|
|
Highlights:
Judge to Rule in Two Weeks on Union Petition to Compel Arbitration 10/24/03
PETITIONER’S REPLY BRIEF IN
SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (10/20/03)
DECLARATION OF JOHN R. MULARSKI, USPS
DEFENDANT’S MOTION TO
DISMISS
Plaintiff’s Petition Cannot be Granted Because it Violates Federal Law| Declaration of DOUG TULINO, USPS Manager
An Injunction Would Adversely Affect the Interests of the Postal Service
See footnote #11 very interesting
Below is a web version of the pdf file. All footnotes have been placed at the bottom of this page
Alternate Early Retirement Dates to Be Set Next Spring-APWU 10/23
First hearing set for October 23, 2003 at 11:00 a.m.
|
"More importantly, the Mahoney Declaration, even if accepted as true means little or nothing. It merely states that OPM representatives stated that it would be "inappropriate" for the Postal Service to offer VER to an employee "occupying a position that remains necessary to the mission of the Postal Service unless such position could be filled by a qualified employee in a surplus or excess position." Mr. Mahoney does not explain what he means by "inappropriate." He does not state that such a VER would violate the law or regulations. He does not even state that he agrees with what "OPM representatives" allegedly said at the meeting. Notably, Mr. Mahoney’s statements concerning what allegedly happened at the meeting differ materially from both Greg Bell’s recollections of that meeting and from Doug Tulino’s recollections. Compare Third Bell Dec. ¶¶ 5-12; Tulino Dec. ¶ 14. The Employer’s reliance on the incompetent Mahoney Declaration is made even more egregious by the fact that the Employer’s Brief misstates and exaggerates the Declaration. Third Bell Dec. ¶¶ 5-12."
Voluntary Early Retirement: |
||
|
PETITIONER’S REPLY BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION (10/20/03) In this Reply Brief, we first respond to the Employer’s contention that the Union is not raising a contractual issue in its grievances, by clarifying the contractual issues raised by the Union’s grievances that are the subject of the Petition to Compel Arbitration. We also respond to the Employer’s exhaustion and procedural arguments by summarizing the reasons why it is essential to arbitrate those grievances without delay. We then make a brief statement about the merits of the grievances, illustrating that the Union has powerful arguments in support of its contention that the Employer has violated the parties’ VER Agreement. Finally, we rebut several of the Employer’s more egregious misstatements concerning the law and facts underlying this dispute. I. THE UNION’S GRIEVANCES RAISE CONTRACT INTERPRETATION ISSUES, NOT LEGAL DISPUTES, AND THOSE GRIEVANCES MUST BE ARBITRATED WITHOUT DELAY A. The Union Has Filed Disputes Under The ADRP Alleging Two Types of Contract Violations By The Employer 1. Violations of the parties’ VER Agreement by failing to offer VER to all APWU represented employees, and by failing to request authority from OPM to offer VER to all APWU represented employees. 12. Violations of the parties’ VER Agreement by failing to make VER available to all APWU represented employees who are within the authority the Postal Service has received from OPM. The Postal Service (also sometimes referred to as "the Respondent" or "the Employer") has acknowledged at page 22 of its initial Memorandum of Points and Authorities, that the parties’ Memorandum of Understanding "imposes two obligations on the Postal Service with regard to a VER program." First, it requires the Postal Service to petition OPM for authority to offer voluntary early retirement to all eligible employees represented by the APWU. ... Second, the MOU requires the Postal Service to effectuate an early retirement program pursuant to 5 U.S.C. §§ 8336(2)(d) and 8414(b)(1)(B) and limitations imposed by OPM. The Postal Service Memorandum errs, however, in stating that the APWU "does not contend that the Postal Service failed to fulfill this contractual obligation." Upon learning of the September 9, 2003, letter from OPM to the Postal Service that narrowed the scope of the Postal Service’s authority to offer VER to its employees, the APWU amended it dispute with the Postal Service contending that the Postal Service has requested that OPM issue VER authorization that is narrower than "all APWU represented employees" in violation of the parties VER Agreement. Second Bell Dec. ¶ 5, Exh. 3.2 The APWU also filed a second dispute under the parties Alternative Dispute Resolution Procedure (ADRP) alleging that The Employer is refusing to offer voluntary early retirement to all eligible clerk craft employees, motor vehicle craft employees in level 5 and below, and maintenance craft employees in level 5 and below, with the exception of technical maintenance positions for which there is a continuing need. Thus, the two disputes initiated by the APWU arising from the parties’ Memorandum of Understanding on Excessing (the VER Agreement) allege that the Employer has violated the duties it acknowledges it has under the Memorandum of Understanding. B. The Employer May Not Avoid Or Delay Arbitration By Relying On Procedural Arguments As explained in the Union’s principal Memorandum of Points and Authorities (at 9-10), the parties’ dispute over the scope of the VER program must be arbitrated without delay in order to avoid irreparable harm both to employees and to the Union. If this Court does not compel the Employer to submit to arbitration on an expedited basis, the Employer’s VER authorization will have expired before an arbitration decision can be obtained by the Union; retirement windows will have opened and closed irrevocably, denying employees the right to retire; and the Union will have lost its right to obtain an effective remedy for the Employer’s violations through arbitration. Without preliminary injunctive relief, arbitration will be rendered meaningless by the passage of time. These circumstances require the issuance of preliminary injunctive relief to protect the arbitral process. Id. at 11-14; see also the Postal Service’s initial Memorandum of Law at 11, n.4. In the words of the Employer’s Brief (at 26), if the Court does not compel the Employer to submit to arbitration on expedited basis, arbitration will "be but an empty gesture" (citing Board of Locomotive Engineers v. Missouri-Kansas-Texas R.R., 363 U.S. 528, 534 (1960)). The Employer’s contention (Supplemental Brief at 2) that the Union should be required to "exhaust their contractual grievance and arbitration mechanization as a prerequisite to pursuing claims judicially" states the case backward. It is the Employer, not the Union, that is seeking to avoid arbitration. As the Postal Service acknowledged in its initial Memorandum of Law (at 13),"labor disputes concerning ‘procedural’ arbitrability should be decided by arbitrators... ." The Union is here seeking an order compelling arbitration of its contractual claims, and seeking an order that the arbitration be held promptly to avoid losing its contractual rights due to the passage of time. The cases cited by the Employer involve cases where the Unions sought the intervention of the courts on the merits of the contractual dispute before an arbitration decision had been obtained.3 In this case, it is the Employer that is seeking to persuade this Court to consider the merits of the parties’ dispute before arbitration has occurred. II. THE UNION’S GRIEVANCES ARE MERITORIOUS A. The Employer Made A Commitment To Seek Authority To Offer VER To All APWU-Represented Employees 1. VER Is Necessary For All APWU Represented Employees Because Of An Impending Consolidation Of Mail Processing Facilities As explained by APWU President William Burrus, the context of the VER Agreement is important to an understanding of why the parties reached their agreement. In late 2002, the Postal Service had informed the APWU that it was about to provide the Union (no later than December 2002) a copy of an ambitious plan to consolidate postal mail processing facilities. This plan, when it is carried out, "will result in the dislocation of a very substantial number of postal employees represented by the APWU. This will be a change of unprecedented magnitude in the 33-year history of the Postal Service." Burrus Dec. ¶ 4. The imminence of this consolidation plan was "the primary motivating force that caused the APWU to seek agreements with the Employer on excessing employees," including the VER Agreement. Burrus Dec. ¶ 3.4 The consolidation of mail processing facilities will impact employees in every craft at every level. 2. The Parties Agreed That The Employer Would Seek To Offer VER To All APWU Represented Employees, And The APWU Relied On That Agreement The parties’ VER Agreement speaks in plain English when it requires the Employer to seek authority to offer VER to "all APWU represented employees." This is a term that the parties understand to include employees not just under the National Agreement, but also under the agreements covering ITS/ASC employees and Operating Services employees. Burrus Dec. ¶ 11; Second Bell Dec. ¶ 3; First Amended Petition ¶ 14. The VER Agreement was a part of a series of agreements reached as part of the parties’ agreements to extend their collective bargaining agreements. The APWU Second Bell Dec. ¶ 3, First Amended Petition ¶¶ 15-18. The Employer’s promise to offer VER to all APWU represented employees was communicated to the Union’s members and was part of the basis for the ratification of the agreements to extend the parties’ collective bargaining agreements; and the Postal Service was aware that the VER Agreement was presented to the members during the ratification process. Second Bell Dec. ¶ 3, First Amended Petition ¶¶ 17, 18. Furthermore, just prior to the ratification vote on the ITS/ASC agreement, Mr. Burrus called Mr. Tulino for the purpose of making sure that the Postal Service intended to apply the VER Agreement to the ITS/ASC bargaining unit. Mr. Tulino confirmed that it would apply but asserted that it would be applied to those employees only if they ratified the extension of the ITS/ASC agreement. Burrus Dec. ¶ 12. Because the Employer’s commitment to seek authority to offer VER to all APWU represented employees is explicit and plain, the Employer’s contrary actions are indefensible. B. The Employer Has Virtually Admitted It Violated the Parties’ Agreement By Failing To Request VER Authority For All APWU Represented Employees As previously explained, the Employer sent two requests for VER authority to OPM, the first was dated January 23, 2003, and sought authority to offer VER to virtually all APWU represented employees. The APW U received a copy of this authorization and did not allege that it violated the Employer’s duty to request such authority. The second authorization request, dated August 6, 2003, sought an extension of authority to December 31, 2004. Again, the request sought authority to offer VER to virtually all APWU represented employees, and the APWU did not allege that the August 6 request violated the Employer’s obligation to seek such authority. The APWU has now learned, from the Declaration of John R. Mularski and from an e-mail dated August 28, 2003, from a postal official to an OPM official, that the Postal Service informed the Postal Service that it was in fact seeking authorization for VER authority only for a sub-set of postal employees. Burrus Dec. ¶ 17, Exh. 6. That e-mail states: In the VERA [extension] request dated August 6, 2003, the US Postal Service asked for VERA for career US Postal Service employees represented by the American Postal Workers Union (APWU). As clarification, employees covered by this labor agreement are in the following occupational groups nationwide: • Clerk craft employees • Motor Vehicle craft employees in levels 5 and below • Maintenance craft employees in levels 5 and below, with the exception of technical maintenance positions for which there is a continuing need. If you have any other questions please feel free to cal me at [number omitted here; emphasis added here]. Mr. Mularski has now acknowledged that, on August 27, 2003, he orally advised OPM by telephone that: the employees covered by the August 6 request were the same group that was covered by the Postal Service’s first VER request and that the employees identified as meeting the