Tony D. McKinnon Sr.
Awards and Settlements
(01/16/14) In a decision issued Jan. 10, Arbitrator Shyam Das sustained the APWU’s position that full-time employees on the Overtime Desired List (OTDL) must be scheduled for overtime ahead of casual employees on overtime, even if the OTDL employees would earn penalty pay.
(12/05/12) In a ruling issued Dec. 3, Arbitrator Shyam Das sustained the union’s position that Article 14 of the National Agreement, Safety and Health, is “a joint process for addressing safety and ergonomic issues” and that “charging the union for information it reasonably requests in good faith to fulfill its joint role and obligations … is not consistent with the overall structure and tenor of Article 14.” He ordered the Postal Service “to provide information reasonably requested by the union in good faith to fulfill its role and obligations under Article 14 … without exacting payment.”
(08/10/12) Arbitrator Stephen B. Goldberg ruled on Aug. 1 that employees represented by the APWU who transfer to or are excessed into non-APWU crafts may not carry the protection against layoffs they have earned under the APWU Collective Bargaining Agreement to their new crafts. Career employees in all crafts currently earn lifetime protection against layoffs after six years of “continuous service,” but all career employees represented by the APWU enjoy protection against layoffs, regardless of their length of service — provided they were on the rolls as of Nov. 21, 2010.
(07/26/12) The APWU and USPS have reached agreement on implementation of an arbitration award on retreat rights for Clerk Craft and Motor Vehicle Craft employees, Industrial Relations Director Mike Morris has announced. In an award issued June 29, Arbitrator Shyam Das sustained the APWU’s grievance protesting the Postal Service’s refusal to allow excessed employees to retreat to Non-Traditional Full-Time (NTFT) duty assignments that were posted in August 2011 after approximately 9,000 part-time flexibles and part-time regulars were converted to full time.
(07/02/12) In an award issued June 29, Arbitrator Shyam Das sustained the APWU’s grievance over the denial of excessed employees’ retreat rights, but denied it in a dispute over the assignment of unassigned regulars to non-traditional full-time (NTFT) schedules. The issue in the first case was the USPS’ refusal to permit excessed employees to retreat into NTFT duty assignments posted for bid subsequent to the conversion of part-time regulars (PTRs) and part-time flexibles (PTFs) in August 2011.
(06/08/12) The APWU and USPS have reached an agreement that will preserve Maintenance Craft duties for employees in the craft, Maintenance Director Steve Raymer has announced. The June 8 agreement stipulates that opening of the DBCS-EC machine stacker panel doors to clear jams, etc. should remain the duty of the Maintenance Craft.
(04/05/12) On March 28, the APWU reached a Step 4 settlement with the Postal Service that requires management to better protect employees’ privacy when workers report accidents. The dispute arose when the union learned that the USPS had replaced the paper version of the Accident Report form (PS Form 1769) with an electronic version of the document, e-1769.
(03/30/12) The APWU and the Postal Service settled a Step 4 grievance [PDF] on March 30 regarding the use of Postal Support Employees (PSEs) in the Maintenance Craft. The settlement stipulates that PSEs will only be used in custodial positions.
(10/13/10) In a recent national-level arbitration award by Arbitrator Byars on the remedy for depriving part-time flexible employees of the Annual Leave Exchange Option (ALEO), the arbitrator granted the union a remedy in an amount equal to interest, at the Federal Judgment Rate, on what the Postal Service would have paid to 26% of eligible PTF employees for each year they were excluded from the ALEO benefit.
(07/29/10) Arbitrator Das denied the union’s grievance challenging the Postal Service’s two-tour initiative. Das accepted the Postal Service’s argument that “Article 3 of the National Agreement grants the Postal Service the authority to unilaterally adopt and implement the ... initiatives at issue, without further bargaining with the Union.” He cited language in Article 3 that states the Postal Service “‘shall have the exclusive right’ to ‘assign … employees,’ to ‘maintain the efficiency of the operations entrusted to it’ and to ‘determine the methods, means, and personnel by which such operations are to be conducted.’” Das also cited a 1977 national award in which Arbitrator Garrett stated that the Postal Service isn’t obligated “to engage in ‘collective bargaining’ as to whether or how it should exercise its authority under Article III of the National Agreement.” In addition, he referred to a 1973 national award in which Arbitrator Gamser stated that the right to change tour complements “appear[s] [to be] specifically reserved to Management under Article III of the Agreement as well as dictated in enabling legislation, Section 1001 of the Postal Reorganization Act.” (USPS #Q06C-4Q-C 09051867; 7/27/2010)
(05/12/10) In a recent national arbitration award, Arbitrator Linda Byars rejected management's claim that our dispute over Contract Postal Units wasn't required to be placed on the national arbitration docket using the date the original grievance was appealed in accordance with the parties' 2004 MOU "Re: Review of Pre-1998 Grievances Referred or Appealed to the National Level." She specifically ruled that the grievance should be placed on the national arbitration docket with the original appeal date of March 16, 1995, rather than the date of our subsequent appeal to arbitration involving the same grievance.
