August 18, 2010
NALC Contract DVD

The NALC Contract DVD was produced to provide you with the latest and most complete set of resources available. It contains electronic versions of; the National Agreement, JCAM, Materials Reference System (MRS), NALC publications (e.g. Postal Record, Contract Talk, Activist, etc.), the new and revised Defenses to Discipline, the latest versions of USPS Handbooks and Manuals, and other valuable resources. This compilation of resources in a single DVD is an essential tool for every branch activist. The NALC Contract DVD is available through the NALC Supply Department for $2.

June 10, 2010
Convention time limit waiver granted
Because of the NALC’s Biennial Convention in Anaheim, California, August 9-13, the Postal Service has granted the NALC’s request that the parties at the local, regional and national levels be granted a waiver of time limits for all grievances during the month of August, 2010. (M-01735)

June 2, 2010
Article 19 appeal settled
The NALC and the Postal Service have settled a long-standing Article 19 appeal involving modifications made in April 2000 to the Postal Service's leave regulations set forth in Section 510 of the Employee and Labor Relations Manual (ELM). The settlement makes clear that the changes to Section 510 introduced in ELM issue 15 do not change leave accrual or crediting, and do not alter FMLA certification procedures or Postal Service paid leave policies. (M-01734)

May 3, 2010
National interpretive dispute filed
On May 3, 2010, the National Association of Letter Carriers declared that a regular panel arbitration case raised interpretive issues and appealed the matter to the national level pursuant to Article 15, Section 2 of the National Agreement.

The underlying arbitration case involves NALC’s contention that the Postal Service denied the grievant limited duty in violation of ELM 546. In its post-hearing brief, management argued for the first time that the Federal Employees Compensation Act (FECA) barred the arbitrator from awarding a monetary remedy. Management contends that the OWCP has exclusive jurisdiction over the grievant’s claim.

NALC’s appeal to the interpretive step raises three issues:

1. whether a party in a regular panel arbitration can raise a new argument under the guise of “arbitrability” which was never advanced in the grievance papers or at the hearing;
2. what procedures may be involved when one of the parties believes that the opposing party has raised a new argument for the first time in a post-hearing brief; and
3. the validity of management’s argument that the FECA bars an arbitrator from granting a monetary remedy. NALC’s position is that there is no contractual basis for the USPS argument and that it is wrong as a matter of law.

Branches and NBA offices are advised that any pending grievances involving the same issues as described above should be held in abeyance pending resolution of the national interpretive dispute.

Updated February 23, 2010
"Window of operations"
In an ongoing effort to provide tools to combat contract violations, CAU has scanned and posted regional arbitration decisions which support the union position concerning Article 8 violations and Window of Operation (WOO). The Postal Service often argues it has a right to establish a predetermined time when carriers should be off the street. Consequently, the Postal Service argues it has no option but to work carriers who are not on the OTDL to meet their WOO obligation. These regional cases will provide significant insights into arguments the union has advanced which have been successful. The two national level decisions are relevant to the regional cases because they also provide significant insights into arguments the union can advance.

You should also study NALC's White Paper on overtime, staffing, and simultaneous scheduling. Click here to read or download the document (M-01548).

This CAU White Paper explains how NALC representatives can challenge the Postal Service's widespread failure to staff facilities sufficiently, a failure that has led to numerous violations of the contractual overtime rules. Management in many places has consistently worked letter carriers beyond the contractual maximums of 12 hours per day and 60 hours per week. In addition, in many facilities the Postal Service has engaged in the “simultaneous scheduling” of overtime for ODL and non-ODL letter carriers.

The White Paper will help NALC representatives to prepare challenges to both types of overtime violations, and seek remedies requiring the Postal Service to comply with the contract by staffing its facilities with sufficient letter carriers. The paper reviews the negotiating history of the Article 8 overtime provisions, showing how a course of bargaining over more than three decades has produced a contract that bans the abuse of employees through excessive overtime. The white paper also shows the fallacy of the Postal Service “operational window” defense, which it has often offered as justification for its pattern of overtime violations.

You should consider using the national and regional decisions listed below alongside NALC's White Paper when preparing your WOO grievance file.

After reviewing the linked “C” number decisions, contact your NBA for additional guidance in preparing your grievance file.

November 19, 2009
National level award rules on casuals
In a national level award, issued November 11, 2009, Arbitrator Shyam Das has rejected NALC’s position that Article 12, Section 5.C. 5. a (2) requires the Postal Service to separate casuals in all crafts before reassigning excess regular employees out of the installation.  Instead, Das upheld the Postal Service’s argument that this provision only requires separation of casuals in the affected craft, i.e., the craft from which regular employees are to be reassigned. 