requirements set out for the first VER authorization would be the same for the August 6 request for VER authorization. [Emphasis added here.] Thus, it is now clear that the Postal Service has itself narrowed its request for VER authority to the employees listed in its August 28, 2003, e-mail. It has even informed OPM, incorrectly, that its earlier requests for VER authority for "employees represented by the American Postal Workers Union" excluded maintenance and motor vehicle service employees above level 5. This is a clear-cut violation of the parties’ VER Agreement. The APWU is entitled to present this violation to an arbitrator and to seek an appropriate remedy in accordance with the parties’ Agreement. C. Even Under The Narrowest Reading Of It’s VERA Authority, The Employer Is Violating The Agreement By Refusing To Offer VER To Employees Represented By The APWU This is not the time or the place to present all the facts and argue the merits of the Union’s grievances. Nevertheless, we observe that the Employer’s conduct violated its commitments under the VER Agreement, even as the Employer now construes it. 1. Many employees who could be spared are being denied VER The VER Agreement requires the Employer to offer VER to all APWU represented employees. Even the Employer has acknowledged that it has authority to offer VER to Clerk Craft employees, and to Maintenance and Motor Vehicle Craft employees in levels 5 and below. Despite these facts, the Employer is denying VER to clerks by the thousand and denying VER to maintenance and motor vehicle employees in large numbers at every level. Second Bell Dec. ¶ 3, Exhibit 1, First Amended Petition at ¶ 45; Raymer Dec. ¶¶ 4, 5 (Maintenance); see Pritchard Dec. ¶¶ 5, 6 (Motor Vehicle). The Postal Service has estimated that, through December 2004, the number of excess positions represented by the APWU will reach 17,500. It is expecting only 3,750 employees to accept early retirement. The Employer simply will not be able to justify its contention that, despite these compelling numbers, thousands of clerks and hundreds, if not thousands, of maintenance and motor vehicle employees cannot be spared. Even in the Maintenance and Motor Vehicle crafts, where there are a significant number of highly-trained technical employees, the evidence is that the employees who wish to take VER could be provided that option with no adverse impact on the Postal Service. In the Motor Vehicle Craft, for example, it would be possible for the Employer to permit all employees who wish to do so to take VER without being required to hire to replace them. This would be true even if the percentage of MVS employees taking early retirement were substantially higher than in the Postal Service generally. Pritchard Dec. ¶¶ 5, 6. As explained by Robert Pritchard, the Union’s Motor Vehicle Craft Director (Id.), 5. ... . the Postal Service could cover all the work that would have been performed by those employees by assigning additional overtime work to the remaining employees or more straight time hours to part-time flexible employees. ... 6. For the Postal Service to use overtime to cover the work of departing employees would be in keeping with current Postal Service practice. For some time now, the Postal Service has not acted to fill vacancies... . Likewise, in the Maintenance Craft, the Employer will not be able to justify its actions. As explained by Steve Raymer, the Union’s Maintenance Craft Director, the Employer is denying VER to maintenance employees at all levels on the ground that they do not occupy a position that is "excess to the mission of the Postal Service." This is being done regardless of the facts, as Mr. Raymer points out in his Declaration: ... I have been a full-time Union officer since April 1994. Nevertheless, I received a letter from the Postal Service (Exhibit 1 to this Declaration) informing me that my request for VER has been denied because: You do not occupy a position that is excess to the mission of the Postal Service or is a potential opportunity for those employees whose positions are being excessed. This same letter has been received by Maintenance Craft employees at all levels, including custodial employees. ... Mr. Raymer also points out (Raymer Dec. ¶ 7) that ... the vast majority of Maintenance Craft jobs that become vacant for any reason, including jobs at levels 6 and above, are filled through internal promotion, reassignment, or transfer of qualified postal employees. A majority of offices where there are Maintenance Craft employees have Promotion Eligibility Registers (PERs) that list qualified employees waiting for promotion to higher level. The employees on these PERs are qualified to be promoted into higher level maintenance jobs. 2. The Categorical Denial Of VER To Employees On The Ground That They Do Not Occupy A Position That Is Excess To The Needs Of The Employer Is Illogical and Indefensible Postal Service contends (Tulino Dec. ¶ 14; USPS Brief at 18) that the Postal Service is required to deny VER to entire categories of employees, including all Maintenance and Motor Vehicle employees over level 5, on the ground that they do not occupy "positions" that are becoming excess to the needs of the Employer. On this basis, the Employer has categorically excluded thousands of employees from the VER program without any individual consideration of their circumstances. This categorical exclusion is illogical and indefensible. Both before and after it reduces its workforce, the Postal Service will need to employ many more clerks than motor vehicle and maintenance employees. In this sense, no clerk occupies a "position" that is excess to the needs of the Employer. Some clerks, but not all, may take VER without impacting the Employer’s operations. The same is true of maintenance and Motor Vehicle employees. See the discuss at pp. 9-10, above. In seeking to defend its categorical denial of VER to employees it does not need, the Postal Service has misstated the facts and the law. III. THE POSTAL SERVICE HAS MISSTATED THE LAW AND THE FACTS A. The Postal Service Brief Misstates The Pertinent Law Concerning Early Retirement At pages 9-10 of its Brief, the Employer purports to discuss the "legal authority for VERA." In that guise, the Brief asserts that VER is limited to employees occupying "positions which are becoming surplus or excess to the agency’s future ability to carry out its mission effectively." In making this assertion, the Brief lifts a key passage of the federal retirement statutes from its context and completely misconstrues it. The pertinent sections of the retirement laws are 5 U.S.C. §§ 8336(d)(2)(D) and 8414(b)(1)(B), which provide that an employee may take immediate early retirement if the employee: : (D) is separated from the service voluntarily during a period in which, as determined by the Office of Personnel Management (upon request of the agency) under regulations prescribed by the Office – (i) such agency ... is undergoing a substantial delayering, substantial reorganization, substantial reductions in force, substantial transfer of function, or other substantial workforce restructuring (or shaping); (ii) a significant percentage of employees servicing in such an agency ... are likely to be separated or subject to an immediate reduction in the rate of basic pay...; or (iii) identified as being in positions which are becoming surplus or excess to the agency’s future ability to carry out its mission effectively; and... . Even a cursory reading of this provision reveals that its three stated conditions are stated in the disjunctive. The Employer’s Brief treats circumstance number (iii) as if it is the only circumstance justifying VER. On the contrary, when read in context, it is clear that occupying a position that is becoming excess to the employer’s needs is only one of three alternative grounds for permitting a VER. One of the other grounds, number (ii) is that the Employer is going through a substantial workforce restructuring (or shaping), precisely what the Postal Service is doing. B. The Postal Service Misstates The Facts Concerning OPM’s Actions Seeking to buttress its reading of the statute, the Employer contends also that OPM has directed it to act as it has. In support of this contention, it offers the Declaration of Kevin Mahoney concerning, among other things, what allegedly took place at an August 12, 2003, meeting at OPM attended by representatives of the parties. On this point, the Declaration is not admissible, because it fails to state that its statements are based on personal knowledge or that the declarant is otherwise competent to testify about what occurred at the meeting. More importantly, the Mahoney Declaration, even if accepted as true means little or nothing. It merely states that OPM representatives stated that it would be "inappropriate" for the Postal Service to offer VER to an employee "occupying a position that remains necessary to the mission of the Postal Service unless such position could be filled by a qualified employee in a surplus or excess position." Mr. Mahoney does not explain what he means by "inappropriate." He does not state that such a VER would violate the law or regulations. He does not even state that he agrees with what "OPM representatives" allegedly said at the meeting. Notably, Mr. Mahoney’s statements concerning what allegedly happened at the meeting differ materially from both Greg Bell’s recollections of that meeting and from Doug Tulino’s recollections. Compare Third Bell Dec. ¶¶ 5-12; Tulino Dec. ¶ 14. The Employer’s reliance on the incompetent Mahoney Declaration is made even more egregious by the fact that the Employer’s Brief misstates and exaggerates the Declaration. Third Bell Dec. ¶¶ 5-12. IV. CONCLUSION For these reasons, and for the reasons stated in Petitioned’s Memorandums in support of its Motion and Supplemental Motion for Preliminary Injunction, the Employer’s Motion to Dismiss must be denied and an Order must be entered compelling the Employer to submit the parties’ dispute to arbitration on the next available date before the parties’ mutually selected arbitrator, or before any other arbitrator mutually selected by the parties. Dated October 3, 2003 Respectfully submitted, O'DONNELL, SCHWARTZ & ANDERSON, P.C. By: /S/ Darryl J. Anderson DC Bar # 154567 1300 L Street NW Suite 1200 Washington, DC 20005-4178 (202)898-1707/(202)682-9276 FAX 1 This dispute was initiated on July 28, 2003. Originally, the APWU alleged that OPM had authorized the Postal Service to offer VER to all APWU represented employees, because that was the way the Postal Service request and the OPM response were stated. Subsequently, OPM narrowed the categories of employees to whom VER could be offered. In response, the APWU notified the Postal Service that the Union would contend that any action by the Postal Service to narrow its request for VER authority was an additional violation of the parties’ VER Agreement. The Postal Service has acknowledged (Supplemental Brief at 3-4) that the APWU’s challenge to the Postal Service’s narrowing of its request is "clearly the same issue previously submitted to this Court in its Petition regarding the June 13 VER authorization." 2 The first VER authorization from OPM to the Postal Service was stated very broadly, seeming to extend authority for VER to virtually all postal employees represented by the APWU. Bell Dec. ¶ 10, Exh. 8.; June 13, 2003, letter from OPM to the Postal Service. When the APWU amended its dispute to allege that the Postal Service had narrowed its request for VER authority, the APWU did not yet know how the Postal Service had gone about narrowing its request for VER authority. That information has now been revealed, as discussed in this Reply. 3 Allis Chalmers Corp. v. Lueck, 471 U.S. 202, 219 (1985); Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 563 (1976); Republic Steel v. Maddox, 379 U.S. 650, 652, 653 (1965). 4 The Employer’s Brief (at 29) errs when it asserts that the Postal Service determination to review the location of its facilities was related to the July 31, 2003, publication of a report by a presidential commission. The commitment to consolidate facilities was made in a "Comprehensive Transformation Plan" requested by Congress in June 2001 and issued by the Postal Service on October 1, 2001. Burrus Dec. ¶¶ 5, 6, Exhibit 1; Comprehensive Transformation Plan at 45.