(02/24/10) In a recent national award regarding the APWU's challenge to management's subcontracting of Associate Office Infrastructure (AOI) installation and maintenance work. Arbitrator Das sustained the APWU's grievance and ruled that management violated Article 32.1.B by not giving the union an opportunity to meet with it regarding AOI installation and maintenance work involving cabling and AOI servers. Das ordered that the Postal Service assign maintenance of "AOI servers -- to the extent they remain in operation -- and the LAN cabling within the AOs to the maintenance craft." In addition he directed that the parties discuss "the possibility of additional LAN maintenance work in the AOs being assigned to the bargaining unit." With regard to a retroactive remedy, Arbitrator Das ordered that the issue be returned to the parties for discussion of a remedy. The arbitrator retained jurisdiction if the parties are unable to agree on a retroactive remedy. (USPS #Q94T-4Q-C 97031616).
(01/14/10) In a recent national award regarding APWU's Article 19 appeal of MMO-028-97, Arbitrator Das ruled that "[t]he union's appeal of MMO-028-97 on the grounds that it is not fair, reasonable, and equitable for purposes of Article 19 is denied." It should be noted, however, that Arbitrator Das emphasized that "to the extent custodial positions covered by the MS-47 are a component of a facility's 'authorized complement,' the requirements of MS-47 must be followed."
(11/18/09) In a recent National Association of Letter Carriers’ (NALC) national arbitration award, Arbitrator Shyam Das ruled that “[t]he provision in Article 12.5.C.5.a (2) for ‘separation of all casuals’ applies to casuals in the affected or losing craft, and not to casuals in other crafts.” (USPS # Q94N-4Q-C 99052344, 11/11/2009) This case arose after the NALC initiated a grievance regarding the meaning of the term “all casuals” in Article 12.5.C.5.a.(2) of the 1994-1998 National Agreement. The APWU and the Mail Handlers Union intervened in this case since our contracts contain the same provision.
(11/17/09) A recent national arbitration award by Arbitrator Linda Byars found that the Postal Service does not have an obligation to combine the hours of all non-full-time employees, i.e. part-time regular, part-time flexible, transitional and/or casual employees, as well as the regularly scheduled overtime hours of full-time employees, in order to maximize full-time positions pursuant to Article 7.3.B of the National Agreement. The arbitrator found that this provision “applies only to the relationship between full-time employees and part-time employees with no fixed work schedule.” (USPS #Q94C-4Q-C 96096822 and 96096823, 11/11/2009.
(09/22/09) On September 21, 2009, the APWU and the Postal Service reached a pre-arbitration settlement over a dispute concerning management’s responsibility to provide individual retirement counseling for employees. In 2007, the Postal Service centralized its individual retirement counseling process by conducting such counseling primarily by phone utilizing retirement specialists at the Human Resources Shared Services Center (HRSSC). The intent of the change is that postal employees receive consistent information and retirement processing nationwide. The settlement provides that local management must arrange reasonably private space for employees who wish to have individual retirement counseling on the clock. The employee is also entitled to have their spouse and/or advisor present during this process. In addition, employees who cannot begin or complete the process of obtaining counseling from HRSSC without assistance have to be offered assistance by local management. Whether an employee is unable to start or complete the retirement counseling will be determined jointly by local management and the local union on a case-by-case basis.
(06/04/09) In a recent national arbitration award, Arbitrator Shyam Das ruled that the Postal Service was not required to provide Article 19 notice to the union before implementing a 1998 Vehicle Maintenance Bulletin (VMB) that included Estimated Repair Times (ERTs), but sustained the Union's position that the ERTs in the VMB cannot be used to discipline employees, evaluate work performance, gauge work pace, or to require employees to document the reasons for exceeding ERTs "as a matter of course."