NALC had argued that the plain language of Article 12.5.C.5.a (2), coupled with the fundamental purpose of Article 12 to minimize inconvenience to regular employees, required the Postal Service to separate a casual in, for example, the clerk craft if doing so would create a position for a letter carrier who would otherwise be reassigned out of the installation.  APWU and the Mail Handlers both intervened in the case in support of NALC’s position.

Arbitrator Das acknowledged that the case posed “a difficult interpretive issue” and that there was contractual language and other evidence that supported the Unions’ position.  However, he concluded that management’s argument was “more compelling.” The Arbitrator relied on numerous factors, including the context of the disputed language, the explicit reference in Article 12.4.D to separation of casuals “working in the affected craft,” and the absence of any evidence that Article 12.5.C.5.a (2) had been, or could be, applied across craft lines. 

October 23, 2009
VER Dispute Appealed to National Arbitration
On October 23, 2009, the National Association of Letter Carriers appealed to National Arbitration the unresolved dispute involving aspects of the 2009 Voluntary Early Retirement (VER) made available to letter carriers.

Specifically, the Postal Service established an Irrevocable Date (June 19, 2009) for eligible employees to decide whether to accept the VER, but has failed to provide mandatory retirement counseling to those who have requested it prior to the irrevocable date. Such counseling is essential for employees to make a fully informed decision whether or not to accept the VER.

Letter carriers who have applied for the VER, requested retirement counseling and were not provided with retirement counseling prior to the irrevocable date should contact their National Business Agent for more information. This would include letter carriers who withdrew their application for the VER because retirement counseling was not provided prior to the irrevocable date.

October 23, 2009
National Interpretive Dispute Filed
Article 12, Excess Employees Reassigned to the Letter Carrier Craft
On October 1, 2009, the National Association of Letter Carriers filed a National Level Interpretive Dispute with the Postal Service pursuant to Article 15, Section 3.F of the National Agreement. This dispute involves excess employees reassigned to the Letter Carrier craft.

Specifically, NALC is challenging the Postal Service’s practice of reassigning excess clerk craft employees into vacant withheld positions in the Letter Carrier craft without first establishing that the employee is qualified for the letter carrier assignment in question. Following reassignment some of these employees are failing to successfully complete various driving examinations and are separated from postal employment. The union believes this practice is inconsistent with provisions of Article 12.

Branches should contact their National Business Agent if such an event occurs in order to pursue filing an appropriate grievance.

October 9, 2009
New Material Reference System (MRS) available online
The NALC is proud to announce a new updated MRS as a prime resource for National Business Agents, Regional Administrative Assistants, NALC Branch Officers and Shop Stewards in their duties of enforcing the collective bargaining agreement. The new version can be found here.

September 15, 2009
Retirement counseling settlement allows counseling on the clock
NALC and the Postal Service have reached a settlement of a national level dispute over management’s responsibility to provide retirement counseling to letter carriers.  NALC had protested the discontinuance of the practice of providing in-person counseling to letter carriers on postal premises.  Instead, the Postal Service amended the Employee and Labor Relations Manual to provide that counseling would be conducted primarily by telephone with a retirement specialist at the Human Resources Shared Services Center (HRSSC).

The settlement provides that employee’s may request counseling on the clock, and that the local management will arrange reasonably private space for this purpose.  The employee’s spouse and/or advisor may be with the employee during this process.  In addition, employees who cannot begin or complete the process of obtaining counseling from HRSSC without assistance will be offered assistance by local management. 

This settlement does not affect the national level dispute over management’s failure to provide timely retirement counseling to employees eligible for Voluntary Early Retirement.  That dispute remains pending. M-01708.pdf

June 23, 2009
NRP settlement clears path for hundreds of held grievances
The NALC and Postal Service have settled a national level grievance filed on the Postal Service’s application of their National Reassessment Process (NRP). NRP is a management program that was devised to reassess all current limited duty job offers and to reassess how future limited duty job offers are made. The NALC, from the outset, has maintained that NRP cannot compromise injured employees’ rights under 546 of the ELM.

As a result of many months of negotiations, the party’s three-part settlement addresses all of the NALC’s contentions in this grievance and solidifies the contractual rights of affected letter carriers. The parties agreed that NRP does not change management’s obligations to provide limited duty to injured employees and it does not change the provisions of ELM 546. The parties also agreed that NRP does not create new criteria for assigning limited duty and that light duty carriers will not normally be displaced solely to make new limited duty or rehabilitation assignments unless required by law.