|
||
|
Civil Action No.
1:03 CV 1908 June 13, 2003 early retirement authority and were consistent with the guidelines and regulations promulgated by OPM. Mr. Barsi and I further indicated that the positions were the level PS-4, PS-5, PS-6, and PS-7 clerk craft positions; and also the maintenance and motor vehicle craft positions at level PS-5 and below which did not have specific skills that needed to be retained by the organization. Mr. Scholl asked whether the August 6 VERA petition covered different employees. I told Mr. Scholl that the employees covered by the August 6 request were the same group that was covered by the Postal Service's first VERA request and that the employees identified as meeting
the requirements set out for the first VERA authorization would be the same
for the August 6 request for VERA authorization. Mr. Scholl then asked
that we email him the occupational groups that we had just described.
We did so.
** links added by postalreporter
**In the USPS papers filed in U.S. District Court on October 17th is an affidavit from an OPM official. He complained twice that union representation is not a consideration. “(I)t is not appropriate to offer voluntary early retirement to an employee occupying a position that remains necessary to the performance of the mission of the Postal Service unless such position could be filled by a qualified employee in a surplus or excess position....OPM determined to recast the extension of its VERA approval by making specific reference to the authorized occupational series and levels in order to ensure consistency with the applicable statutory and regulatory criteria.” Comments in bold by Don Cheney, Auburn Washington APWU Steward
Declaration of Kevin Mahoney, Deputy Associate Director of the Center for General Government, Division for Human Capital Leadership & Merit System Accountability, Office of OPM
Following review of the August 6, 2003, USPS request, OPM determined to recast the extension of its VERA approval by making specific reference to the authorized occupational series and levels in order to ensure consistency with the applicable statutory and regulatory criteria. As a result, by letter dated September 9, 2003 (Attachment 4), OPM extended the previously granted USPS VERA authority and applied it to the following groups of employees:
Declaration of DOUG TULINO, USPS Manager of Labor Relations Policies and ProgramsDuring the fall of 2002 I met with APWU President William Burrus to negotiate the terms and conditions of a Memorandum of Understanding on Excessing. The Memorandum was to become part of an extension to the existing National Agreement between the United States Postal Service and the American Postal Workers Union, AFL-CIO (APWU). This collective bargaining agreement, which was due to expire on November 20, 2003, covers Maintenance, Motor Vehicle, Clerks, Mail Equipment Shop and Material Distribution Center employees At no time during my negotiations with William Burrus concerning the MOU did we discuss applying the MOU to APWU-represented employees other than those aforementioned employees covered by the National Agreement. During negotiations concerning the MOU, I clearly explained to Mr. Burrus that a Postal Service request to the Office of Personnel Management (OPM) for a Voluntary Early Retirement Authority (VERA) for all eligible employees would not result in all interested eligible employees being allowed to retire. Instead, only eligible employees meeting specific statutory criteria, as interpreted and administered by OPM, would be able to retire. Full text of Tulino's declaration (pdf 220k) submitted 10/17/03 ( footnotes at the end of this document) DEFENDANT’S SUPPLEMENTAL BRIEF IN SUPPORT OF ITS CONSOLIDATED MOTION TO DISMISS AND OPPOSITION TO PLAINTIFF’S PETITION TO COMPEL ARBITRATION AND MOTION FOR TEMPORARY INJUNCTIVE RELIEF The APWU’s Amended Petition and Memorandum of Law submits two new issues that it incorporates into the earlier request for expedited arbitration. The allegations are as follows: (1) the Postal Service’s alleged narrowing of their VER authorization request as reflected by the September 9 letter; and (2) the Postal Service’s alleged refusal to offer VER to all clerks covered by the September 9 letter. The Union Has Not Exhausted their Contractual Remedies On September 25, 2003, the Union wrote the Postal Service raising these two new issues, thus commencing the CBA’s Administrative Dispute Resolution Process 1 ("ADR"). The ADR process requires the parties to meet at the national level and discuss all complex disputes before declaring impasse and proceeding to arbitration. The parties are not scheduled to meet on these two new issues until October 20, 2003. Neither party has declared impasse. Neither party has identified issues in dispute. Neither party has appealed the matter to arbitration.2It is well established that federal labor policy favors the private settlement of labor disputes. Buffalo Forge Co. v. United Steel Workers, 428 U.S. 397, 411 (1976); United Paperworkers Int.Union v. Misco, Inc. 484 U.S. 29, 36 (1987); United Steelworkers v. American Manufacturing Co. 363 U.S. 564, 556 (1960). Equally well established is the rule that a party to a collective bargaining agreement must exhaust their contractual grievance and arbitration mechanisms as a prerequisite to pursuing claims judicially. Allis-Chalmers Corp. v. Lueck, 471 U.S. 202, 219 (1985); Hines v. Anchor Motor Freight Inc., 424 U.S. 554, 563 (1976); Republic Steel v. Maddox, 379 U.S. 650, 652, 653 (1965). This Court, in keeping with Supreme Court precedent, should not permit the Union to bypass the CBA’s requirements to meet and discuss issues before seeking judicial intervention. This is especially true in the instant matter, because the Union’s allegations are so bereft of specifics 3 that it is impossible to ascertain what, if any, problem actually exists. Indeed, unless one assumes that the Union intends to enter the contractually required discussion in bad faith with the predetermined intent to declare impasse, it is impossible to definitively conclude that any issues would not be resolved short of arbitration. Should the ADR process fail, the parties have more than 15 months to resolve the issue before the current VER authorization expires in December 31, 2004.Plaintiff’s Allegations Concerning the September 9, 2003 VER Authorization are Not Arbitrable Plaintiff alleges that the Postal Service procured OPM’s September 9 VER authorization in violation of the MOU. The heart of the Union’s claim is the unsupported allegation that the Postal Service surreptitiously requested the VER extension for a narrower group of employees than is contemplated by the MOU. The Union surmises that the Postal Service requested this narrower group because the VER Extension was authorized for specific employee classifications rather than the broad group of "all employees represented by the APWU." The APWU also notes that the authorization set out in the September 9 letter is identical to the employee groups identified in the Postal Services’ instructions to field managers that were issued in July 2003. Had the plaintiff complied with the CBA before seeking judicial relief, it would have understood that this "new issue" is not new, but merely a restatement of the issue presented in their original Petition. Plaintiff admits that the defendant petitioned for the VER Extension in accordance with the MOU. 4 OPM, during its review of the defendant’s request, inquired about an issue raised by the defendant’s VER petition. During this inquiry, OPM learned that the Postal Service had prepared a list of positions impacted by the Postal Service’s reshaping and downsizing efforts. This list was prepared in accordance with the statutory and regulatory requirements applicable to the June 13 VER authorization. At OPM’s request, the Postal Service submitted the list to the agency. Exhibit E (Declaration of John Mularski, para. 4 and 5).Under these circumstances, it is immaterial how the plaintiff styles this "new issue," it is clearly the same issue previously submitted to this Court in its Petition regarding the June 13 VER authorization. Namely, the Union continues to attempt to arbitrate the statutory standards for determining eligibility for voluntary early retirement under Chapters 83 and 84 of Title 5 For the same reasons that it set forth in its Consolidated Motion, the defendant submits that this "new" issue is not arbitrable. Nothing in the plaintiff’s First Amended Complaint or its Supplemental Memorandum of Law supports a conclusion that the Union is likely to succeed on the merits or the proposition that the Union or the employees it represents will suffer irreparable injury absent an expedited arbitration. For these reasons, and those set forth in defendant’s Consolidated Motion, the defendant submits that this Court should deny plaintiff the relief it seeks and dismiss their action with prejudice. Respectfully submitted, 1 -The CBA’s Memorandum of Understanding on Administrative Dispute Resolution Procedures provides that complex disputes will be referred to the ADR process where national level designees will meet and discuss the issue. If no resolution is reached, either party may declare an impasse. The parties then have 30 days to identify the issue in writing and place it on the arbitration docket. 2-Contrary to the APWU’s assertions, the Postal Service has complied with the Union’s September 24, 2003 document and information request. 3-For example, the Union provides no specifics regarding the refusal to offer VER to clerk craft personnel. The Union admits that it does not know why OPM issued the Sept. 9 letter containing VER approval by employee classification. ("[Not] knowing why OPM issued the narrower September 9, 2003 authorization, the APWU. . ." (Mem. Of Law in Support of Petitioner’s Supplemental M ot. For Preliminary Injunction, pg. 7)). 4-The Employer’s Aug. 6, 2003, letter to OPM again requests authorization to offer VER to "...U.S. Postal Service employees represented by the American Postal Workers Union (APWU)... ." (Para. 13, First Amended Petition.) |
Civil Action No.
