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(This article was first published in the March/April 2006 issue of The American Postal Worker magazine.)

Military-Leave Dispute Centers
On Back Pay for Non-Workdays

Greg Bell, Director
Industrial Relations

Several local leaders and members have inquired recently about whether the Postal Service intends to comply with a 2003 federal Circuit Court decision that overturned the government’s longstanding practice of charging employees “military leave” for non-workdays spent training in the armed forces. At issue is whether postal workers are entitled to back pay.

Unfortunately, management has taken the position that the court decision does not apply to the Postal Service, and therefore, it does not intend to grant back pay. The APWU disagreed, and a formal dispute is now pending national- level arbitration.

In addition to the national-level arbitration, however, affected members may wish to assert their individual rights to back-pay by filing an appeal with the Merit Systems Protection Board (MSPB) and not rely solely on the outcome of a national-level dispute. For information on how to file an MSPB appeal, please visit the MSPB Web site, at www.mspb.gov.

Rooted in Anti-Discrimination Law

The Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA), prohibits discrimination against federal employees, including employees of federal agencies and the U.S. Postal Service, who perform service in the armed forces. Among other things, the law specifically prohibits the denial of any benefit of employment on the basis of an employee’s military service.

Title 5, Section 6323, of the U.S. Code grants federal employees who are in the National Guard or the armed forces reserves up to “15 days” of paid military leave – but it does not specify whether the military leave should be counted as 15 calendar days or 15 workdays.

The federal government traditionally interpreted the term “15 days” as 15 calendar days. If, for example, an employee regularly worked Monday through Friday and was required to attend military training from one Friday through the next, the employee – who missed only six workdays – was charged eight days of military leave. An employee who exceeded the 15 calendar-day limit of paid military leave was charged annual leave or leave without pay.

Although Title 5, Section 6323, of the U.S. Code does not apply to postal employees, USPS regulations reflected this same practice.

In July 2003, based on an appeal of a decision made by the Merit Systems Protection Board (MSPB), the U.S. Court of Appeals for the Federal Circuit overturned the government’s longstanding practice.

In Butterbaugh v. Department of Justice , the court clarified how paid military leave should be calculated, ruling that the term “15 days” as it appears in Title 5 of the U.S. Code, should be interpreted as 15 workdays rather than 15 calendar days. The court ruled that agencies should not have charged military leave for non-workdays, but rather that military leave should have been charged only for those days on which the employees would have been required to work at their agencies. (Although the appeals court reversed the MSPB decision, it remanded the case to the MSPB for further proceedings.) (336 F.3d 1332 [Fed. Cir., 2003])

Back Pay

Subsequent to the Butterbaugh decision, the Director of the Office of Personnel Management (OPM) issued a memorandum recommending that federal government agencies award back pay to affected employees in accordance with the court ruling. The memo provides that back pay should be processed for both active employees and for those who have since left government service for other jobs or are retired.

OPM’s guidance directed agencies to allow claims going back only six years. But in a series of decisions (the first issued last summer), the MSPB ruled that affected employees could file claims for back-pay for military leave as far back as October 1994, when USERRA became law ( Lee v. Dept. of Justice , 99 MSPR 256; July 15, 2005 ).

The MSPB later held that it could consider pre-USERRA violations of the U.S. Code in the context of a USERRA appeal ( Collins v. Dept. of Agriculture , 2005 MSPB Lexis 7117; Nov. 18, 2005 ). The federal government has appealed this most recent ruling, however, and is requesting review by the full Merit Systems Protection Board.

Non-Workdays Don’t Count

The Postal Service takes the position that it is not obligated to comply with the Butterbaugh ruling because the decision interpreted the meaning of a particular U.S. Code and does not specifically apply to the Postal Service. But at the same time, the Postal Service claims that in 2002, while “anticipating the Butterbaugh decision” it changed USPS policy with respect to its leave allowance for military leave, so as not to count non-workdays against the allowance when those days falls within a military leave period.

Specifically, the Postal Service contends that prior to March 21, 2002, Section 517.53 ( Leave Charge for Non- Workdays ) of the Employee and Labor Relations Manual (ELM) regulated the payment of paid military leave on an employee’s non-scheduled postal-duty days. And on that same date, the Postal Service eliminated Section 517.53, thereby changing the policy that counted non-scheduled workdays against a postal employee’s paid military leave balance. (Ironically, the USPS retained language in Section 517.41 of the ELM which states that an employee is entitled to as many as “15 calendar days” of paid military leave.)

The APWU believes that the effect of the Butterbaugh decision is not nearly as narrow as the Postal Service claims. As the court explained, “the question at the heart of this case” was “whether an employee must be answerable to the government at all for time that he or she is not required to work.” The Court held that, “as a general matter, employees are not accountable to their employers for the time they are not required to work. We see no reason why federal employees need military leave for days on which they are not scheduled to work.”

Therefore, although the U.S. Code may not specifically apply to the Postal Service, under Butterbaugh any similar government regulation that can be interpreted to allow the charging of paid military leave for non-workdays is equally prohibited. Because the language found in ELM 517.41 reflects the very same practice that was overturned by the Court in Butterbaugh, it is our position that the same reasoning applied in Butterbaugh would apply to the Postal Service’s practice of charging paid military leave for nonworkdays spent by an employee away on military training.

In sum, the APWU maintains that postal employees who have been charged paid military leave for non-workdays spent in military training are entitled to compensation for all lost time and benefits. The APWU also contends that the Postal Service should change the language of Section 517.41 of the ELM to say “15 workdays” instead of “15 calendar days.”

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