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USPS, Philadelphia APWU Local Sign $35 million Dollar Settlement for "Casuals In Lieu" Violations
posted August 30, 2005
"Philadelphia Area Local President Dennis Sullivan called last night to let
me know that our Local has finally signed off with the USPS on the "Casual In
Lieu Of" settlement for Philadelphia Area Local represented employees.
A BIG THANKS goes out to Philadelphia Region Clerk NBA Mike Gallagher for his
hard work in getting this accomplished.
According to President Sullivan, the settlement is for $35,000,000.00 - the
largest amount to date for "Casual In Lieu Of" settlements which are ongoing
nationwide.
Final details on the amounts to be paid to the different crafts, etc. are being
worked out but President Sullivan assured me checks, separate from the normal
pay checks, will be issued by Christmas to the APWU bargaining unit.
With approximately 3000 APWU represented employees sharing in the settlement
it certainly will be a Merry Christmas!
For those Non-Members who receive a share: What's your reason NOW for not joining?
Again, NBA Mike Gallagher, Thank You very much!
$$$$ 16,000,000.00 $$$$
Casual settlement finalized for the Southeastern Mail Facility in Pennsylvania
for the clerk craft !!!! This was a long and fought award by the local officers
Arthur Jones Jr., Vice-President, Charles Kukulski, Clerk Craft Director, National
Officer Mike Gallagher, NBA and Myself. The local had to go to numerous arbitrations
and to the National Labor Relations Board to conclude this agreement. Many other
locals, with cases pending are now following suite with settlements from the
hard work the EMCAL 2233 local endured from this struggle. This is the largest
award for this size facility in the Nation as of this date. The award will be
posted on the General Membership Board tomorrow for the members to read. The
local will be meeting with Mike Gallager, NBA and management to identify the
employees and the amounts to be paid as outlined in the settlement. This in
its self will be a job! Once Again thanks to the local officers and Mike Gallagher
for his assistance in this big $$16 MILLION DOLLARS $$ settlement
Jim Martello, Local President EMCAL2233
Philadelphia Area
Local ....35,000,000
Southeastern P&DC...........16,000,000
Wilmington(DE) Area Local.... 7,000,000
(I think that was the number
posted a wee bit ago)
Philly BMC (Mailhandlers-
Rumored to be)..............17,000,000
Phoenix Motor Vehicle Drivers Reportedly will received $2.2 million in 'contracting out' case (7/6/05)
From Postal Reporter Reader: Just saw your report on the mail handlers getting 928k from a grievance. Did you know the Phoenix MVS just got a $2.175 million settlement? It was from a 1995 contracting out grievance. About 165 drivers will get a piece of this.
Brief Background of Case from Phoenix APWU Motor Vehicle Craft Director Steve Auerbach
On March 23rd I received a phone call from Washington DC from Mike Foster. He, Rob Stunk, and Bobby Pritchard told me that we had prevailed in our grievance concerning the contracting out of MVS work, (The Matheson Grievance) and that the Postal Service violated the NLRA in this case. We won on all of our issues. The history of this grievance, and board charge is that in Aug of 1997 UPS went on strike and MVS picked up a lot of work. There was a lot of overtime and we joked about Christmas work in the summer. Several mailers switched over to us when the strike ended and we had a lot of work. Management asked that we allow our senior PTFs to vacate their holddowns and do this new work, as the only available drivers were all brand new employees. We agreed to a single mutual violation that was to the benefit of all.
Several other grievances were addressed days later, OT violations, PTF maximization, and run creation of less than 8 hr runs. Management acted as though we agreed to allow any type of violation. That was not the case. When USPS responded to our grievances, step 1’s were denied, however, I was able to resolve step 2’s to the Union’s satisfaction. Several supervisors stated to drivers that we upset certain people and they were going to contract out this work due to the grievance activity. These driver provided statements to me about what they were told. I then brought this information to the local President at the time Rob Strunk and he filed a NLRB charge. The type of contract let for this work was an emergency type. An emergency contract can only be given for a period not to exceed 6 months. This contract lasted 31⁄2 years. The arbitrator ruled that it was a violation and that there should be a monetary award.
I know that everyone wants to know what that award will be. As of this moment we do not know. The arbitrator did say that the violation was enough that there will be a monetary award. I do not want anyone thinking that we are going to be able to buy a new car or any other major purchase today. What we attempted to do was to justify over 100,000 hours of work over a 3-year period. The contract ran from September 1997 to the end of March 2001. He ordered that the first 6 months of the contract be allowed and that the following 3 years were in violation.