1:03 CV 1908
AMERICAN POSTAL WORKERS UNION, AFL-CIO
Plaintiff,
v.
UNITED STATES POSTAL SERVICE
Defendant,
DEFENDANT’S MOTION TO DISMISS
Defendant United States Postal Service, by and through its attorneys, hereby moves for dismissal of this matter pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. A memorandum of points and authorities and a proposed order accompany this Motion.
Respectfully submitted,
_________________________________
ROSCOE C. HOWARD, JR. D.C. BAR # 246460
United States Attorney
_________________________________
MARK E. NAGLE, D.C. BAR # 416364
Assistant United States Attorney
_________________________________
PETER D. BLUMBERG D.C. BAR # 463247
Assistant United States Attorney
Judiciary Center Bldg.
555 Fourth Street, N.W., Tenth Fl.
Washington, D.C. 20530
(202) 514-7157
Attorneys for Defendant
OF COUNSEL:
Courtney B. Wheeler
Law Department
United States Postal Service
475 L’Enfant Plaza, SW
Washington, DC
Date: October 15, 2003
DEFENDANT’S CONSOLIDATED MOTION TO DISMISS AND OPPOSITION TO PLAINTIFF’S PETITION TO COMPEL ARBITRATION AND MOTION FOR PRELIMINARY INJUNCTION
I. INTRODUCTION
The American Postal Workers Union ("APWU") brought this action under 9 U.S.C. § 4; 39 U.S.C. §§ 409(a) and 1209(b); and 28 U.S.C. §§ 1331 and 1339 asking this Court to compel the United States Postal Service ("Postal Service") to participate in an expedited arbitration arising out of a labor dispute between the parties. The dispute in this matter squarely raises an issue concerning the "substantive arbitrability" of a grievance filed by the APWU over the Postal Service’s implementation of the Office of Personnel Management’s ("OPM") authorization to offer voluntary early retirement to eligible employees represented by the APWU under Section 8336(d)(2) (voluntary early retirement - CSRS) and Section 1814(b)(1)(B) (voluntary early retirement - FERS) of Title 5, United States Code. The Union’s First Amended Petition To Compel Arbitration alleges that the Postal Service did not comply with a Memorandum of Understanding on Excessing ("MOU") between the parties because it did not offer all employees represented by the APWU the opportunity to take voluntary early retirement ("VER").
On September 17, 2003, the American Postal Workers Union ("APWU" or "Union") filed a Motion for a Preliminary Injunction, requesting that the Court enter an injunction requiring the Postal Service to submit the parties’ dispute to arbitration. This motion was supplemented on October 3, 2003. The Postal Service responds to the APWU’s allegations by stating that: 1) the grievance the union seeks to arbitrate is not arbitrable as a matter of law because it concerns a subject that is nonnegotiable and, therefore, outside the province of the collective bargaining agreement ("CBA"); 2) the Union seeks to vest an arbitrator with the authority to decide retirement questions that are statutorily reserved for the Office of Personnel Management; and 3) that the Postal Service complied fully and in all respects to its obligations, both statutory and contractual. Finally, regardless of this Court’s decision on arbitrability, there is no basis for compelling arbitration on an expedited basis. As plaintiff cannot demonstrate a likelihood of success on the merits, and has failed to make a showing of bona fide irreparable harm in the absence of preliminary relief, the Motion for Preliminary Injunction should be denied. Moreover, because plaintiff’s complaint fails to state a claim upon which relief may be granted, this matter should be dismissed.
II. STATEMENT OF FACTS
The Postal Service is an independent establishment of the Executive branch of the United States government established in 1970 pursuant to the Postal Reorganization Act ("PRA") (39 U.S.C. § 101 et seq.). The National Labor Relations Act ("NLRA") largely governs labor relations in the Postal Service. (39 U.S.C. §1209(a)).
The APWU represents employees who were either members of unions statutorily recognized by the PRA, and to which it is a successor, or employees who belong to an APWU bargaining unit certified in accordance with the NLRA. Collectively, the APWU represents approximately 309,000 postal employees working in various classifications covered by three individual and separately negotiated collective bargaining agreements. The three CBAs are: (1) the National Agreement covering a bargaining unit consisting of approximately 307,000 maintenance employees, motor vehicle service employees, clerks, mail equipment shop employees, and material distribution center employees ("National Agreement"); (2) the IT/ASC agreement covering a bargaining unit consisting of approximately 1,400 employees working in the Information Technology and Accounting Service Centers
1 ("IT/ASC Agreement"); and (3) the Operating Services agreement covering approximately 80 custodial and maintenance employees working at the Postal Service Headquarters in Washington, D.C. ("Operating Services Agreement").On December 18, 2001, the current National Agreement was implemented in accordance with the decision of an interest arbitration panel. That CBA was to expire on November 20, 2003.
2 During the fall of 2002, William Burrus, President of the APWU, and senior postal officials, including Anthony Vegliante, Vice President of Labor Relations, negotiated a two-year extension of the National Agreement. This agreement extended the contract until November 20, 2005. Among the issues discussed during the negotiations was the Postal Services’ need to reduce the workforce covered by the National Agreement because of declining mail volume, automation, and new operating procedures. The parties addressed this concern by agreeing to a Memorandum of Understanding on Excessing ("MOU") that provided that the Postal Service would request permission from OPM to offer eligible employees covered by the National Agreement an opportunity to take voluntary early retirement.3 Douglas Tulino, Manager of Labor Relations Policies and Programs, conducted the discussions concerning the MOU for the Postal Service. Exhibit A (Declaration of Douglas Tulino ("Dec. D.T."), para. 4)Thecrux of the MOU was the Postal Service’s agreement to "petition the Office of Personnel Management for the purpose of implementing Section 8336(d)(2) (voluntary early retirement -CSRS) and Section 8414(b)(1)(B) (voluntary early retirement - FERS) of Title 5, United States Code for all eligible APWU represented employees, subject to the limitations imposed by OPM . . . ." (emphasis added). In accordance with its obligations, the Postal Service petitioned OPM on January 23, 2003 for authority to offer VER to postal employees represented by the APWU under the National Agreement. On March 28, 2003, OPM notified the Postal Service that it could not grant the Postal Service’s request for VERA based on workforce reshaping until its new regulations pertaining to VERA’s were published. Exhibit A (Decl. D.T., para 11)
On June 13, 2003, OPM published its new VERA regulations and granted the Postal Service’s request to offer VER to eligible postal employees represented by the APWU, subject to statutory and regulatory limitations. Exhibit A (Dec. D.T., para 12). The authority to offer VER expired on September 30, 2003 under the June 13 letter. OPM’s approval made the offer of any VER subject to the limitations and instructions outlined in the approval letter, namely sections 8336(2)(d)(iii) and 8414(b)(1)(B)(iv)(III) of Title 5, and sections 831.114 and 842.213 of 5 CFR.Sections 8336(2)(d)(iii) and 8414(b)(1)(B)(iv)(III) provide that employees are qualified for early retirement only if, among other requirements, they are "identified as being in positions which are becoming surplus or excess to the agency’s future ability to carry out its mission effectively . . . . " Sections 831.114 and 842.213 state that 5 U.S.C. 8336(d)(2) and 8414(b)(1)(B) "covers both the basis for an agency’s request for voluntary early retirement and OPM’s subsequent determination concerning the request."
In accordance with these limitations, the Postal Service identified the positions that did not meet the eligibility requirements of 5 U.S.C. 8336(d)(2) and 8414(b)(1)(B) for voluntary early retirement and instituted plans to offer voluntary early retirement to those employees represented by the APWU that met the requirements for early retirement as approved by OPM and permitted by the statute.
The APWU immediately invoked the National Agreement’s Adminstrative Dispute Resolution procedures on July 28 and grieved the Postal Service’s failure to offer voluntary early retirement to all employees represented by the APWU. On August 5, the parties met and were unable to resolve the dispute. Exhibit B (Declaration of Patricia Heath ("Dec. P.T."), para. 3-8). The meeting failed to resolve the central issue of whether OPM could and did authorize the Postal Service to offer VER to employees who were not excess to the needs of the agency or whose positions could not be backfilled with existing qualified employees.
At the request of APWU President William Burrus, the Postal Service arranged a meeting with OPM on August 12, 2003. Exhibit A (Dec. D.T., paras. 14 and 15). The purpose of the meeting was to provide OPM an opportunity to explain the scope of its approval and the limitations imposed by statute and regulation on VER to Mr. Burrus and the APWU’s counsel. During that meeting, APWU’s counsel, Mr. Darryl Anderson, posed various questions concerning the scope of the early retirement authority granted by OPM, and specifically asked whether Title 5 permitted employees to be offered voluntary early retirement if their positions were not excess to agency needs or could not be backfilled by existing qualified employees. OPM told Messrs. Burrus and Anderson that:
[I]t is not appropriate to offer voluntary early retirement to an employee occupying a position that remains necessary to the performance of the mission of the Postal Service unless such position could be filled by a qualified employee in a surplus or excess position.
