When a non-ODL carrier is forced to work overtime off their assignment when there are ODL carriers available to do that work same, there is a violation of Article 8.

One lesson for first year law students is “no right without a remedy” – meaning that a right protects you only insofar as you have a remedy for its violation. This principle is old enough to have a Latin version: Ubi jus ibi remedium.

In this case, the listed carriers expressed a preference as to whether or not they desired to work overtime. Article 8.5.A, of the National Agreement, clearly states that employees wishing to work overtime must place their name on the overtime list;

A. Employees desiring to work overtime shall place their names on either the “Overtime Desired” list or the “Work Assignment” list during the two weeks prior to the start of the calendar quarter, and their names shall remain on the list until such time as they remove their names from the list. Employees may switch from one list to the other during the two weeks prior to the start of the calendar quarter, and the change will be effective beginning that new calendar quarter.

One of the principle rules in contract interpretation is; to include one is the exclude the other. In this case, if an employee DOES NOT place their name on the “overtime desired” (ODL) list or the “work assignment” list they are expressing their preference NOT to work overtime.

If the employee has expressed this preference, then who should work the overtime and what provisions govern this obligation? Actually, several documents govern the assignment of overtime to employees who are available to work instead of employees who do not wish to work overtime. The Memorandum of Understanding, dated December 20, 1988 (JCAM 8-26 and 8-27) for example;

This Memorandum of Understanding represents the party’s consensus on clarification of interpretation and issues pending national arbitration regarding letter carrier overtime as set forth herein… This Memorandum is designed to eliminate these misunderstandings.

1. If a carrier is not on the Overtime Desired List (ODL) or has not signed up for Work Assignment overtime, management must not assign overtime to that carrier without first fulfilling the obligation outlined in the “letter carrier paragraph” of the Article 8 Memorandum. The Article 8 Memorandum provides that “. . . where management determines that overtime or auxiliary assistance is needed on an employee’s route on

Argument for remedy for non-ODL carriers forced to work overtime off their assignment (If you want a copy of this in an electronic format so you can cut ‘n paste, contact the NBA’s office). This argument should be included in the UNION’S full, detailed statement of disputed facts and contentions—Item 17 on PS Form 8190—are part of every grievance which includes a requested remedy for the Non-ODL members forced to work.

one of the employee’s regularly scheduled days and the employee is not on the overtime desired list, the employer will seek to utilize auxiliary assistance, when available, rather than requiring the employee to work mandatory overtime.” Such assistance includes utilizing someone from the ODL when someone from the ODL is available. [Emphasis added]

Additionally, the Memorandum of Understanding between the United Stated Postal Service and the Joint Bargaining Committee, Re: Article 8 contains the Letter Carrier Paragraph which states in relevant part;

In the Letter Carrier Craft, where management determines that overtime or auxiliary assistance is needed on an employee’s route on one of the employee’s regularly scheduled days and the employee is not on the overtime desired list, the employer will seek to utilize auxiliary assistance, when available, rather than requiring the employee to work mandatory overtime. (Emphasis added)

To more clearly define who should work the overtime, when the employee has not placed their name on the ODL, we need only refer to the JCAM language on page 8-15 which says in relevant part;

Implementing Memorandum on “Letter Carrier Paragraph.” A memorandum of understanding signed December 20, 1988 (M-00884) further explained the requirement to seek to use auxiliary assistance before requiring letter carriers not on the ODL or work assignment list to work overtime on their own route on a regularly scheduled day. Management must seek to use all of the following to provide auxiliary assistance:• casuals • part-time flexibles at the straight-time or regular overtime rate • transitional employees at the straight-time or regular overtime rate • available full-time regular employees such as unassigned or reserve regulars at the straight time rate • full-time carriers from the overtime desired list at the regular overtime rate

If the party’s agree there were available employees who could have worked the overtime and the non-ODL employee was forced to work then what must be addressed is the appropriate remedy due the employee.

The Agency often attempts to argue the non-ODL employee who was forced to work is due no remedy because they were “already compensated” when they were paid for the work preformed. This is a flawed argument for the following reasons. First, the compensation paid at the overtime rate is applicable to every bargaining unit employee regardless of their status on or off the ODL when they work overtime. The National Agreement states;

Section 4. Overtime Work A. Overtime pay is to be paid at the rate of one and one-half (11/2)

times the base hourly straight time rate.B. Overtime shall be paid to employees for work performed only after eight (8) hours on duty in any one service day or forty (40) hours in any one service week. Nothing in this Section shall be construed by the party’s or any reviewing authority to deny the payment of overtime to employees for time worked outside of their regularly scheduled work week at the request of the Employer.

The JCAM elaborates on this contractual language by defining both Postal Overtime and FLSA Overtime and its application;

Postal Overtime. All bargaining-unit employees are paid postal overtime for time spent in a pay status in excess of 8 hours in a service day and/or in excess of 40 hours in a service week. Hours “in pay status” include hours of actual work and hours of paid leave.

Postal Overtime Pay Rate. The contractual overtime rate of pay is one and one-half times the base straight-time rate. The overtime rate for part time flexible employees is the same as the overtime rate for full-time regular employees in the same step and grade. This rate is slightly less than one-and one-half times the part-time flexible base straight-time hourly rate. This is a consequence of part-time flexible employees receiving a slightly higher regular straight time hourly rate than full-time regulars in order to compensate them for not receiving paid holidays (see Article 11.7).