Many people worked on or contributed to the success of this grievance. There are several people that I want to publicly thank. Rob Strunk former local President for helping in the beginning when I filed this grievance in 1997, and his assistance with the upheld NLRB charges. Renee Breeden former local President and Vice President. She spent unknown amounts of hours helping us do the clock ring reports and allowing us the Union time when needed.
Supplemental Opinion and Award
This supplemental proceeding raises three general classes of issues relative to the remedy directed in my December 2004 award in this case. The award read as follows:
"Management violated Article 7.1B of the National Agreement by using casuals "in lieu of" career employee. In order to remedy the violation, management is order to cease and desist from the violation and pay current and former career employees an amount calculated by multiplying the number of excess casual hours by the difference between the casual wage rate, including benefits, for a regular mail handler. I retain jurisdiction of administering the remedy. "
Seattle NALC wins use of cell phones in the office
From Postal Reporter Reader (4/22/05)
As announced
in the April 2005 NALC Branch 79 newsletter, Seattle area letter carriers are
once again permitted to have personal cell phones on the workroom floor and
to receive and make emergency calls to/from family members.
See attachment of all three joint USPS-NALC Step
B decisions.
Almost every week there are news articles on post office intruders who have
guns. Having a cell phone can save lives by getting help quicker. Employees
on the way to and from work have been attacked or witnessed attacks. An employee
suffering a medical emergency can talk directly with 911. Some Supervisors take
emergency calls from employees home, but fail to pass the messages on to the
letter carrier until hours later. Some of the situations involved restraining
orders and domestic violence at home.
The USPS Commission on a Safe and Secure Workplace
(3 of 249 pages pdf) headed by Joseph Califano recommended cell phones for all
letter carriers to help protect them from violence. Their report was issued
in August 2000. Some communities provide free cell phones to letter carriers,
so they can call 911 if they see anything.
Vice-president's Report-Two for
Our Side
-Gloria Belarde-
Joint USPS-NALC Step B decisions
are equal to Step 3 decisions in the APWU. While limited to the installations
involved, they ARE citable and precedent-setting. The three Step B decisions
refute claims made in other locations that no such policies exist or can be
workable. Today's tiny cell phones can take voice and text messages anytime,
anywhere without interrupting a person's work. Some of our letter carriers use
hands-free headsets that allow them to case and talk at the same time.
Through the grievance process, the Union has been successful on both the cell phone policy, as well as the policy that prohibited Carriers from bringing personal items onto the workroom floor. The Dispute Resolution Team has recently resolved these issues at the Step B level.
The Seattle District Policy on cell phones came out in 2003. This policy prohibited Carriers from having their cell phones on the workroom floor. Calls on your personal cell phone would only be allowed during authorized break and lunch periods. This policy was grieved at different stations, as well as a class action for the entire Branch.
The Dispute Resolution Team on 1/28/05 resolved the grievances. The decision states:
"In accordance with Seattle District policies, personal cellular telephones are not prohibited but cell phone usage should not negatively impact or disrupt the productivity of the operation. Cell phones shall only be used when it is safe and reasonable to do so."
This allows the Carriers to have their cell phones with them if a family member needs to be in contact or in other cases when it's essential to be contacted by the schools, doctors or other such important contacts. Keep in mind this decision does not allow for Carriers to use cell phones just to chitchat.
Another policy that was implemented last year throughout Branch 79 instructed Carriers that they would no longer be allowed to have personal items on the workroom floor. This was grieved at a few installations, citing that management violated a well-established past practice.
The Dispute Resolution Team resolved the grievance. The decision stated: "Management violated Article 5 of the National Agreement by unilaterally terminating an established past practice which allowed City Letter Carriers to bring personal items onto the workroom floor: Upon receipt of a copy of this decision, Management is directed to immediately reinstate and continue the established past practice of allowing Carriers to bring personal items onto the workroom pool: The Carriers are reminded to observe good housekeeping practices."
Before the decision was reached, the B Team contacted the Western Area and the National Business Agent's office. It was mutually agreed that JCAM pages 5-1 through 5-4 were controlling in this type of dispute. The decision was reached on January 14, 2005.