See Exhibit C (Declaration of Kevin Mahoney ("Dec. K. M."), para 6).
The delay in obtaining authority to offer voluntary early retirement to eligible employees made it impossible to offer VER to eligible employees by September 30, 2003. On August 6, 2003, the Postal Service petitioned OPM to extend its VER authority from through December 31, 2004. OPM granted the extension on September 9, 2003. Exhibit A (Dec. D.T. para. 16). The September 9 letter recast the authorization by making specific reference to the authorized occupational series and levels in order to ensure consistency with the applicable statutory and regulatory criteria. Exhibit C (Dec. K. M., para 7).
The APWU disregarded OPM’s position regarding employee eligibility and submitted the following grievance for arbitration on September 4:
Whether the Employer violated the parties December 19, 2002, (sic) Memorandum of Understanding on Excessing when it refused to offer voluntary early retirement to all eligible employees. The APWU’s grievance is premised on its argument that all APWU represented employees are eligible for voluntary early retirement regardless of whether they occupied a position that remains necessary to the performance of the mission of the Postal Service or occupy a position that cannot be filled by a qualified employee in a surplus or excess position. The Postal Service rejected the Union’s demand to arbitrate the aforestated issue because it was not arbitrable. Exhibit B (Dec. P. H., para. 3 - 8).
III. LEGAL AUTHORITY FOR VERA
The Postal Service does not maintain its own retirement system. The PRA provides that postal employees are covered by one of the federal government’s retirement programs generally available to other federal employees — the Civil Service Retirement System (CSRS) (Chapter 83 of Title 5) or the Federal Employee Retirement System (FERS) (Chapter 84 of Title 5). Section 1005 of Title 39 provides that:
(d)(1) Officers and employees of the Postal Service (other than the Governors) shall be covered by Chapters 83 and 84 of Title 5. The Postal Service shall withhold from and shall pay into the Civil Service Retirement and Disability Fund the amounts specified in or determined under such chapter 83 and subchapter II of such chapter 84, respectively. The Postal Service shall pay into the Federal Retirement Thrift savings Fund the amounts specified in or determined under subchapters III and VII of such chapter 84.
(2) The provisions of subsection (g) of section 5532, subsections (i) and (l)(2) of subsection 8344, and subsections (f) and (i)(2) of sections 8468 of title 5 shall apply with respect to the Postal Service. For purposes of applying such provisions —
(A) any reference in such provisions to the head of an Executive agency shall be considered a reference to the Postmaster General; and (B) any reference in such provisions to an employee shall be considered a reference to an officer or employee of the Postal Service.
Chapters 83 and 84 of Title 5 specifically set out, among other things, the eligibility requirements for federal employees to receive a retirement annuity from CSRS or FERS. Pertinent to this case are the requirements regarding voluntary early retirement ("VER"). These chapters set out very specific requirements that control the circumstances where a federal agency may be permitted to offer employees the opportunity to take voluntary early retirement .
Chapters 83 and 84 specifically restrict voluntary early retirement to "positions which are becoming surplus or excess to the agency’s future ability to carry out its mission effectively." (5 U.S.C. §§ 8336 (d)(2)(D) (iii) and 8414 (b)(1)(B)(iv)(III)). Sections 8336 (d)(2)(E) and 8414
(b)(1)(B)(v) also provide that voluntary early retirement approval must be made on the basis of:
(I) 1 or more organizational units;
(II) 1 or more occupational series or levels;
(III) 1 or more geographical locations;
(IV) specific periods;
(V) skills, knowledge, or other factors related to a position; or
(VI) any appropriate combination of such factors.
The Office of Personnel Management ("OPM") has the exclusive authority to approve VER programs. Title 5 specifically vests the Director of OPM with exclusive authority to "execute, administer, and enforce . . . the other activities of the Office including retirement and classification activities. . . ." (5 U.S.C. § 1103(a)(5)(B)).
IV. PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION SHOULD BE DENIED AND PLAINTIFF’S PETITION SHOULD BE DISMISSED
This court must weigh four factors in determining whether plaintiff is entitled to a preliminary injunction: (1) whether the plaintiff has a substantial likelihood of success on the merits; (2) whether the plaintiff would suffer irreparable injury were an injunction not granted; (3) whether an injunction would substantially injure other interested parties; and (4) whether the grant of an injunction would further the public interest. Al-Fayed v. Central Intelligence Agency, 254 F.3d 300, 303 (D.C. Cir. 2001). Where, as here, the plaintiff seeks a preliminary injunction for the purpose of compelling arbitration, it must also establish that the injunction is necessary to protect the arbitral process.
4 Plaintiff has failed to set forth facts sufficient to satisfy any of these requirements.On a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6), this Court must construe the allegations and facts in the complaint in the light most favorable to the plaintiffs and must grant the plaintiffs the benefit of all inferences that can be derived from the alleged facts. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994). However, the Court need not accept inferences or conclusory allegations that are unsupported by the facts set forth in the complaint. Kowal, 16 F.3d at 1276. In deciding whether to dismiss a claim under Rule 12(b)(6), the Court can only consider the facts alleged in the complaint, documents attached as exhibits or incorporated by reference in the complaint, and matters about which the Court may take judicial notice. EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). A Court should dismiss a claim pursuant to Rule 12(b)(6) only if the defendant can demonstrate "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley, 355 U.S. at 45-46. If matters outside the pleadings are considered, the motion shall be treated as one for summary judgment under Rule 56. See Fed. R. Civ. P. 12(b).
Plaintiff Does Not Have A Substantial Likelihood of Success On The Merits
The plaintiff petitions this Court to compel the defendant to arbitrate an issue that is not arbitrable. Plainly put, the plaintiff wants this court to relegate to an arbitrator the power to decide who will and who will not be granted early retirement under the Civil Service Retirement System ("CSRS") (Chapter 83 of Title 5 U.S. Code) and the Federal Employee Retirement System ("FERS") (Chapter 84 of Title 5 U.S. Code). Plaintiff attempts to characterize the issue as a simple labor dispute concerning the interpretation of a provision of a collective bargaining agreement —"Whether the employer violated the parties’ December 19, 2002 Memorandum of Understanding on Excessing when it refused to offer voluntary early retirement to all eligible employees represented by the APWU and, if so, what shall be the remedy?" (First Amended Petition ("Petition"), Para. 30). However, the plaintiff’s Petition and Memorandum of Law make it clear that what it really wants is to substitute an arbitrator’s determination regarding an employee’s eligibility to retire under the federal government’s employee retirement plans for that of the Office of Personnel Management, the agency that is statutorily mandated to make such decisions.
Plaintiff acknowledges in its Petition that the MOU required the Postal Service to offer VER only to those eligible employees that OPM determines were statutorily entitled to early retirement. ("[T]he Postal Service will petition the Office of Personnel Management for the purpose of [offering VER] to all eligible APWU represented employees subject to restrictions imposed by law or by OPM." (Petition, Para 14).) Despite this acknowledgment, the plaintiff, which is dissatisfied with OPM’s refusal to violate the law and approve VER eligibility for every postal employee represented by the APWU, seeks to have an arbitrator assume the role Congress exclusively reserved to OPM. To this end, the plaintiff has selectively chosen factual snipets that it has woven into an argument that can only be characterized as threadbare whole cloth. For the following reasons, Plaintiff’s arguments are without merit.
A. Defendant Cannot Be Compelled to Arbitrate a Matter That It Did Not Agree to Arbitrate
It is well settled that federal labor law embodies a policy favoring arbitration of labor disputes where the parties have negotiated a collective bargaining agreement containing an arbitration procedure. United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 577-78 (1960). But it is equally well established that not all disagreements between an employer and a union are arbitrable even though the parties have negotiated an arbitration procedure in their collective bargaining agreement. The Supreme Court has repeatedly held that under the National Labor Relations Act, ("NLRA"), 29 U.S.S. §§ 151 et seq., labor disputes concerning issues of "procedural" arbitrability should be decided by arbitrators while issues raising questions of "substantive" arbitrability are reserved for the courts. AT&T Technologies, Inc. v. Communications Workers of America, 475 U.S. 643, 651 (1986); John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546-47 (1964); United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960).
The Third Circuit succinctly summarized the law applicable to questions of "substantive" and "procedural" arbitrability:
The term "substantive arbitrability" derives from National Labor Relations Act jurisprudence but has been utilized in other contexts. It is used to describe the question whether the parties’ dispute involves a subject matter that is within the ambit of a contractual arbitration agreement. The Supreme Court used the term "substantive arbitrability"…to differentiate "substantive" issues – whether the parties have agreed to arbitrate the subject matter of the dispute –from "procedural" issues – "whether grievance procedures or some part of them apply to a particular dispute, whether such procedures have been followed or excused, or whether the unexcused failure to follow them avoids the duty to arbitrate." The question of "substantive arbitrability" – that is, "whether a collective bargaining agreement creates a duty for the parties to arbitrate the particular grievance" – is, as the Supreme Court instructs, "undeniably an issue for judicial determination." Issues of "procedural arbitrability," on the other hand, are for the arbitrator to decide.
Independent Association of Continental Pilots v. Continental Airlines, 155 F.3d 685, 692 (3d Cir. 1998) (citations omitted); see also, Larsen v. American Airlines, Inc., 313 F.2d. 599, 603 (2d Cir. 1963).
Whether a party is required to arbitrate a labor dispute is determined by the parties’ collective bargaining agreement. In United Steel Workers, the Supreme Court said "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed to submit." 363 U.S. at 582. Similarly, in Wiley & Sons v. Livingston, 376 U.S. 543, 546-47 (1964), the Court said:
The duty to arbitrate being of contractual origin, a compulsory submission to arbitration cannot precede judicial determination that the collective bargaining agreement does in fact create such a duty. Thus, just as an employer has no obligation to arbitrate issues which it has not agreed to arbitrate, so a fortiori, it cannot be compelled to arbitrate if an arbitration clause does not bind it at all.