(03/26/09) Arbitrator Das, ruling in an NALC grievance in which the APWU intervened, ordered the Postal Service to rescind changes agreed to by the APWU and the USPS in a 2006 MOU "Re: Limited Duty and Rehabilitation Assignments Within APWU Crafts Involving Workers from Other Crafts." The MOU provided that the reassignment or reemployment of an employee injured on duty was required to be "accomplished through Article 13 of the National Agreement applicable to the craft to which the employee is being reassigned." The NALC objected that the change would adversely affect language in Article 13 of the NALC agreement, and that the Postal Service could not make these changes without negotiating with the NALC.
(01/26/09) In a national-level award over the validity of a USPS Step 2 grievance decision letter issued after the grievance has progressed to Step 3, Arbitrator Dana Eischen sustained the Mail Handler Union's position that the decision letter has no validity under the last sentence of paragraph 2 of Article 16.5 of the USPS/NPMHU agreement. Though this was a Mail Handler grievance, the APWU intervened because we have a similar dispute pending national-level arbitration. Though the arbitrator did not rule on the precise issue involved in the APWU's grievance, the award will enhance our case should it be necessary to go to arbitration.
(12/03/08) In a national-level award, Arbitrator Shyam Das has ruled that Tour 1 casuals may continue to work past 5 a.m., concluding that the intent of the 2006-2010 Collective Bargaining Agreement is to prevent management from assigning casuals starting times between the hours of 5 a.m. and noon.
(12/02/08) In a national-level arbitration award, Arbitrator Linda Byars sustained the union's grievance protesting management’s decision to exclude part-time flexibles (PTFs) from the negotiated Annual Leave Exchange program.
(10/30/08) In a recent national-level arbitration award, arbitrator Dennis Nolan ruled that certain form letters that the Postal Service planned to use when employees seek family and medical leave violate the Family and Medical Leave Act (FMLA). The arbitrator ordered the Postal Service to revise the form letters as necessary to comply with the law.
(09/11/2007) Arbitrator Linda Byars denied the APWU's grievance challenging the Postal Service's regulations and implementing instructions for the administrative inspection of vehicles entering non-public areas of postal property. Specifically, she found that the regulations and the implementing instructions do not violate the National Agreement (Article 20, Parking) which "recognizes the Postal Service's responsibility and right to 'take reasonable steps, based on the specific needs of the individual location, to safeguard employee security.'"
(06/08/07) The APWU and the Postal Service agreed recently in a pre-arbitration settlement that management shall rescind the EEO Complaint Processing Handbook (EL-603). This case involved an Article 19 dispute over the handbook that contained the procedures for providing pre-complaint counseling and processing Equal Employment Opportunity complaints. The APWU’s position was that various provisions in the handbook conflicted with EEO regulations.
(06/06/07) This is a pre-arbitration settlement over whether employees are entitled to severance pay when they elect early retirement in accordance with Article 6, Section B. 4 of the National Agreement. The settlement sustains the APWU’s position and provides that, in the event employees elect to terminate their employment before implementation of reassignment under Article 6 or, if necessary, layoff and reduction in force of excess employees within an installation, they are entitled to severance pay in addition to early retirement benefits, if eligible, in accordance with Section 8336(d)(2) of Title 5, U.S. Code.
(05/18/07) The issue in this case concerned whether it is a violation of the National Agreement for the Postal Service to give a contract for a "Contract Postal Unit (CPU)" to a contractor who doesn’t own the property or facility where the CPU is being established. In the pre-arbitration settlement, the Postal Service agreed that it will comply with the requirements of Handbook AS-707F, which defines a CPU as “a contractor-owned and operated facility, under contract to the Postal Service and under the jurisdiction of an administrative Post Office.”
(02/09/07) A national arbitration award by Arbitrator Das regarding terminations initiated because of administrative errors in the hiring process discovered after the employees’ probationary periods ended. Das concluded that ELM 365.311 applies to the separations at issue. He ruled that a “removal under ELM 365.311 must be ‘for cause.’ If it is disciplinary in nature, it is subject to the ‘just cause’ standard in Article 16. But even if non-disciplinary, the Postal Service must carry the burden of establishing ‘cause’ to remove an employee who has completed the probationary period.”
