Favorable Decision from Administrative Law Judge of the NLRB

APWU Leadership Northeast Region;

Please see attached documents below the post. This is a very favorable NLRB decision.

On May 19, 2017, Administrative Law Judge (ALJ) Andrew S. Gollin of the National Labor Relations Board found multiple Postal Service policies that restrict the ability of its employees to record, photograph; use copyrighted or trademark materials, or speak to the media to be in violation of employees’ legal right to work together for better wages, hours, and working conditions.

The ALJ determined that the following regulations were overly broad and violated the National Labor Relations Act:

1. Employee and Labor Relations Manual Section 667.2, which restricts the use of recording devices on postal property without the permission of management;

2. Administrative Support Handbook 805 Section 5-5(s), which prohibits the use of cameras, cell phones with cameras, and other personal imaging devices in all Postal Service areas without management permission;

3. Administrative Support Manual Section 663.4, which requires that any employee who wishes to use Postal Service trademarks or copyrighted materials must seek permission

The ALJ determined that the first two provisions overly restricted an employee’s right to use photography and recording devices to document unsafe conditions and demonstrate unfair treatment by management.

The third regulation was viewed as potentially restricting postal unions from using USPS trademarks and copyrighted materials as part of picketing or other collective activities. .

The ALJ ordered the Postal Service to rescind all of the provisions at issue.

The APWU, NALC, and NPMHU put on a united front and participated in the hearing in support of the Board’s contentions that these provisions violated the law. APWU Director of Industrial Relations Vance Zimmerman participated as a witness at the hearings. He delivered testimony as to why Postal Workers may need to use photography or recording devices to protect themselves, their coworkers, and why the Postal Service’s restrictions were unjustified.

The ALJ’s decision now must be approved by the National Labor Relations Board. The Postal Service may appeal the ALJ’s decision and ask the Board to overturn it in part or completely. Until the Board has issued a final decision, the handbook and manual provisions at issue should be treated as still in effect.

John H. Dirzius

Coordinator, Northeast Region
American Postal Workers Union

Sales Retention Team National Award

On December 9, 2016, National Director of Industrial Relations, Vance Zimmerman issued a memo explaining the details of the of the Sales Retention Team National Award. Below is the memo, verbatim. But before that, here’s what Mike Gallagher had to say:

“Sisters and Brothers, please see the BIG WIN for the Clerk Craft Division below and attached on the ruling by Arbitrator Goldberg that the USPS violated Article 1.5 and Article 37.3.A.1 when they assigned clerk craft work to injured employees who were on the rolls of OWCP the work of Sales Retention Team at call centers.  The Arbitrator ordered the work returned to the Clerk Craft and to post the duty assignments at call centers for bid and remanded the monetary remedy to the parties for further discussion.  Congratulation to all, especially the Clerk Craft Division.”  Mike

National Arbitrator Issues Landmark Decision Upholding Craft Assignment And Job Posting Rights

Arbitrator Stephen B. Goldberg issued a decision on December 8, 2016, holding that the Postal Service violated Articles 1 and 37 of the National Agreement and an MOU on Job Assignments when it failed to assign Sales Retention Team call center work to the Clerk Craft and post the duty assignments at call centers for bid.  The Arbitrator rejected Postal Service arguments that its actions were justified by the fact that the call center work began as a pilot program and that the Postal Service was seeking to comply with its obligations under the federal workers compensation statutes.

The dispute began in October 2012 when the Postal Service announced that it had created call centers, which it eventually called Sales Retention Team (SRT) centers, where it reassigned employees from the workers compensation rolls to make scripted outgoing sales calls to current and former Postal Service customers.  The purpose of the calls is to increase postal revenue by helping the Postal Service retain or recover the business of small and middle-sized postal customers.  The Postal Service also sought to save workers compensation costs by reassigning employees from the workers compensation rolls to perform the call center work.

The Arbitrator found that “[w]hat the Postal Service has done by developing the SRT concept is to pull out from the EAS Sales Department positions most, if not all, of the sales retention and lead generation telephone calls … It has created a new position which consists solely of making such calls.”

