GUIDE TO LOCAL NEGOTIATIONSapwuiowa.com/Local Negotiations CBR 2007.pdfJanuary/February 2007 Page 5 1) Review your current LMOU, item by item. 2) Gather any necessary information

American Postal Workers Union, AFL-CIO

COLLECTIVE BARGAINING REPORT SPECIAL ISSUE

William Burrus, President

Greg Bell, DirectorIndustrial Relations

Issue 07-01 January/February 2007

GUIDE TOLOCAL NEGOTIATIONS

Page 2 January/February 2007

TABLE OF CONTENTS LOCAL NEGOTIATIONSCALENDAR

Preparation for Negotiations: Now

Information Demands: Now

Written Notice ofIntent to Negotiate: Prior to April 16, 2007

Negotiations Occur for 30Consecutive Days commencing: April 2, 2007

and ending: May 31, 2007

Initial Proposals Must BeExchanged: Within the first 21

days of the 30-Consecutive-DayImplementation Period

All Negotiations End: May 31, 2007

Appeal Impasse toGrievance/Arbitration

Processing Center: No later thanJune 15, 2007

APWU Region/USPS AreaImpasse Discussions End: August 14, 2007 -

75 days afterexpiration of 60day time frame forLocal negotiations(May 31, 2007)

Appeal to Arbitration: No later than 21days from end of75 day period(September 4, 2007)

I. Introduction ............................................................... 3Important Facts aboutLocal Negotiations ................................................ 3

II. Preparing for LMOU Negotiations ........................ 5

• Review Your Current LMOU ................................ 5• Gather Necessary Information ........................... 5• Provide Written Notification

To Open Negotiations .......................................... 7• Sample Notice of Intent of Negotiate ................ 7• Carrying Forward Current LMOU ....................... 7• Subjects for Negotiation ...................................... 8• Writing Proposals ................................................. 9• Clarity of Proposals ............................................ 11• Record Keeping ................................................. 12• Setting Ground Rules ....................................... 13

III. Management’s Right to Impasse ....................... 16

IV. “In Conflict” Challenges ....................................... 25

V. Impasses ................................................................ 28

• Impasse Evaluation ........................................... 28• Impasse Instructions ......................................... 31• Appeal Form ....................................................... 33

VI.Article 30 Negotiation Items ............................... 34

• Item 1 Wash-Up .............................................. 34• Item 2 Basic Work Week ............................... 40• Item 3 Emergency Curtailment ..................... 42• Item 4 Leave Program ................................... 47• Item 5 Choice Vacation Period(s) ................ 49• Item 6 Vacation Start Day ............................. 51• Item 7 Splitting Vacation Choice .................. 52• Item 8 Convention Time

and Jury Duty ...................................... 53• Item 9 Number Permitted Vacation ............. 54• Item 10 Vacation Notices ................................. 60• Item 11 Leave Year Notice .............................. 61• Item 12 Non-Choice Vacation ......................... 61• Item 13 Holiday Scheduling ............................ 67• Item 14 Overtime Desired List ........................ 71• Item 15 Light Duty-Number of

Assignments ........................................ 77• Item 16 Light Duty-Reserving

Assignments ........................................ 77• Item 17 Light Duty-Identifying

Assignments ........................................ 77• Item 18 Sections for Reassignment .............. 80• Item 19 Parking Spaces ................................... 81• Item 20 Union Leave ........................................ 83• Item 21 Craft Items ........................................... 84• Item 22 Seniority, Reassignment,

Posting ................................................. 84

The CBR is published by the IndustrialRelations Department of the APWU:

Inquiries can be addressed to:

Greg Bell, Industrial Relations DirectorAmerican Postal Workers Union1300 L Street, N.W.Washington, D.C. 20005

Arbitration awards may be obtained fromAPWU Search, your National BusinessAgent or Regional Coordinator, or theIndustrial Relations Department at (202)842-4273. Please note that awards issuedrecently may not yet be on APWU Search.To expedite obtaining the awards, pleasedesignate the CBR issue number and AIRSnumber of the case(s) you are requesting.

Page 3January/February 2007

INTRODUCTION

Important Facts about LocalNegotiations

The language of Article 30 allows localmanagement to challenge local contract languageon the grounds that it is inconsistent or in conflictwith the National Agreement only by making areasonable claim that the language in the localagreement is inconsistent or in conflict with new oramended provisions of the current NationalAgreement.

Article 30’s provisions also restrict localmanagement’s opportunity to challenge provisionsof a local agreement on grounds that the languageis inconsistent or in conflict with the NationalAgreement to the local negotiation period.

During local negotiations, local managementmay challenge an existing local provision on thegrounds that it is inconsistent or in conflict with theNational Agreement only by making a reasonableclaim that the provision in dispute is inconsistentor in conflict with provisions of the 2006 NationalAgreement that are different from the 2000National Agreement, or with language that wasamended after the 2000 Agreement. This means,for example, that since there were no changes inthe wash-up provisions of the National Agreement,local management cannot challenge local wash-upprovisions as being inconsistent or in conflict withthe National Agreement. (Note that references inthis CBR to the 2000 National Agreement coverthe 2000-2003 National Agreement, the 2003-2005 Extension Agreement, and the 2005-2006Extension Agreement.)

Moreover, where there are changes in theNational Agreement, any local managementchallenges on the grounds of inconsistency canonly be made during the local negotiation periodthat occurs subsequent to the current NationalAgreement.