The National parties have agreed that Article 15 of the National Agreement gives the Step B Teams the "responsibility for issuing decisions that are fair and consistent with the contract and the Joint Contract Administration Manual (JCAM), and written in a manner that is both educational and informative." This was agreed to in the "Memorandum of Understanding" between the USPS and the NALC on April 25,2002. We now have management in one of our installations who has refused to abide by the Step B decision. Their argument is that the B Team does not have the authority to change or rescind a policy that was issued by the Chief Operating Officer and Executive Vice President of the Postal Service.
The Union has again had to take the issue forward through the grievance process. It's our position that, in this installation, management has violated Article 15 of the contract when they refused to abide by a Step B decision that was jointly reached by the parties. This included a member from management's side. When a resolution is reached on this issue, 1'11 inform you of the decision that was made by the parties. So for the time being, remember to follow the supervisor's instructions
New Articles
CARRIERS ATTACKED
IN NEWARK. NJ.com reports that since April, at least 10 mail carriers from
the Springfield Avenue Post Office have faced physical violence or threats of
bodily harm, an unusual amount even for a large Post Office in an urban area,
according to Postal Inspectors. The article said many of the problems are attributed
to gangs and drug activity. The article said there is a plan to equip letter
carriers with cell phones. And mailboxes in problem buildings may be moved outside.
"We will not tolerate carriers being assaulted or threatened by anyone," Postal
Inspector Tony Esposito is quoted as saying. (USPS Newslink)
Return to Letter Carrier Craft following Excessing into Clerk Craft
The issue in this case involves a former Letter Carrier that was excessed into the Clerk Craft and subsequently was not provided their right to return to a vacancy within the Letter Carrier Craft. The Union maintained that, pursuant to Section 12.5.C.5.a. (5) of the Agreement, the Service had an affirmative contractual obligation to return the Grievant, as a Letter Carrier excessed from his own craft to a Clerk Craft position, to the Letter Carrier Craft at its first opportunity. Based upon these factual assertions and contractual contentions, the Union requested the Arbitrator (a) sustain the grievance (b) order the Service to return the Grievant to the Letter Carrier Craft effective June 27, 1998 (c) award the Grievant the difference in the pay and benefits he received as a Clerk Craft employee and those he would have received as a Letter Carrier Craft employee during the period between June 27, 1998 and September 2003, when he was returned to the Letter Carrier Craft and (d) award the Grievant out of schedule pay for all the hours he worked outside the schedule he would have worked in a Letter Carrier position during the period between June 27, 1998 and September
The Postal Service maintained that the Union, as the bargaining representative of the Clerk Craft, did not have jurisdiction to bring the instant matter to arbitration in behalf of the Grievant, a Letter Carrier Craft employee. The Service further maintained that the instant matter was not arbitrable by reason of its untimely filing by the Union. Finally, the Service argued that, if the Arbitrator determined that the matter was arbitrable and that the Service violated the Agreement, he must also find that the Grievant contributed by his actions to any loss of wages, benefits or rights he may have incurred as a result of the found violation. Based upon these factual assertions and contractual contentions, the Service requested the Arbitrator deny the grievance and the remedy requested by the Union.
The arbitrator dismissed the Postal Service’s arbitrability allegations (the grievance was untimely as well as the Union not having standing to file the instant grievance). He found that the Postal Service violated Article 12 of the National Agreement when it failed to return the grievant to his former Letter Carrier position. In this respect he ruled:
“Section 12.5.C.5.a.(5) of the Agreement addresses, the Service’s obligation in the circumstances of an employee’s out-of-craft reassignment in the same postal facility. Section 12.5.C.5.b. addresses the Employee’ rights in the circumstances of an employee’s out-of-craft reassignment into a postal facility other than the one he/she was originally assigned. The circumstances of the instant matter are governed by Section 12.5.C.5.a. (5). Based upon his analysis and comparison of the wording of these two Sections, the arbitrator opines that the Service had an affirmative contractual obligation to initiate a reassignment of the Grievant back to the vacancy in the Letter Carrier Craft at the Post Office which occurred during June 1998. The evidence establishes that it failed to do so, therefore, violated the Agreement, as alleged by the Union.”