This basic principal of contract and labor law, when applied to the facts in this case, bars the plaintiff’s demand for arbitration to determine whether all employees represented by the plaintiff must be offered a VER because the parties’ CBA does not cover the retirement plans at issue. Retirement plans available to postal employees, CSRS and FERS, are creatures of Congressional legislation, not labor-management negotiations between the Postal Service and the APWU.
5 As previously noted, the PRA specifically provides that postal employees will be covered by the Civil Service Retirement System (Chapter 83 of Title 5 U.S. Code) or the Federal Employees Retirement System (Chapter 84 of Title 5 U.S. Code). (39 U.S.C. § 1005(d)). Congress vested OPM, not the Postal Service and/or the APWU, with the exclusive statutory responsibility to execute, administer, and enforce the provisions of Chapters 83 and 84 of Title 5. (5 U.S.C § 1103(a)(5)(B))6. Postal Service regulations and the CBA recognize the statutory nature of the CSRS and FERS retirement plans and the fact that their application and administration has been exclusively vested in OPM by law. Paragraphs 561.27 and 581.28 of the Employee and Labor Relations Manual (ELM) specifically state that retirement plans are governed by the CSRS or FERS law and policies and regulations issued by OPM, including those governing employee eligibility. Similarly, the parties’ CBA states that retirement plans are governed by statute and not the collective bargaining agreement. Article 21.2 Section 3, Retirement, in the National Agreement states: "The provisions of Chapters 83 and 84 of Title 5 U.S. Code and any amendments thereto, shall continue to apply to employee covered by this Agreement."The National Agreement’s alternative dispute resolution process is inapplicable to the matters at issue here because federal retirement programs are regulated by statute, which renders them prohibited subjects for collectively bargaining.
B. Arbitration is Inappropriate Because the APWU’s Dispute is with the Office of Personnel Management
A basic tenet of labor arbitration is that an arbitrator can only decide issues that arise between the parties under their labor contract. Plaintiff appears to have forgotten this fundamental precept because in the instant matter the Union’s dispute is with the Office of Personnel Management, not the Postal Service.
The APWU represents to this Court that it is embroiled in a routine labor dispute with the Postal Service that should be resolved by an arbitrator under the terms of the parties’ National Agreement. However, even the most cursory examination of the Union’s articulated issue, when juxtaposed against the facts in this matter, shows that the Union’s real complaint is that the Office of Personnel Management has taken a position that the Union does not like. Because the plaintiff has no means to directly challenge and reverse OPM’s position, it seeks to compel arbitration in hopes of securing an arbitral award that directs the Postal Service to do what the law and OPM say it cannot do – offer voluntary early retirement to employees who are not in positions that are excess, or surplus, to the Postal Service’s needs.
The APWU alleges the following facts to establish that the defendant breached the terms of the MOU. 1) The parties entered into an MOU that required the Postal Service to offer all eligible APWU represented employees a VER, subject to the limitations imposed by OPM. 2) OPM approved the Postal Service’s request to offer VERs to all employees represented by the APWU subject to only four limitations which are set out in its June 23, 2003 letter to the defendant. The four limitations are: a) employees hired less than 32 days before the Employer’s January 23, 2003 request; b) employees not represented by the APWU; c) limited-term employees; and d) employees notified that their employment is to be terminated involuntarily for misconduct or unsatisfactory performance. ("the four limitations"). 3) The Postal Service impermissibly refused to offer a VER to some APWU represented employees who are not included within the four limitations.
Though seemingly straightforward, the APWU’s portrayal of the dispute between the parties is manifestly inaccurate. The crux of the dispute is not whether the Postal Service refused to offer VER to all eligible employees represented by the APWU. The crux of the dispute concerns the delineation of the limits of the authority OPM granted to the Postal Service to offer VER to its employees. In short, the focus of the underlying issue in this matter is not what the Postal Service has or has not done, it is what OPM did or did not do. In its Petition and Memorandum of Law, the plaintiff asserts that OPM gave the Postal Service universal authority to offer VER to all but a small number of employees represented by the Union who meet the age and time in service requirements for VER. It further asserts that the Postal Service has unilaterally limited the group of approved employees, thereby denying thousands of employees the opportunity to take early retirement. The plaintiff’s assertions concerning the scope of authority given to the Postal Service by OPM are wrong, and it knows them to be so.
The MOU required the Postal Service to petition OPM for authority to offer voluntary early retirement to eligible employees represented by the APWU, subject to the limitations established by OPM. On June 23, OPM approved the Postal Service’s petition to offer VER to eligible employees. OPM’s approval letter clearly states the following. 1) The Postal Service is authorized to use voluntary early retirements under sections 8336(d)(2) and 8414(b)(1) of Title 5 U.S.C. 2) Voluntary early retirement could only be offered to eligible employees, subject to the limitations and instructions contained in the letter and sections 831.114 and 842.213 of 5 C.F.R. 3) The following employees were specifically excluded: (a) Any employees who have not been continuously on the agency roles since at least 31 days before the date of your request, January 23, 2003; (b) Any USPS employees who are not represented by the American Postal Workers Union, (c) Employees serving under time-limited appointments; and (d) Employees in receipt of a decision of involuntary separation for misconduct or unsatisfactory performance.
In accordance with these instructions, the Postal Service identified specific work classifications filled by APWU represented employees that were becoming surplus or excess to the agency’s needs. This process comported with legal and statutory requirements, particularly sections 5 U.S.C. §§ 8336(d)(2) and 8414(b)(1) that mandate that employees offered VER must occupy positions "which are becoming surplus or excess to the agency’s future ability to carry out its mission effectively", and sections 831.114 and 842.213 that require OPM and the agency to comply with the provisions of 5 U.S.C. §§ 8336(d)(2) and 8414(b)(1) in offering VERs. The APWU had been advised during the MOU negotiations that not all employees would meet the requirements for a VER. See Exhibit A (Dec. D. T., para 5).
The APWU contends that OPM’s June 23 letter did not exclude any APWU represented employee except for a minute number that might have fallen within the "four limitations." The Union specifically rejects the Postal Service’s position that OPM’s June 23 letter contained additional limitations and requirements that restricted the agency’s flexibility in offering VER to employees. The Union’s argument is disingenuous.
On August 12, 2003, at the request of the President of the APWU, Mr. Burrus, the Postal Service arranged a meeting with OPM to discuss what limitations OPM imposed on the Postal Service’s ability to offer VER to its employees. Exhibit A (Dec. D. T., para 14). Mr. Burrus and the APWU’s counsel, Mr. Anderson, took an active part in the meeting and posed questions specifically addressing the limits of the authority contained in OPM’s June 23 letter. The Union’s counsel specifically asked whether the "four limitations" were the only limitations imposed on the Postal Service by OPM in the June 23 letter. The Union was specifically told by OPM that the statutory and regulatory references in the opening and closing paragraphs of the letter also contained restrictions and limitations proscribing the Postal Service’s actions with respect to offering VER. Exhibit A (Dec. D. T., para 15). In particular, there were limitations that statutorily barred the Postal Service from offering VERs to employees whose positions were not surplus. In response to a question posed by plaintiff’s counsel, OPM specifically told the Union that it was "not appropriate [for the Postal Service] to offer voluntary early retirement to an employee occupying a position that remains necessary to the performance of the mission of the Postal Service unless such position could be filled by a qualified employee in a surplus position."
9 Exhibit C (Dec. K. M., para. 6).Notwithstanding OPM’s clear explanation of its letter and the restrictions it imposed on the Postal Service with respect to offering VER, the Union persists in its specious argument that the June 23 letter contained only the "four limitations." Unable to secure a favorable determination from OPM, the Union now asks this Court to turn the matter over to an arbitrator so that it can challenge OPM’s determination with regard to the limitations that OPM imposed on the Postal Service. In short, the plaintiff is asking this Court to order an arbitration to determine whether OPM’s explanation of the restrictions contained in its June 23 letter are in fact the restrictions it imposed on the Postal Service. Clearly, the focal point of the APWU’s request for arbitration is OPM’s actions, not the Postal Service’s. In this matter, the Postal Service merely complied with the instructions provided by OPM, as it is required by law to do.
The Union’s argument that the Postal Service agreed to arbitrate all disputes regarding the MOU is without import. As is clearly evident, the real dispute here is not between the Postal Service and the APWU, it is between OPM and the APWU. Simply put, if OPM, the agency statutorily in charge of apply and enforcing federal retirement programs and statutes, formally instructs the Postal Service that it can offer VERs to employees who occupy positions that remain necessary to the performance of the mission of the Postal Service regardless of whether these positions could be filled by a qualified employee in a surplus position, the Postal Service would follow the instructions provided and, in accordance with its agreement with the APWU, offer VER to the group of employees currently in dispute.
Because OPM is not a party to the National Agreement, and because the real dispute in this matter is what OPM did or did not do, the plaintiff’s request to compel arbitration should be denied. A labor arbitrator, with the limited authority granted him through a collective bargaining agreement, simply has no legal basis to direct the implementation of federal employee retirement programs that are statutorily controlled by OPM.