The settlement will allow for the continued processing of grievances that have been held in abeyance pending the outcome of this national case. For more information contact your NBA.

The NALC will continue to monitor NRP and will continue to require contractual compliance as management moves forward with this process.

Click here for the full text of the settlement (M-01706) and click here for additional information (M-01707).

NALC Guide to National Reassessment Process (NRP)
NALC has published a guide to help injured workers and their representatives challenge the Postal Service's withdrawal or failure to provide limited duty. The Guide to NRP (National Reassessment Process) can be viewed and saved here at the link above or on the NALC's Compensation Department web page at http://nalc.org/depart/owcp/index.html.

June 19, 2009
Changes to FMLA regulations
Last November the Department of Labor (DOL) published its Final Rule to implement the first-ever amendments to the Family Medical Leave Act (FMLA). The amendments come from the National Defense Authorization Act (NDAA) of 2008 and provide new military family leave entitlements. The Final Rule also substantially revised many other parts of the implementing regulations of the FMLA for the first time since 1995. The Final Rule became effective on January 16, 2009 just four days before President Bush left office. While the new regulations provide important new entitlements to protected leave for letter carriers who have family members who serve in the Armed Forces, they also impose new burdens on employees who need leave for the already existing reasons for FMLA leave: birth, adoption, foster care placement and serious health conditions.

While the Final Rule does not reduce eligible workers’ entitlement to FMLA leave, the new regulations have imposed additional burdens on employees that make it harder for them to use the leave. For example, the Final Rule has clarified the definition of “serious health condition” in cases involving continuing treatment. Prior to the change, a serious health condition could involve incapacity of more than three consecutive calendar days plus “two visits to a health care provider” or one visit which resulted in a regimen of continuing treatment under the health care provider’s supervision. The new rule changes that requirement to more than three full consecutive calendardays. Partial days no longer count. Also under the new rules, the two visits must now occur within 30 days of the beginning of the incapacity and the first visit must take place within seven days of the first day of incapacity. Notably, the health care provider – not the employee – must determine if the second visit within the 30 days is required. Under the previous rules there was neither a 30 day nor a 7 day requirement. Finally, the Final Rule has defined “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year. There was no two visit requirement prior to the change.

In addition to the above, under the previous regulations an employee did not have to assert his or her rights under the FMLA or even mention it by name when seeking leave for a FMLA-qualifying reason. Under the Final Rule, this applies only to when an employee seeks leave for the first time for the FMLA qualifying reason. Once FMLA leave has been granted for an employee’s health condition, the employee, in making future requests for leave, must specifically reference either the qualifying reason or the need for FMLA leave. For further information on the changes to FMLA see the Contract Talk article in the April 2009 Postal Record.

The NALC is currently updating The NALC Guide to the Family and Medical Leave Act and NALC FMLA forms to reflect the new regulations as well as developing new forms for the two categories of military family leave. Until the new NALC forms are published, letter carriers applying for FMLA by using the current NALC forms who are told by their local managers that certain NALC forms do not meet the requirements of the new law should request that local management advise them as to what required information is missing. If you are not sure local management has a right to that information please contact your National Business Agent for assistance.

Because we have a new administration in the White House and there is now pending legislation which would restore some of the rights that have been taken away or otherwise changed in some way, instead of rewriting language that may change again very soon, the parties have removed all reference to FMLA from the JCAM recently posted on line. Once the dust settles, a supplement to the JCAM including language concerning the current FMLA regulations will be provided.

FMLA page

Updated September 2, 2009
National arbitration decision
National Arbitrator Shyam Das, in an Award issued March 20, 2009, has sustained NALC's challenge to certain changes to ELM Section 546 proposed by the Postal Service in March 2007. The disputed changes, which were the result of a negotiated agreement between USPS and APWU, would have provided, for the first time, that all cross-craft transfers of injured workers must be accomplished through Article 13 of the National Agreement. The principal consequence of this change would have been that the so-called reciprocity provisions of Article 13, Section 5 would apply to reassignments initiated by management under ELM Section 546. Thus, for example, if an injured letter carrier were permanently transferred to the clerk craft the resulting vacancy in the letter carrier craft would be posted for bid in the clerk craft. Citing a 1985 ruling by Arbitrator Mittenthal, Das upheld NALC's position that the proposed change was inconsistent and in conflict with Articles 13 and 41. He ordered the Postal Service to rescind the proposed ELM changes.

C-28121

Arbitration DVDs
CAU Updates Key Contract Enforcement Resources
NALC has published 2010 updates to one of its core contract enforcement publications. The Arbitration DVDs are available for order from the Supply Department.

More info