After making the above ruling, he granted the Union’s requested remedy, e.g. difference in pay and benefits between a level 5 clerk and a Letter Carrier as well as out of schedule pay for all hours worked outside of and instead of those hours he should have worked in the Carrier craft. The arbitrator did limit the remedy period; in this case he concluded that the grievant had some culpability by not affecting his reassignment at an earlier time. In this regard he ruled:
“Labor arbitrators have applied this principle to breaches of collective bargaining agreements and have awarded remedies only from the date on which the grievance was filed especially in circumstances where the awarding of the remedy requested by the Grievant would result in a loss to the Employer caused by the Grievant’s unwarranted delay in asserting his/her claim. Arbitrators have referred to this delay in the prosecution of remedy by the claiming party as laches, acquiescence or sleeping on ones rights. The Arbitrator determines that such are the circumstances of this matter and further determines that the Grievant did not act in accordance with this obligation.” source: APWU
Arbitrator: Certified Interpreter for Deaf Should Have Been Used for Anthrax Safety Talk
The Postal Service violated the National Agreement by failing to provide a certified interpreter for deaf and hard of hearing employees during training and safety talks concerning anthrax, according to a ruling by Arbitrator Roberts. The arbitrator ordered that management should cease and desist from using non-certified interpreters in the case of biochemical training and safety talks. He specified that volunteers may still be used in these instances so long as such individuals are certified.
This case arose in Charlottesville, Va. after the Postal Service instituted training and safety talks shortly after September 11, 2001 on procedures for addressing anthrax and other biochemicals. Management used volunteer interpreters who were not certified in signing to interpret these talks for deaf and hard of hearing employees. The union thereafter filed a grievance challenging the Postal Service’s failure to use certified interpreters in these instances.
The union argued that without certified interpreters, challenged employees cannot interact properly with management to obtain full information on the procedures related to anthrax, It asserted that this omission is very serious given the possibility of exposure to life threatening biochemicals. The union contended that management’s actions violated the Memorandum of Understanding on Reasonable Accommodation for the Deaf and Hard of Hearing. It requested that the Service be ordered to retain a certified interpreter on call to address formal training issues regarding all biochemical exposure.
The Postal Service countered that it did not violate the National Agreement. It asserted that it would be cost prohibitive to retain on call interpreters and it had the option under the MOU to use volunteer interpreters. Management contended also that there have not been any complaints from deaf or hard of hearing employees regarding the skills of the volunteer interpreter used in these instances, and therefore there is no proof that the interpretation was not done properly.
The arbitrator indicated that the MOU on Reasonable Accommodation for the Deaf and Hard of Hearing provides that “[e]very effort will be made to provide certified interpreters when deemed necessary by an application of the principles set forth herein.” He acknowledged that such a provision, read in conjunction with Article 3, indicates that management may pay for certified interpreters “but only when deemed necessary by Management.” However, Arbitrator Roberts stressed that “even within the confines of such absolute authority, the Agency is still under the obligation to make decisions that are neither arbitrary, capricious or unreasonable.” “Their choice of option in this matter was clearly unreasonable, considering the circumstances of the matter,” he concluded.
In reaching this decision, he said that given the importance of the subject matter involved, the need to keep all employees informed about precautions to take in the event of biochemical threats, and the “primary intent” of Article 14, “it would only be incumbent upon the Employer to ensure every Postal Employee be provided reasonable accommodation toward full understanding of the various training sessions and talks the Service to employ a certified interpreter in such instances of this magnitude.” Accordingly, he ruled that the Postal Service’s actions constituted a “clear violation” of the MOU on Reasonable Accommodation for the Deaf and Hard of Hearing. He thus sustained the grievance.
(AIRS #40281 - K98C-IK-C 02029061)
Related Links:
Update: Deaf Postal Workers Lawsuit|
March 20, 2002 USPS Memo on Deaf and Hard of Hearing
USPS ordered to halt overuse of temps
"Portland-area (Oregon) Letter Carriers won big on Jan. 19 (2004) when an arbitrator ruled that local managers’ decision to make widespread use of temporary casual employees instead of full-time and part-time career employees was a violation of the national contract.
To make sure the Postal Service doesn’t benefit from its violation, arbitrator Jonathan Monat ordered monetary damages that could go over a half-million dollars. The amount is based on the difference between the total wages paid to the temps and the total cost of wages and benefits that would have been paid to the career employees, who are union members.
Career employees make $17 an hour plus benefits, while temps earn $11 an hour.
It’s not clear how the damages will be distributed, but it’s likely that the union, National Association of Letter Carriers Branch 82, will divide the amount among its members in some way, said Union President L.C. Hansen.
The arbitrator’s decision also meant termination for the approximately 45 casual employees by the end of January, though they could presumably apply for any new positions. Casuals are not members of the union.
The national contract allows management to hire temps but only in “unusual or emergency situations,” when there’s a temporary work load that can’t be handled by the regular workforce. Temps are capped at 5 percent of the workforce.
