A Significant Step Forward for Remedies
(This article first appeared in the July-August 2017 issue of The American Postal Worker magazine)
By Clerk Craft Directors
The APWU took a significant step forward in holding the Postal Service accountable for violations of the Collective Bargaining Agreement (CBA), as a result of Arbitrator Stephen Goldberg’s award in the dispute regarding the Memorandum of Understanding (MOU) on Clerk Craft jobs.
The decision provides a remedy for all employees harmed when the Postal Service fails to post duty assignments in a timely manner. As a national award, this ruling can be applied to all crafts in similar situations, such as the reversion (elimination) of a vacant duty assignment.
The dispute was in regard to the proper remedy when the Postal Service failed to provide the 800 administrative and technical jobs promised in the 2010 contract, as part of the Clerk Craft Jobs MOU. The USPS did transfer some work performed by Executive and Administrative Staff (EAS) employees to the Clerk Craft by providing the Mail Flow Controller and the Address Management Systems jobs in 2013; however, they then failed to provide the remaining 362 jobs.
The USPS kept telling the APWU that the remaining jobs were forthcoming all the way up to the day of the arbitration. During the arbitration proceedings the USPS made the amazing argument that management officials in the operations department told them there were no jobs available, and if there were any, they would be going away soon.
However, despite the USPS argument that suddenly there are no longer administrative and technical jobs available, evidence provided by the APWU showed an increase in the number of these jobs performed by EAS employees – and a reduction in those same types of jobs performed by Clerk Craft employees – over the same time frame.
The arbitrator ruled that the USPS should have complied with the award no later than August 2013, and therefore back pay will start from then until the USPS posts the jobs.
Following the award, the USPS identified 362 administrative type jobs which should be posted for bid in the near future.
It is the remedy for the failure to post those jobs by August of 2013 that is most important moving forward. In the past when the Postal Service failed to post a duty assignment in violation of the CBA, a common remedy was out-of-schedule pay for the employee who ultimately was the successful bidder on the job after it was eventually posted. That remedy did not capture the harm to other employees who would have moved up to more desired jobs.
Moreover, the standard remedy was not strong enough to discourage the Postal Service from violating the CBA. USPS was making a calculated decision that it was in their interest to violate the CBA, partly because locals did not file grievances each time it was warranted. Even when the APWU grievance was successful, the standard remedy was not enough of a deterrent for the Postal Service.
In his award, Arbitrator Stephen Goldberg explained employees directly or indirectly affected by the Postal Service’s failure to comply with the MOU “Subject: Clerk Craft Jobs” were entitled to relief:
“One group of employees clearly affected by the Postal Service failure to comply with the MOU consists of those who would have successfully bid on one of the 362 administrative or technical positions at the time that position should have been filled. All such employees are entitled to be made whole in the amount of all pay and benefits they lost as a result of the lapse in time between the date they would have filled one of the 362 positions had the Postal Service filled them in a timely fashion and the date on which they are actually awarded one of those positions.
Another group of employees entitled to remedial relief is composed of those who were indirectly affected by the Postal Service violation. As Mr. Burelson testified, this group consists of employees who would have been the successful bidders on the vacancies created by those employees who should earlier have been placed in an administrative and technical position. There may be more than one employee indirectly affected in this fashion since each vacancy filled later than it should have been may lead to another – all the way down to a PSE whose conversion to career status is delayed by the original violation – and the Postal Service shall be required to make each such employee whole for any loss in pay and benefits sustained as a result of that violation.”
The common understanding of relief is to make the bargaining unit whole, which most remedies fall far short of accomplishing. The award is a significant step in addressing all the harm done to the bargaining unit. Much appreciation goes to Assistant Clerk Craft Directors Lynn Pallas-Barber (lead case officer) and Lamont Brooks, as well as our APWU attorneys Mindy Holmes and Jason Veny.
USPS Attempting to Eliminate Needed Jobs
The award came just in time to assist in the fight to address the Postal Service’s recently aggressive “recommendations” to the field to revert vacant duty assignments based on unrealistic ideas of how many hours they would like to see worked in the installation, instead of utilizing the actual hours worked.
The Postal Service is using a dashboard complement tool that allows the user to see all the relevant local information on one page. However, that dashboard view also shows how ridiculous it is for management to revert a job when the local data confirms PSEs are averaging 35 hours a week and overtime is being utilized on a regular basis.
With Goldberg’s award, the APWU can and should request compensation to all employees directly and indirectly harmed as a result of the Postal Service’s decision to revert a job and, therefore, fail to post a duty assignment for bid.
It is important that the union fight back at the local, area and national level against attempts to squeeze workers and reduce service. Our success in stopping the Postal Service will depend on whether we are able to put enough pressure on them, so they make the calculated decision that it’s not worth messing with the APWU.