(02/09/07) Arbitrator Linda Byars denied the APWU’s grievance over the Postal Service’s closing of medical/health units in postal facilities. Arbitrator Byars found that there was no showing by the union that closing medical/health units violated the “terms and of the Agreement.” “To the contrary,” she concluded, “the contractual language of Article 14, as well as the bargaining history, shows that the Parties bargained with respect to the obligations under Article 14, and the Postal Service retained the discretion to decide the source of health services.”
(01/12/07) In this award, Arbitrator Das denied the APWU's position that his Sunday Premium Award (see Union Wins Another Sunday Premium Case below) should be applied retroactively to all employees on a nationwide basis. He concluded that “the holding in the Sunday Premium Award applies prospectively to all bargaining unit employees, but that only those employees who had filed a timely grievance (or on whose behalf such a timely grievance had been filed by a local union) are eligible for retroactive payment.”
(12/09/06) In a recent national-level award, Arbitrator Linda Byars ruled that the ELM 460 provision allowing for collection of postal debts by the Postal Service in increments greater than 15% of an employee’s disposable pay or 20% of the employee’s biweekly gross pay per pay period (whichever is lower) violates the Memorandum of Understanding on debt collection and Article 28.4.B of the National Agreement.
(12/09/06) In another recent national-level award, Arbitrator Shyam Das sustained the union's challenge to management's revisions to the custodial staffing handbook (MS-47) and ordered the Postal Service to rescind the 2001 MS-47 Handbook, reinstate the previous (1983) MS-47 Handbook, and reinstate or prepare staffing packages as soon as practicable.
(07/18/06) The issue in this case (#Q98C-4Q-C 01059241) was whether management’s use of attendance control supervisors to issue discipline for attendance-related offenses violates the National Agreement. Arbitrator Das ruled that “the Unions [APWU and NPMHU] have not established that issuance of discipline by attendance control supervisors is precluded by Article 16.8 or other sections of the National Agreement, provided such an exercise of management authority is administered consistent with other applicable provisions, as discussed in this opinion.”
(07/04/06) Arbitrator Linda Byars sustained the union's position that in order to make moot the union's appeal to arbitration of a proposed revision to a regulation which the Postal Service does not intend to implement, the Service is required to notify the APWU that it is withdrawing the proposed revision.
(06/22/06) This settlement (case #Q94C4QC96092498) rescinds a proposed revision to Handbook F-1 (Accounting Procedures) Section 473.12 which would have provided that "Employees cannot grieve or request a hearing for salary or travel advances."
(06/22/06) This settlement (case # Q00C4QC05027011) provides that the draft Staffing and Grade Criteria Handbook is not a handbook, manual or published regulation with the force and effect pursuant to Article 19. As a result, this handbook cannot be considered an authority on which management can rely in interpreting and enforcing the national agreement.
(02/02/06) This settlement (case #H0C-NAC 19002) reinstates the language of Section 716.123 of the ELM that existed prior to 1991, which permits intermediate travel (for employees on an extended duty assignment) to a location other than the employee's permanent duty station when authorized in advance by the employee's management.
(01/27/06) This is an NALC case in which the APWU intervened. The issue was whether the Postal Service's failure to pay Territorial COLA (TCOLA) as part of the promotion pay anomaly payments due under the June 13, 1990 Memorandum of Settlement of case number H7C-NAC-39 was a violation of that settlement. Arbitrator Das ruled that ongoing anomaly or ABC lump-sum payments made in accordance with that agreement include TCOLA. Please note that the APWU and the Postal Service agreed to changes in the National Agreement in 1999 that eliminated the pay anomaly for APWU bargaining unit employees.
(09/30/05) Arbitrator Das sustained in part, denied in part and remanded in part the APWU's grievances challenging three Maintenance Management Orders (MMOs) regarding preventive maintenance guidelines for the Delivery Bar Code Sorter (DBCS), Multi-Position Flat Sorting Machine (MPFSM), and the Identification Code Sort (ICS).
(07/05/05) An employee's time on LWOP for union business does not count toward the 1,250 hours of service required for eligibility under the Family and Medical Leave Act (FMLA), according to this national-level award by Arbitrator Das.
