30)

days advance notice of indefinite suspension, but shall

give such lesser number of days of advance written notice

as under the circumstances is reasonable and can be jus-

tified. The employee is immediately removed from a pay sta-

tus at the end of the notice period.

B. The just cause of an indefinite suspension is grievable. The

arbitrator shall have the authority to reinstate and make the

employee whole for the entire period of the indefinite suspension.

C. If after further investigation or after resolution of the crim-

inal charges against the employee, the Employer deter-

mines to return the employee to a pay status, the employee

shall be entitled to back pay for the period that the indefi-

nite suspension exceeded seventy (70) days, if the employee

was otherwise available for duty, and without prejudice to

any grievance filed under B above.

Arbitrator Nolan rejected the Postal Service’s position that the

back pay provisions of Article 16.6.C apply only where the

Postal Service unilaterally “determines to return the em-

ployee to a pay status” and not when the employee is re-

turned to work as a result of a grievance settlement or, as in

the case before him, the decision of a Dispute Resolution

Team. He explained his decision as follows:

‘The Employer’ can act in many different ways. Officials

at many different levels may have the authority to make re-

instatement decisions. Any official making such a decision

will necessarily be influenced by a variety of factors including

the nature of the criminal charges, the evidence support-

ing them, the manner of their disposition, arguments and

suggestions from the employee and the Union, the likelihood

of a grievance if the Employer denies reinstatement, and

the prospects for success if such a grievance goes to arbi-

tration. No decision, in other words, is totally unilateral.

Union pressure, actual or potential, is a normal part of the

process. Moreover, any official’s decision is subject to review

in the Postal Service hierarchy and to reconsideration at

any appropriate level. The Employer’s determination can

be totally willing or extremely reluctant, but the presence

of external concerns and pressures will make the decision

no less one by ‘the Employer.’

Whether management makes a reinstatement decision be-

fore or after a grievance is filed thus changes nothing. A de-

cision to reinstate an employee made before a grievance is

filed is a decision by “the Employer,” but so is a reinstatement

decision made after. So, most importantly, is a reinstatement

decision explicitly made to resolve a grievance. A grievance

settlement (at least one that does not purport to limit back

pay under Paragraph C.) is no less a decision by “the Em-

ployer” than any other properly authorized decision.

Membership on the [DRT] teams is not random. To the

contrary, each member serves as a “representative” of a

party. To put it more clearly, the management-appointed

member “represents” the Postal Service while the Union-

appointed member “represents” the Union. Decisions of the

DRT are thus no different from decisions of any other two

representatives who resolve a dispute. That the parties

have allowed their DRT “representatives” to act relatively

independently changes nothing. The Postal Service joined

in stipulating at the hearing that “a DRT decision is the

same as the settlement of a grievance, minus some steps.”

If a formal grievance settlement is a determination by the

Employer, so is a DRT decision.

***

Award: The grievance is sustained. Reinstatement of an em-

ployee pursuant to a Dispute Resolution Team decision re-

solving a grievance over that employee’s removal entitles

that employee to back pay under Article 16, Section 6, Para-

graph C., providing the employee was otherwise available

for duty. The Grievant is therefore entitled to the appropriate

back pay for the period of his emergency suspension ex-

ceeding 70 days, less any earnings he had or reasonably

should have had during that period.

Arbitrator Nolan’s entire award in C-22652 is available

from the NALC Web site at www.nalc.org.

✉

Indefinite suspension

arbitration

CONTRACT ADMINISTRATION UNIT

Ronald G. Brown, Vice President

Jane E. Broendel, Assistant Secretary-Treasurer

Gary H. Mullins, Director of City Delivery

Alan C. Ferranto, Director of Safety and Health

Thomas H.Young Jr., Director, Health Benefit Plan