Starting in October 2002, Portland-area U.S. Postal Service management hired casual employees instead of career employees even as 23 career letter carrier positions were approved but not filled. Over a two-year period, the number of casuals increased five-fold while the number of career employees declined 5 percent.
Hansen filed multiple grievances, and decided to pursue them all the way to arbitration because she felt many of her part-time members could have been made full-time if it weren’t for the overuse of temps."
USPS
settles Arkansas casual grievances for $12 million-The
payments will be in two installments. The initial payment, on the list provided
by the union, will be made via pay adjustments as described below in paragraph
#4 and will not exceed the total amount of $11, 800,000.00. The remaining
$200,000 will be paid upon receipt of the union's written request to the
Manager Human Resources Arkansas District for the remaining funds.
1/1/04
WITHIN THE SEATTLE PERFORMANCE CLUSTER
Dateline June 9, 2003:
The undersigned agree to settle all outstanding grievances concerning casuals
within the Seattle Performance Cluster as follows:
1. A lump sum not to exceed $7.5 million will be paid to impacted
employees within the Seattle Performance Cluster, minus appropriate deductions.
2. This settlement
applies to all offices within he Seattle Performance Cluster, including but
not limited to the Seattle P&DC, AMC, PMA, BMC, Tacoma, Everett, and Olympia.
The APWU has determined the amounts to be paid to employees within each office/local
union territory as follows:
Greater Seattle Local (Seattle) $6,145,464.00
Cascade Area Local (Everett)
$100,000.00
Seattle BMC Local
$419,000.00
Green River Local (DDC South) $105,778.00
Yakima Local
$32.631.00
Puget Sound Area Local (Tacoma) $696,446.00
3. The American Postal Workers Union hereby withdraws any and all cases
related to the issues of utilization and/or the employment of casuals within
the Seattle Performance Cluster, excluding issues concerning temporary agency
employees (Kelly Girls). This withdrawal applies to every case at every
step of the grievance procedure that was filed by the APWU within the Seattle
Performance Cluster through the date of signing of this settlement. The
parties shall work together in good faith to identify each case and construct
a list showing the USPS regional grievance numbers, Local grievance numbers,
and any grievant within 30 days of the signing of this settlement.
The failure to identify a case during that 30-day period will not waive the
requirement for the local to withdraw cases when disclosed or otherwise identified,
provided the case was filed on or before the date of the signing of this settlement.
4. The APWU locals will submit to the designated management representative
a list of employees who will be eligible to receive payment as a result of this
settlement. The list will contain each employee's first and last names,
Social Security Number, Pay Location, Office, and the gross amount to be paid
to each employee. Appropriate
taxes and deductions shall be made from the gross amounts. Management
shall make reasonable effort to issue the payments within 30-60 days of the
Union's submissions, providing that each local shall submit a complete list
with the names of all employees. Multiple or individual lists of less
than all of the employees within a local shall not be
submitted nor accepted.
5. Payment to former employees listed by the APWU might take longer
to process; therefore tthe above time limit will not apply to them, however,
management will work in a diligent manner to pay them. Not all former employees
might be located at their last known address of record. The intended funds
to those former employees will be remitted to the local unions.
6. The Union is solely responsible for the designation of the recipients
and the amounts of the lump sum amounts to be paid to each employee in this
settlement. Accordingly, the locals of the American Postal Workers Union
within the Seattle Performance Cluster, their agents, affiliated, and branches,
successors or assigns shall indemnify and hold harmless the United States Postal
Service, its agents, officers, and employees from any and all causes of actions,
claims, damages, costs or expenses incurred by the Postal Service arising out
of the Union's designation of the recipients and amounts to be paid to each
employee in this settlement.
7. Management shall convert half of the PTF clerks at the above offices
that were on the rolls as of September 1, 2002, to full-time flexible clerks.
This shall resolve any outstanding grievances concerning maximization.
8. The APWU locals within the Seattle Performance Cluster agree not
to file any grievances related to the utilization or employment of casuals in
all represented offices for a period of 120 days of the date of this settlement.
During this period the local parties shall meet and discuss processes intended
to eliminate violations of Article 7.1.B and grievances.
This settlement is without prejudice to the position of the parties and shall
not be cited as precedent in any other case or proceeding.
Signed 6/09/03 by Kenneth A. DeHate, USPS Representative
Signed 6/09/03 by Marty Barron, APWU Representative
pdf file can be found at WAPWU