(05/03/05) In another significant win for the union, an arbitrator has ruled that the Postal Service must grant Sunday premium pay to employees who work on Sunday, even if the work is the result of an employee's request for a temporary change of schedule for their own personal convenience.
In an award issued Jan. 28, 2005, Arbitrator Shyam Das sustained the APWU's arguments on two of three outstanding issues in a significant attendance case. Arbitrator Das said that the Postal Service may not require an employee to describe the nature of an illness or injury during a phone call to report an absence from work. He also ruled that the USPS policy on second and third medical opinions is inconsistent with the Family & Medical Leave Act and the National Agreement.
The arbitrator found that management is not in violation of the FMLA, however, when it requires medical evidence for absences of more than three days in instances in which an employee makes a request to substitute paid sick leave for unpaid intermittent FMLA leave.
This settlement clarifies the procedures to be followed when one or the other party at the national level determines that a regional grievance is the same as, or similar to, a pending national dispute.
A national-level award by Arbitrator Das on the
issue of "whether consistent with the exception in Article 1.6.B of the National Agreement ... a supervisor at a small post office, whose position description includes the performance of bargaining unit duties, may continue to perform those duties historically performed by a supervisor at that office on a daily, regular or routine basis, where there has been no shift or transfer of work or change in the amount of such duties performed
by the supervisor.”
This settlement concerns the Postal Service’s creation of an electronic database to replace the Handbook EL-303, “Qualification Standards – Bargaining Unit Positions.” The electronic database is called BQnet. The settlement requires the Postal Service to provide the union with a current electronic copy of BQnet twice a year for uploading to an APWU web server.
A pre-arbitration settlement (USPS #Q98C-4Q-C 00165413 and Q98C-4Q-C 00152463) reversing changes to the Employee and Labor Relations Manual (ELM) that eliminated the payment of Sunday premium for hours not actually worked, including payment of Sunday premium to employees in a continuation of pay (COP) status, or on court or military leave. This document includes a copy of the Postal Service’s internal instructions to its field managers for action that must be taken at the district level to identify employees entitled to Sunday premium pursuant to the settlement.
A national level award sustaining the APWU’s challenge to 1994 changes in the Driver Instructor and Examiner (DIE) Qualification Standard. (USPS #Q90V-4Q-C 95004852; 4/13/2004)
A pre-arbitration settlement (USPS #Q98C-4Q-C 01005505) concerning the Postal Service’s Resource Management Database (RMD) and its web-based enterprise Resource Management System (eRMS). This settlement resolves many of the issues related to RMD/eRMS, including Privacy Act issues, multiple call-in requirements, medical documentation to protect the interests of the Postal Service, and fixed numbers for triggering discipline. The remaining unresolved issues, specifically: management’s right to request the nature of the illness when an employee calls in, FMLA second/third opinion procedures, and medical documentation requirements to substitute paid leave for unpaid intermittent FMLA leave have been appealed to national arbitration.
A national-level award by Arbitrator Das on the Postal Service’s use of temporary agency employees. The arbitrator ruled that Article 7.1 .B does not prohibit the Postal Service from using “Kelly Girls” or other similar-type temporary agency employees as a supplemental work force, provided they are counted as casuals and are subject to the limits on employment of casuals set forth in Article 7.1 .B. (USPS #Q90C-6E-C 94046800; 1/31/2003)
A National Rural Letter Carriers Association (NRLCA) award in which the arbitrator found that Article 16.6 of the USPS-NRLCA National Agreement, which is not materially different from Article 16.8 of the USPS-APWU National Agreement, is violated “if there is a ‘command decision’ from higher authority to impose a suspension or discharge”; “if there is a joint decision by the initiating and reviewing officials to impose a suspension or discharge”; or “if there is a failure of either the initiating or reviewing official to make an independent substantive review of the evidence prior to the imposition of a suspension or discharge.” The arbitrator ruled that these violations are “fatal” and “invalidate the disciplinary action and require a remedy of reinstatement with ‘make-whole’ damages.”
An award by Arbitrator Shyam Das sustaining the APWU’s grievance over the Postal Service’s improper use of casuals in lieu of career employees. (AIRS #36175 - USPS #Q98C-4Q-C 00100499: 8/29/01). The arbitrator ruled that the Postal Service may only employ (hire) casual employees to be utilized as a limited term supplemental work force and not in lieu of (instead of, in place of, or in substitution of) career employees.