The APWU challenged the failure of the Postal Service to assign the SRT work to the clerk craft under Article 1.5 and to post the jobs in the SRT centers for bid by clerks under Article 37.3.A.1.  The Union pointed out that the SRT call center work is indistinguishable from the work done by clerks in Customer Call Centers, and is unquestionably clerk work.  The Arbitrator agreed and rejected the Postal Service’s attempt to distinguish the SRT work from Call Center work, finding  that “[a]part from the fact that clerks in call centers answer customer calls, while SRT employees initiate customer calls, they do essentially the same work – talking on the telephone to customers and inputting data on computers. Additionally, they work in similar environments – clerks work in call centers, SRT employees work in a ‘call center environment’.”  Thus, the Arbitrator held that the Postal Service had violated Article 1.5 of the National Agreement by failing to assign the work to the Clerk Craft.  He also found a violation of Article 37.3.A.1 and of an MOU agreed to by the parties in 2010.

Violations of Article 37.3.A.1 and the MOU on New Positions and New Work
The Arbitrator held that “[t]he The Postal Service not only failed to assign SRT positions to the clerk craft, it also failed to post those positions for bidding by clerk craft employees. Hence, the Postal Service violated not only Article 1.5 of the Agreement, but also Article 37.3.A.1, which provides that ’All newly established Clerk Craft duty assignments shall be posted to craft employees eligible to bid within 28 days.’ Additionally, the Postal Service violated the last sentence of Article 1.5 and the MOU on New Positions and New Work by failing to consult by  assigning the SRT positions to OWCP employees.”

Violation of MOU Governing the Assignment of Employees from the Workers Compensation Rolls
The Arbitrator rejected the Postal Service’s attempt to justify its reassignment of employees from the workers compensation rolls into Clerk Craft jobs by arguing that its actions were justified by its obligation to comply with the reemployment and reassignment provisions of federal workers compensation law.  The Arbitrator found that the APWU and the Postal Service had agreed to a Memorandum as part of the 2010 National Agreement that prevented such reassignments.  That MOU concerns the “Temporary Assignment, Reassignment or Reemployment in APWU Represented Crafts of Employees injured On the Job.” In holding that the Postal Service violated that MOU by reassigning employees from the workers compensation rolls to the SRT jobs, the Arbitrator held that the parties’ MOU had overturned decisions by Arbitrators Das and Mittenthal which had permitted the Postal Service to reassign employees on the workers compensation rolls to perform clerk work.

USPS abandoned its “Pilot Program” defense
Before the hearing in this case, the Postal Service had contended that its violations of Article 1.5 and 37.3.A.1 could be justified by the fact that this program was begun as a pilot program.  The APWU urged the Arbitrator to rule that pilot programs cannot ever create an exception to the work assignment and job posting provisions of the National Agreement.  However, in its brief, the Postal Service abandoned its “pilot program” defense, apparently because the so-called “pilot program” had been expanded and continued for more than four years.  Therefore, although the Arbitrator did not accept the Postal Service’s pilot program defense in this case he did not reach or decide the question whether operating a pilot program could ever justify non-compliance with Articles 1.5 and 37.3.A.1 of the National Agreement.

Issue of Appropriate Monetary Remedy  Remanded to the Parties
As remedies for the violations in this case, the Arbitrator granted the APWU’s request that he order that the Postal Service:

·        Cease and desist from the violations of the National Agreement found in this    case;

·        Assign SRT work to Clerk craft employees; and

·         Post SRT work assignments for bid by clerks without delay.

The APWU also requested backpay with interest from October 2012.  The Arbitrator has reserved judgment on the calculation of the amount of the appropriate  monetary remedy and has remanded the question of the amount of the monetary remedy to the parties for a period of 60 days. The Arbitrator stated that he is “unwilling to determine an appropriate financial remedy for this violation without first providing the parties with the opportunity to discuss and perhaps resolve that question.” After 60 days, either party may ask the Arbitrator to decide the issue of a monetary remedy.

Vance Zimmerman
Director Industrial Relations

Since we are still moving things over, the entire case has not been loaded up on here at this time. A notice will be posted when the case is uploaded.