C. The Postal Service Cannot be Compelled to Arbitrate Matters that are Statutorily Excluded from Collective Bargaining
Congress ensured that postal employees would be covered by the same retirement system generally available to other federal employees when it enacted the PRA. Section 1005(d) of Title 39 specifically provides that postal employees will be covered by the Civil Service Retirement System or the Federal Employees Retirement System. Federal law bars these programs from being the subject of collective bargaining between the Postal Service and its unions. Section 1005 of the PRA sets out which laws relating to federal employees may and may not be subjects of collective bargaining. Sections 1005(a) and (f) identify the employment matters about which the Postal Service may negotiate. Federal retirement programs are not included within these sections. The postal employees’ right to participate in the federal retirement programs is set out in section 1005(d). That section clearly mandates that postal employees "shall be covered" by federal retirement programs, thus exhibiting Congress’ intent to explicitly exclude federal retirement programs from the collective bargaining process. Moreover, Congress vested the Office of Personnel Management with the exclusive responsibility to administer all federal retirement programs. Title 5 U.S.C. § 1003 (5)(B) specifically vests the Director of the OPM, not the head of the various federal agencies, with the exclusive responsibility to execute, administer and enforce the federal retirement programs. OPM’s authority and ability to ensure that the federal retirement system operated in an efficient, effective, fair, and consistent manner would be eviscerated if the administration of federal retirement programs was subject to arbitration where "industrial justice" rather than law controls the employment relationship.
Plaintiff argues that the MOU compels the Postal Service to arbitrate the instant dispute. The plaintiff’s view of the arbitration provision is overbroad. The MOU specifically limits the requirement to arbitrate disputes to those disputes "arising out of this memorandum." The issue that the Union wants to arbitrate does not arise "out of " the MOU. The MOU places very specific requirements on the Postal Service. The MOU imposes two obligations on the Postal Service with regard to a VER program. First, it requires the Postal Service to petition OPM for authority to offer voluntary early retirement to all eligible employees represented by the APWU. The Union does not contend that the Postal Service failed to fulfill this contractual provision. Second, the MOU requires the Postal Service to effectuate an early retirement program pursuant to 5 U.S.C. §§ 8336(2)(d) and 8414(b)(1)(B) and limitations imposed by OPM.
As previously noted, the issue that the Union seeks to arbitrate has nothing to do with how the Postal Service is implementing the requirements of the statute or OPM’s instructions. The Union’s grievance focuses solely on OPM’s decision to require the Postal Service to comply with the provisions of Title 5 and OPM’s implementing instructions. Because the agreement to arbitrate disputes arising out of the MOU implicitly refers to disputes arising out of the conduct of the parties to the contract, the arbitration provision does not apply to matters solely within the control of third parties who are not bound by the CBA.
D. Plaintiff’s Petition Cannot be Granted Because it Violates Federal Law
It is well established that private agreements that violate federal statutes cannot be enforced.
In Kaiser Corporation v. Mullins et al., 455 U.S. 72, 83-84 (1982), the Supreme Court said:
It is also well established . . .that a federal court has a duty to determine whether a contract violates federal law before enforcing it. "The power of the federal courts to enforce the terms of private agreements is at all times exercised subject to the restrictions and limitations of the public policy of the United States as manifested in . . . federal statutes. . .. Where the enforcement of private agreements would be violative of that policy, it is the obligation of courts to refrain from such exertions of judicial power." Hurd v. Hodge, 334 U.S. 24, 43-35 (1948) (footnotes omitted)
The Union’s Petition requests that this Court order the Postal Service to arbitrate an issue which, if Plaintiff prevails, would result in an arbitral award that violates federal law. The APWU’s grievance setting out its objection to OPM’s interpretation of its June 23 letter is squarely grounded on the proposition that OPM did not prohibit the Postal Service from offering VERs to employees in positions that are not "becoming surplus or excess to the agency’s future ability to carry out its mission effectively."
It is beyond challenge that 5 U.S.C. §§ 8336(2)(d)(iii) and 8414(b)(1)(B)(iv)(III) unequivocally prohibit an agency from offering a VER to an employee whose position is not surplus or excess. As OPM clearly explained to Mr. Burrus, it is "not appropriate [for the Postal Service] to offer voluntary early retirement to an employee occupying a position that remains necessary to the performance of the mission of the Postal Service unless such position could be filled by a qualified employee in a surplus position." See Exhibit C (Dec. K. M., para 6).
This Court should deny the Union’s Petition to compel arbitration because the plaintiff seeks to obtain a result that violates the law.
Plaintiff will not Suffer Irreparable Injury
Plaintiff requests that the Court order an expedited arbitration to prevent alleged irreparable injury to a small number of employees who it contends are entitled to early retirement under the terms of the MOU. Plaintiff’s request is not warranted either as a matter of law or fact and should be denied for two reasons: (1) the Union now seeks to avoid the very process to resolve disputes that it knowingly agreed to when it entered into the MOU; and (2) the facts do not support any reasonable conclusion that any employees are in imminent peril of permanently losing their asserted right to be offered an VER.
Assuming, arguendo, that the plaintiff’s issue is arbitral, the plaintiff is not entitled to an expedited arbitration. Throughout its Petition and Memorandum of Law, plaintiff repeatedly tells this Court that the parties entered into an agreement and asks this court to enforce its terms. Interestingly, when it comes to the process by which it seeks to enforce its view of the agreement, the Union contends that the MOU’s terms should be ignored and a process more to their liking at this time should be ordered by the Court. The simple fact is that the APWU asks this court to relieve it of the obligations it knowingly undertook when it executed the MOU. Plaintiff admits that the parties’ CBA contains a well established administrative dispute resolution procedure that has worked well. The defendant submits that no legal or factual basis exists for this court to set aside the dispute resolution procedures that the parties agreed to use.
Courts applying the Federal Arbitrations Act ("FAA") and the Boys Market exception have consistently held that agreements to arbitrate disputes are contracts and must be interpreted under the rules of contract law. One of the basic tenets of contract law is the sanctity of the terms that the parties have agreed to. Except in the most extreme circumstances, courts do not have the authority to alter the terms of the parties’ agreement, including the terms of an agreement to arbitrate. Cargill, Rice, Inc. v. Empresa Nicaraguense deAlimentos, 25 F.3d 223 (4
th Cir. 1994); American Centennial Insurance Co. v. National Casualty Co., 951 F.2d 107 (6th Cir. 1991); Avis Rent A Car System v.Garage Employees Union, 791 F.2d 22 (2d Cir. 1985); Roney and Co. v. Goren, 875 F.2d 1218 (6th Cir. 1989); International Brotherhood of Electrical Workers Local Union v. FirstEnergy Corp., 233 F. Supp. 2d 913 (W.D.Oh. 2002); Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. McCullen, 1995 U.S. Dist. LEXIS 2217, 1995 WL 799537 (S.D. Fla, Dec. 13, 1995).Article 15.5.A.3 of the National Agreement sets out the CBA’s procedure for resolving disputes by arbitration. Those procedures do not permit either party to demand an expedited arbitration on national level disputes or to advance cases on the national arbitration docket except in two instances, a) grievances challenging technological and mechanization changes and grievances challenging new work and/or time standards. Exhibit A (Dec. D. T., para 14). To the contrary, the parties have agreed that the best way to resolve their disputes, regardless of their relative importance, is to take them on a first in, first out basis. This procedure eliminates potential additional disputes between the parties which would assuredly arise as to which grievances should be heard first. The parties’ intent to follow the first in, first out approach to arbitrating cases at the National level is even clearer when one considers that the parties’ specifically agreed to allow either party to advance one arbitration case per month to the top of the docket in District arbitrations.
10 Exhibit A (Dec. D.T., para 17 - 18).The Union was fully aware of the parties’ arbitration procedures when it agreed to use them to resolve disputes arising out of the MOU. It now wants this court to rewrite terms of the bargain it made because it no longer finds those terms to its liking. The Union argues that expedited arbitration is essential to avoid irreparable injury to the employees that will not be offered VER by the Postal Service. The Union contends that because it takes years to get a case through national level arbitration, the Postal Service’s VER authorization will expire before the affected employees will have an opportunity to request voluntary early retirement should the Union prevail in arbitration. The Union’s arguments are unpersuasive.
Courts should not grant a party’s request for expedited arbitration where the arbitration agreement does not contain such a procedure absent extraordinary circumstances clearly establishing that the union will suffer an injury "so irreparable that a decision of the . . . [arbitrator] in the . . .[union’s] favor would be but an empty gesture." Board of Locomotive Engineers v. Missouri-Kansas-Texas R.R., 363 U.S. 528, 534 (1960). "Irreparable injury does not simply mean "any injury resulting from a breach of contract that would not be fully addressed by an arbitral award." Local 15, I.B.E.W. v. Exelon Corporation, 191 F. Supp.2d 987, 992 (N.D. Ill. 2001) (citing International Association of Machinists and Aerospace Workers v. Panoramic Corp., 668 F.2d 276, 285 (7
th Cir. 1981)). Conclusory statements are insufficient to establish proof of irreparable harm. Facts establishing irreparable injury are required. Excelon Corp., 191 F. Supp.2d at 992.The Union’s assertion that losing an opportunity to apply for VER constitutes an irreparable injury does not meet the standard set out by the courts. Unlike the situation where an employee will lose his or her employment absent court action, the result in this case, assuming, arguendo, that the Union is correct, would be that the employee would continue working until his or her regular retirement date. The defendant submits that this does not rise to the extreme level of injury required for this Court award preliminary injunctive relief or to disregard the terms of the parties’ collective bargaining agreement, especially where, as here, the plaintiff could have made expedited arbitration a condition of the MOU but did not do so.
The Union’s request for expedited arbitration is premature and based on conclusory statements and speculative fears, namely that arbitration under the terms of the National Agreement would not be concluded until after the Postal Service’s authority to offer VER expired. The Postal Service’s authority to offer VERs does not expire until December 31, 2004, some 15 months hence. Under the terms of the MOU the employer may offer VER to employees anytime during this period.
