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(This article was first published in the July/Aug 2005 issue of The American Postal Worker magazine.)

Another Sunday Premium Dispute Win

Greg Bell, Director
Industrial Relations

In a 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 a request for a temporary change of schedule for the employee’s own personal convenience.

The ruling is one of several recent union victories on the issue of Sunday premium pay. In 2000, the Postal Service attempted to deprive employees of Sunday premium pay by unilaterally changing their regulations to eliminate the payment of Sunday premium to employees in a continuation of pay (COP) status, or on court or military leave. However, a March 15, 2004, pre-arbitration settlement required management to rescind the changes and pay affected employees the premium pay they were denied.

Who’s Minding the Schedule?

The most recent case arose after the Minneapolis Area Local filed a grievance over a management posting that stated that premium pay would not apply if work performed on Sunday was “due to a temporary schedule change at the employee’s request.”

To justify the decision, the manager cited Section 434.31(c) of the ELM (Employee & Labor Relations Manual), a provision first included in ELM Issue 11 (Oct. 7, 1988) and included again in ELM Issue 12. That language was later removed from ELM Issue 13 in accordance with a 1992 pre-arbitration settlement of grievances protesting the changes to ELM Issues 11 and 12.

The Minneapolis grievance was eventually appealed to Step 4 under the pre-1998 grievance procedure. At Step 4, the Postal Service asserted that the language change regarding Sunday premium “was made as a matter of clarification, and was not intended to change existing policy” and that by its agreement to delete such language, it did not “concede any change in its interpretation of the section.” The case was subsequently appealed to national-level arbitration.

At the hearing, the APWU argued that any employee requesting a temporary schedule change for personal convenience must complete a PS Form 3189, which waives only out-of-schedule premium pay – not Sunday premium pay.

The Postal Service countered with testimony by a headquarters payroll accountant. Citing his practice while working at a district headquarters, the accountant indicated that his understanding always was that employees are eligible for Sunday premium only if they work on a Sunday as part of their assigned schedule or bid assignment. The accountant did agree, however, that a “regular work schedule” within the meaning of Article 8.6 also includes temporary assignments dictated by management, and the weekly schedule posted by management for part-time flexible employees.

Another headquarters accountant testified that the Article 8.6 phrase “regular work schedule” means specifically the bid schedule for full-time regular employees and the schedule given at the beginning of the week for flexible regular employees. For part-time flexible employees, this witness said, the phrase refers only to the hours per day they are given to work.

Two Key Factors

The APWU argued that Article 8.6 cannot be interpreted as allowing exceptions when employees work as a result of Postal Service approval of the employee’s request for a schedule change. The union has always asserted that Article 8.6 entitles an employee to Sunday premium if two factors exist: (1) management schedules the employee to work; (2) the employee actually works on a Sunday. The union also asserted that the Postal Service had failed to establish that the policies as interpreted by the payroll accounting witnesses were actually followed in the field. oreover, the union argued that the “regular work schedule” in Article 8.6 has to be read “in context” and thus refers to the “non-overtime hours in an employee’s schedule that fall during a Sunday.” Furthermore, the legislative history of the Federal Employees Salary Act of 1965, which Arbitrator Das concluded was the source of Article 8.6 language adopted in the first APWU contract (1971), clearly supports this interpretation.

F-21 Language

Management’s contention that its policies are in accordance with Article 8.6 is also countered by language in the F-21 Handbook, which allows flexible employees that do not have regular or fixed work schedules to be eligible for Sunday premium.

Finally, the APWU argued that before ELM Issue 11 was published in 1988, there was no written policy indicating that employees who requested a temporary schedule change for personal convenience were exempt from Sunday premium.

“If the only employees eligible for Sunday premium pay under Article 8.6 were employees with fixed bid schedules,” wrote Arbitrator Das, “the Postal Service’s argument that this is the clear or plain meaning of the words ‘regular work schedule,’ as used in that provision, might have considerable appeal.”

However, “even the Postal Service acknowledges that the term ‘regular work schedule’ in Article 8.6 does not necessarily mean recurring or fixed or bid – as the term ‘regular schedule’ evidently does on Form 3189 on which out-of schedule premium is waived by full-time regular employees – but rather it encompasses a variety of schedules directed by management.”

Accordingly, Das determined that “it was necessary to look beyond the wording of Article 8.6 to resolve this dispute.”

Das observed that evidence of past practice regarding how Article 8.6 was applied since 1971 “is mixed and far from conclusive.” Further, he wrote, “There simply is no way on this record to determine the extent to which the contrary postal policy described by management witnesses was applied in other offices.”

Das relied instead on ELM Section 434.32 and Section 242.21 of the F-21 Handbook, which say that “only those employees who have been scheduled to work on a Sunday are eligible to receive the premium.”

Absent Any Reference

“Particularly in light of this stress on the employee having to be ‘scheduled’ to work on a Sunday, without other qualification,” Das wrote, “the absence of any reference in the ELM or Handbook F-21 to ‘regular’ schedule – in the sense of fixed or bid – or to employees not being entitled to Sunday premium if scheduled on Sunday pursuant to a request for a temporary schedule change is striking.”

Das then concluded that the record does not establish that Postal Service witnesses’ interpretation of Article 8.6 constituted what the parties had agreed to in adopting that provision in 1971 and does not show that their interpretation was an established past practice when the grievance arose in 1990. He thus sustained the unions’ position in this case.

We are currently in discussion with the Postal Service regarding implementation of this award, including the issue of compensation for employees who were improperly denied Sunday Premium pay. More information will be provided as it becomes available.

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