FLSA Overtime. Totally independent of the contract are those provisions of the federal Fair Labor Standards Act governing overtime for all bargaining-unit employees who actually work more than 40 hours during the employee’s FLSA work week. The FLSA overtime rate is one and- one-half times the employee’s “regular rate” of pay for all hours of actual work in excess of 40 hours in the FLSA work week.

The “regular rate” of pay is computed by adding the employee’s total compensation (including night differential, Sunday premium, territorial COLA and higher-level pay, and excluding pay for leave hours, contract overtime pay, out-of-schedule premium pay and penalty overtime pay)for all hours actually worked (excluding paid leave hours but including steward’s duty time and time off authorized under the 7.01 rule) during the FLSA work week and then dividing the dollar total by the number of hours the employee actually worked during the FLSA work week. Detailed FLSA overtime regulations can be found in Section 444.21 of the Employee and Labor Relations Manual.

Because certain pay premiums are included in the calculation of the FLSA overtime rate, an employee may receive a higher rate of pay for FLSA overtime than for postal overtime.

Second, to claim the contractual payment of overtime is appropriate compensation for the harm would be akin to saying, “you clocked in today, you already were compensated.” All bargaining unit employees “clock in” to be in a pay status, and all employees who work more than 8 hours in a day or 40 in a week are paid Overtime. This is the Agency’s obligation as agreed to in the National Agreement but further, it is the Agency’s Legal Obligation under the Fair Labor Standards Act (FLSA). Receipt of Overtime payment for time spent on the clock is a guaranteed right of the employee under law. Failure, by the Agency, to abide by this right is remedied by making the employee whole and paying the employee at the overtime rate.

For the Agency to argue, in the case of a non-ODL forced to work, that the employee has already been compensated and not due remedy is to apply the wrong right. The right to be compensated for overtime work is codified in the Law--we applaud the Agency for complying with the National Agreement and applicable law by paying the overtime rate when overtime is worked. The appropriate right, in this case, is the right to NOT WORK OVERTIME if there are others available to work the Overtime instead. Therefore, what is the Remedy?

What the aggrieved employee was denied is time. The right denied was time away from the workplace after working an eight hour day. Time ticks on regardless of circumstances and cannot be recovered. A truly appropriate remedy would be to give that lost time back but that is impossible, however, a remedy is still due the aggrieved employee. What are the appropriate options for remedy?

A remedial recourse would be to grant the employee Compensatory Leave equal to the time the non-ODL employee was forced to work Overtime (i.e. one hours of Compensatory Leave to compensate for one hour of mandatory Overtime worked). This remedy is the closest appropriate remedy since it gives time away from the workplace back to the employee. Another remedial recourse would be to provide the aggrieved employee with monetary compensation beyond the legal obligation to pay Overtime for work done. A non-punitive amount would be compensation at one-half the straight time rate for all time the non-ODL employee was forced to work (i.e. One half the straight time rate for every hour of mandatory Overtime worked) but this is not the most accurate or appropriate remedy since it does not provide “time” to the aggrieved employee.

This is not a new argument for appropriate remedy, nor is it unknown. There is ample arbitrational precedent for awarding compensatory leave or an additional 50% premium or both for the Non-ODL forced to work. These decisions are from a wide range of arbitrators, from conservative to less so, and from all over the country. The union would submit the following arbitrational findings in support of the union’s position:

S4N3DC9474 Stephens Mobile, Al 1986H90N4HC93054055 Lurie Birmingham, AL 1994E06N4EC12181263 Motchan Omaha, NE 2012E06N4EC12163479 Motchan Salina, KS 2012G06N4GC11052079 Dorshaw Tulsa, OK 2012

B06N4BC12060309 Cenci Allingtown, CT 2012G06N4GC11027929 Halter Tulsa, OK 2011G06N4GC11027927 August Tulsa, OK 2011B01N4BC05187029 Campagna Buffalo, NY 2006A01N4AC06076635 Thomas Wantagh, NY 2006B01N4BC06082735 Simmelkjaer Waterford, CT 2007B01N4BC05090671 LaLonde Hamburg, NY 2005H98N4HC00170427 Harris Bessemer, AL 2003B94N4BC99130675(etal)Shea Framingham, MA 1999

Conservative Arbitrator Stephens’ finding (S4N3DC9474), he clearly articulates the arbitrator’s right to craft a remedy which make the grievant(s) whole awarding compensatory leave. In relevant part, Stephens opines;

This arbitrator believes that the employer violated the contract when it required the grievant to work when other employees who were on the overtime desired list were available to work. The only question is that of the appropriate remedy. In case No. W8N-5H-11311, a similar case where the grievant did not want to work, Arbitrator Levak held that the grievant could choose a day to be off and be given administrative leave for that day. It would appear that the appropriate remedy would be to allow the grievant have a day off, or require the employer to pay him for a day.

Arbitrator Motchan addressed the issue of compensation for Non-ODL employees in a decisions from Omaha NE (E06N4EC12181263):

The Service has argued that these carriers were due no additional compensation because there should have been no expectation that they would not have to work overtime on the day in question. The more appropriate expectation of the carriers would have been that management would have appropriately the collective bargaining agreement and offered the overtime work to the ODL carriers. If this had happened, the non-ODL carriers would have had their personal time and not been required to work overtime.

Regardless of which remedy is provided the Agency’s argument the aggrieved have been compensated already, must be rejected out of hand since it does not accurately address the right which has been denied. The National Agreement has provided the aggrieved with a right which has been denied and remedy is due.