11 Moreover, the plaintiff admits that the parties have agreed to expedite the arbitration of national level grievances in the past. There is no reason to believe that the parties will not agree, if necessary, to expedite any arbitration concerning VER opportunities. Indeed, the Postal Service has not refused to arbitrate or to expedite the arbitration of any arbitrable issue concerning the VER program. Where the defendant has not refused to arbitrate an issue, it is inappropriate for the court to issue an order compelling arbitration or setting an arbitration schedule that should be left to the labor-management process. Merrill Lynch, Pierce, Fenner & Smith, 1995 U.S. Dist. LEXIS 22177, 1995 WL 799537 at *1-2. If, at some point closer to the end of the authorization period, the evidence establishes that the Postal Service has frustrated attempts to arbitrate an issue arising under the MOU, then a court may consider whether it is appropriate to order expedited arbitration. Certainly, under the current facts, such an Order is inappropriate.An Injunction Would Not Further the Public Interest
Two fundamental public interests are present in this case. (1) The public’s interest in a properly administered federal retirement system. (2) The public’s interest in preserving the integrity of the arbitral process. On both accounts, the public’s interest is not served by the Union’s request for an order compelling arbitration.
Congress has established various well defined retirement systems for federal employees, two of which, CSRS and FERS, are involved in this case. The integrity of the federal retirement system is grounded squarely on its statutory basis that provides consistency and reliability. The statutes require that OPM, a neutral agency that is well versed in the intricacies of the federal retirement laws and systems, is to provide consistent execution, administration, and enforcement of federal retirement programs, and a more extensive judicial review than is available to a party moving to vacate an arbitration award.
The effect of the plaintiff’s Petition, if granted, is to unravel Congress’ carefully thought out retirement system and replace it with the uncertain, ever changing, and minimally reviewable arbitration process. As previously stated, the underlying issue in this matter is OPM’s determination, interpretation, and application of the statutory limitations it imposed on the VER authority it granted the Postal Service. The Union seeks to have an arbitrator determine what the limitations OPM imposed. In short, the Union seeks to vest an arbitrator with the authority Congress gave exclusively to OPM. It is axiomatic that arbitrators dispense "industrial justice," not judicial decisions. They interpret the labor contract, not the law. Indeed, it has long been established that arbitrators are not bound exclusively by the law if they determine that it conflicts with their opinion of what a collective bargaining agreement provides. Burchell v. Marsh, 58 U.S. 344 (1854); Wilko v. Swan, 346 U.S. 427 434-36 (1953). Moreover, if they apply the law incorrectly, the parties have little recourse. The courts have repeatedly held that an erroneous application of the law in reaching an arbitral decision is insufficient to set aside an arbitral award. Perma-Line Corp. of America v. Painters Local 230, 639 F.2d 890, 892-93 (2d Cir. 1981). To vacate an award, the moving party must meet a significantly more stringent standard and show that the decision violated a well established public policy. Paperworkers v. Misco, 484 U.S. 29, 43 (1987). Nor is there continuity in arbitral decisions. Different arbitrators interpreting similar factual scenarios may reach diametrically opposite conclusions.
Congress intended that public servants enjoy a reliable retirement system that could be relied on to provide the benefits promised, and do so in a consistent manner. Subjecting the retirement system to the vagaries of the arbitration process does not serve the public’s interest.
An Injunction Would Adversely Affect the Interests of the Postal Service
The Postal Service would be adversely affected by compelling it to submit disputes concerning the Postal Service’s compliance with OPM’s directions regarding the federal retirement system to arbitration. The President’s Commission of the United States Postal Service recently issued its report and recommendations concerning the current status of the Postal Service and its recommendations for ensuring its viability for the future. One critical issue that the Commission identified was the Postal Service’s need to "determine the right size of the Postal workforce and to ensure appropriate flexibilities in its deployment." Exhibit D (Report of the Presidential Commission on the United States Postal Service, Executive Summary and pg. 107). To implement the recommendations of the Presidential Commission, the Postal Service has begun reviewing its personnel needs both as to complement and location, and has begun the process of "right sizing" the organization. The MOU is a part of the Postal Service’s efforts to address the critical issues identified by the Presidential Commission.
In addressing these needs, it is imperative that the Postal Service be able to rely on the guidance and directives of OPM in matters relating to employee retirement benefits. Subjecting OPM decisions and guidance to the vagaries of the arbitral process, coupled with the endless delays that could be caused by a flood of grievances filed by the Union on behalf of employees with their own views about their entitlements, would seriously undermine the Postal Service’s ability to effectively and efficiently manage its restructuring or plan for the future.
V. CONCLUSION
Based upon the foregoing, defendant respectfully requests that this Honorable Court deny the plaintiff’s Petition for a Preliminary Injunction , deny plaintiff’s Petition to Compel Arbitration, and dismiss its Complaint with prejudice.
Respectfully submitted,
_________________________________
ROSCOE C. HOWARD, JR. D.C. BAR # 246460
United States Attorney
_________________________________
MARK E. NAGLE, D.C. BAR # 416364
Assistant United States Attorney
_________________________________
PETER D. BLUMBERG D.C. BAR # 463247
Assistant United States Attorney
Judiciary Center Bldg.
555 Fourth Street, N.W., Tenth Fl.
Washington, D.C. 20530
(202) 514-7157
Attorneys for Defendant
OF COUNSEL:
Courtney B. Wheeler
Law Department
United States Postal Service
475 L’Enfant Plaza, SW
Washington, DC
Date: October 15, 2003
1-The plaintiff incorrectly refers the Accounting Service Centers as "Administrative Assistance Centers" in its Petition to Compel Arbitration.
2-Under the PRA, an interest arbitration panel determines the new CBA where the parties’ contract negotiations have been unsuccessful.
3-The parties have another disagreement as to the scope of the MOU. The APWU contends that the MOU also applies to the IT/ASC and Operating Services Agreements. The Postal Service rejects this contention. The IT/ASC and Operating Services Agreements were negotiated and ratified separately from the National Agreement and do not contain any reference to the MOU. This disagreement, however, is subordinate to the plaintiff’s demand for arbitration of a statutory issue that clearly raises the question of substantive arbitrability.
4-The Norris-LaGardia Act, 29 U.S. §§ 101-115, prohibits injunctive relief in labor cases. In Boys Markets, Inc. v. Retail Clerks Local 770, 398 U.S. 235 (1970), a narrow exception was carved out to permit injunctive relief in the aid of arbitration. The Supreme Court further narrowed the exception in Buffalo Forge Co. v. United Steelworkers of America, 428 U.S. 397 (1976). The Boys Market exception permitting very limited injunctive relief in a labor dispute is a rare commodity that is "seldom had." Independent Oil & Chemical Workers v. Proctor & Gamble, 864 F.2d 927, 929 (1st Cir. 1988). It is "quite appropriately, a rarity" and must be "tightly confined" in view of national labor law policy encouraging private resolution of disputes. Independent Oil & Chemical Workers, 864 F.2d at 929. The Boys Market exception applies only if the arbitral process is threatened. Amalgamated Transit Union v. Greyhound Lines, Inc., 550 F.2d 1237, 1238-39 (9th Cir.) cert.denied, 434 U.S. 837 (1977). See also Local Lodge No. 1266 v. Panoramic Corp., 668 F.2d 276, 285-86 (7th Cir. 1981). Injunctive relief must be "necessary to protect the arbitral process itself." Columbia Local, APWU v. Bolger, 621 F.2d 615, 617 (4th Cir. 1980).
5-"The Postal Service and the APWU do not, as part of their collective bargaining negotiation process, negotiate over retirement benefit levels, eligibility or any other aspect of the substantive details of the pension (retirement) program." Exhibit A (Dec. D. T., para 9).
6-Section 1103(a) states: "The following functions are vested in the Director of the Office of Personnel Management , and shall be performed by the Director, or subject to section 1104 of this title, by such employees of the Office as the Director designates: . . .(5) executing, administering, and enforcing . . .(B) the other activities of the Office including retirement and classification activities."
7-"The Office of Personnel Management (OPM) administers the CSRS. The CSRS laws, policies, and regulations issued by OPM including those governing employee eligibility and benefits, are controlling in the event of a conflict with the information contained in this chapter." ELM 560 et seq. is a restatement of CSRS provisions and OPM guidance. ELM 561 refers employees to the Office of Personnel Management’s CSRS/FERS Handbook for additional information.
8-"The Office of Personnel Management (OPM) administers the basic portion of FERS.The FERS laws, policies, and regulations issued by OPM including those governing employee eligibility and benefits, are controlling in the event of a conflict with the information contained in this chapter." ELM 560 et seq. is a restatement of FERS provisions and OPM guidance. ELM 581 refers employees to the Office of Personnel CSRS/FERS Handbook for additional information.
9-OPM also explained that it was the Postal Service’s decision as to which positions were excess to the agency’s needs. The APWU has not challenged the Postal Service’s decision as to which positions were declared excess. Instead, the Union has grieved the restriction imposed by statute and OPM that limits an agency’s offers of VER to employees in positions that are excess to the agency’s needs.
10-The CBA provides for two levels of arbitration that are distinct from each other. National level arbitrations deal exclusively with "interpretive issues arising under [the National Agreement]." (Article 15.5.D of the National Agreement). District level arbitrations deal with other disputes arising between the parties.
11-The plaintiff alleges that the employer has established a single retirement window which closes on October 27, 2003. This statement is misleading. The VER process is a rolling process. Because neither the Union nor the Postal Service know how many of the employees that expressed an interest will actually apply for VER, and because the Postal Service cannot offer VER to more than 17, 500 employees, the Postal Service will have more than a single retirement window so that it can manage the process and comply with its authorization letter
