Tony D. McKinnon Sr.
Non-Compliance a Persistent Problem
Greg Bell, Director
(This article appeared in the November/December 2008 issue of The American Postal Worker magazine.)
Postal Service non-compliance with arbitration awards and grievance settlements is a persistent problem in some areas of the country. One of the responsibilities of the APWU Industrial Relations Department is to deal with non-compliance issues, and to take appropriate action when management fails or refuses to comply with an award or settlement.
What is Non-Compliance?
The Postal Service’s failure and/or refusal to comply with an arbitration award or grievance settlement constitutes non-compliance and should be referred to Industrial Relations for review to take appropriate action, including filing a suit to enforce, if necessary.
It should be noted, however, that not all disputes over the implementation of an award or settlement constitute non-compliance. For example, if an award or settlement is vague, or leaves it to the parties to determine the appropriate remedy or the amount of a remedy, management’s failure to comply or agree with the union’s interpretation is not considered noncompliance; it more accurately can be considered – and pursued – as a new dispute.
In general, most arbitration awards or grievance settlements are clear and unambiguous. However, in the case of an arbitration award where the remedy – or any part of the remedy – is remanded to the parties and they cannot reach an agreement, further clarification from the arbitrator or the filing of a grievance over the parties’ differences may be necessary. In some cases where the arbitrator remands the remedy to the parties, he or she may retain jurisdiction in the event of a dispute. If the arbitrator has retained jurisdiction, either party can go back to the arbitrator for clarification or to request a further ruling on the remedy. If the arbitrator has not retained jurisdiction, and the parties cannot mutually agree to seek clarification, it may be necessary to file a new grievance.
The difference between non-compliance and a dispute over the terms of an award or settlement highlights the importance of a clear and unambiguous remedy.
Requests ‘To Vacate’
The Industrial Relations Department periodically receives requests seeking to vacate an arbitration award. Whether or not we seek to vacate an award is based on our understanding of the legal principles established by the courts and by federal and state laws.
The courts grant wide latitude to arbitrators to weigh testimony and evidence as they see fit, provided their decisions are based on the collective bargaining agreement and the facts presented to the arbitrator, and provided they resolve the issue presented by the parties. A court will not vacate an award simply because it does not agree with the arbitrator’s reasoning or findings or even if it the arbitrator has made factual or legal errors.
Finally, a court of law will not vacate an arbitrator’s award unless a clearly enunciated public policy has been violated or the award does not draw its essence from the collective bargaining agreement.
It is extremely difficult to prevail in a suit to vacate.
Medical Exam ‘Time Spent’ Dispute
The union recently appealed to national-level arbitration a dispute over the Postal Service’s failure to compensate employees for time spent at medical appointments that were made at the employer’s request.
The Postal Service has been requiring employees to undergo medical evaluations or examinations related to serious health conditions covered under the Family and Medical Leave Act during their regularly scheduled hours, without paying employees for their time. Such employees have been required to use either annual or sick leave, or be in a leave-without-pay status.
It is the APWU’s position that time spent at a medical appointment made at the employer’s request constitutes “hours worked,” regardless of whether it takes place during normal work hours, outside normal work hours, or on non-scheduled work days. Employees covered by the APWU-USPS Collective Bargaining Agreement are entitled to be paid for the time they spend undergoing management- requested evaluations and examinations, along with travel expenses.
The Postal Service agrees that a second and third opinion is at the Postal Service’s expense, including travel expenses. However, the Postal Service disagrees that employees are entitled to be compensated for all time spent undergoing a second/third opinion exam or recertification. Relying on the FMLA, the Postal Service contends that the time spent by the employee getting a second or third opinion is unpaid unless the employee is using their sick or annual leave. Moreover, employees may use available paid leave if the appointment must be during their tour of duty. In addition, the Postal Service contends that FMLA recertification required by the Employer is at the employee’s expense.
However, it the APWU’S position that an employee covered by the Collective Bargaining Agreement is entitled to be compensated for all time spent undergoing a medical evaluation or examination regardless whether it is related to a serious health condition covered under the FMLA. Employees’ entitlement to compensation for all time spent undergoing a medical evaluation or examination under the Collective Bargaining Agreement is greater than those established by the FMLA. Although an employee may not be entitled to compensation for the time spent undergoing a medical evaluation or examination requested by the Employer under the FMLA, such employees are entitled to payment under the Collective Bargaining Agreement between the parties. Moreover, the FMLA requires that the Postal Service must observe any employee’s rights greater than the rights established by the FMLA.
Pending the outcome of this national-level interpretive dispute, individual grievances should be filed. It is important that an individual grievance be filed whenever there is a failure to compensate an employee for time spent undergoing an employer-requested medical evaluation, including travel time.
If you find this situation applies to you, see your steward on the work floor about initiating a grievance on your behalf.
APWU Representatives Gain Access to
The APWU has reached agreement with the USPS on granting state and local union representatives direct access to PolicyNet, the portion of the USPS intranet (Blue) that contains handbooks, manuals, Management Instructions, policy memorandums, forms, notices, and PVS orders and bulletins. The agreement is a result of discussions related to implementing the Memorandum of Understanding on “Electronic Access to Information,” which is part of the 2006-2010 National Agreement.
Every certified APWU representative is now authorized to be granted access to PolicyNet; to do so, union representatives must complete an “APWU Representative Request for PolicyNet VPN Access” form. The form and background information are available at www.apwu.org. Access granted as a result of this agreement provides access to PolicyNet only, and only from external (nonpostal) computers.
As the Postal Service moves more and more in the direction of electronic record-keeping, the agreement gives the APWU greater access to the records necessary to process grievances or to determine whether a grievance exists.