The sole exception is in the event of a mid-term change in the National Agreement. If there isa mid-term change in the National Agreement,local management may challenge a localagreement subsequent to the local implementationperiod, but only by making a reasonable claim thatthe memorandum of understanding is inconsistentor in conflict with the changed provisions of theNational Agreement.

Article 30 provides that items managementdeclares are inconsistent or in conflict with theNational Agreement shall remain in effect until fourmonths after the conclusion of local negotiations(or if there is a mid-term change in the agreement,120 days from the date the union receives writtennotice of a challenge on the grounds that thelanguage is inconsistent or in conflict) or the dateof an arbitrator’s award, whichever is sooner.

Reasonable Claim

The arbitration panel for the 2000 NationalAgreement decided that “if local managementrefuses to abide by a local memorandum ofunderstanding on inconsistent or in conflictgrounds, and an arbitrator subsequently finds thatlocal management had no reasonable basis for itsclaim, the arbitrator is empowered to issue anappropriate remedy.” Prior to the 2000Agreement, the Postal Service often declaredprovisions of a local agreement to be null andvoid, claiming that the provisions were in conflictwith the National Agreement. In many cases,these challenges simply reflected a change inmanagement, a refusal to live up to previouslynegotiated provisions, or a hostile attitude towardthe union. In some cases, local unions wonarbitration rulings on the disputed provisions, onlyto have an arbitrator restore the disputedlanguage, but without back pay or otherappropriate remedies.

Though arbitrators have always beenempowered to award an appropriate remedy,some arbitrators fail to take into account theunreasonableness of management’s actions whenthey issue a remedy. As a result of Article 30language in effect since the 2000 Agreement, localmanagement cannot simply claim that an item isinconsistent or in conflict. Management must meeta higher standard; it must establish that its claimsare “reasonable.”

Moreover, if local management refuses toabide by a disputed local provision (after the four-month period following local negotiations or amidterm change in the National Agreement), andfails to meet its burden, in accordance with Article30, an appropriate remedy should be granted.


Time Limits for Negotiations

Article 30 of the National Agreement providesfor a period of 30 consecutive days of localnegotiations which must take place within a periodof 60 days beginning April 2, 2007. This meansthat locals have a 60-day time frame to completetheir 30-day period of negotiations.

For example, a local negotiating more thanone agreement may begin negotiations on eachlocal agreement at different intervals within the 60-day time frame. However, the contract provides foronly one 30-day negotiation period for each localagreement.

If neither party provides written notification ofits intent to invoke the local implementationprocess prior to April 16, 2007, presently effectivelocal agreements shall remain in effect.

If local negotiations take place, however,where there is no agreement and the matter is notreferred to arbitration, the provisions of the formermemorandum of understanding shall apply.

Fixed Appeal Deadline

Under the provisions of the localimplementation procedures, in the event that anyissue remains in dispute at the end of the 30-daylocal implementation period, local appeals must befiled no later than June 15, 2007.

Under the 1994 contract, appeals had to bemade within 15 days after the end of each localnegotiation period, which resulted in differentdeadlines for different local agreements anddifferent locals. In 1998, the parties reestablisheda fixed deadline for appeals.

The contract provides a 75-day period afterthe expiration of the local negotiations period forthe parties at the regional level to attempt toresolve matters that remain in dispute. If theparties are unable to reach agreement, the disputecan be appealed to “impasse arbitration.” Beforethe 2000 National Agreement, an appeal toarbitration could not be filed until the end of the75-day period. The contract required that anappeal to arbitration had to be made within 21days of the end of the 75-day period. The currentprovisions permit unresolved disputes to beappealed to arbitration during the 75-day period,but no later than 21 days after the end of the 75-day period.

The contract provides for the parties at theregional level to select sufficient arbitrators from

the regular contract panel to ensure that cases areheard within 60 days of the appeal to arbitration.

Bargaining Subject Matters

Article 30 provides a list of 22 items that maybe submitted to arbitration in the event of animpasse. They cover many important issues suchas overtime desired list policies, wash-up, leavepolicies, vacations, work schedules, light-dutyassignments, seniority, reassignment andpostings. Since they are specifically listed in Article30, these items are considered mandatorysubjects for bargaining. In other words, if eitherparty requests negotiations or submits proposalson subject matters within the 22 listed items, theparties would then be required to have “good faith”negotiations. There is no requirement to reachagreement, however.

There is nothing in Article 30 that precludeslocal parties from negotiating language on issuesoutside of the 22 listed, provided that no suchagreement is inconsistent or in conflict with theNational Agreement. Many local agreementscontain previously negotiated subject mattersoutside of the 22 listed items. However, subjectmatters other than the 22 enumerated items arenot considered mandatory subjects fornegotiations, and unresolved disputes on theseitems cannot be submitted to impasse arbitration.

Impasse Arbitration

Management may submit to arbitration anyproposals on mandatory items that remain indispute which seek to change existing language inthe local agreement. However, management hasthe burden of establishing that the provisioncreates an “unreasonable burden” for the PostalService. Prior to 1990, only the union had theoption of appealing disagreements to arbitration;the Postal Service did not have the same right.During the 1990 national contract arbitration, thearbitration panel modified Article 30 to allow thePostal Service to submit proposals to arbitration,subject to management establishing that thelanguage posed an unreasonable burden on thePostal Service. A review of local issues that wereappealed to impasse arbitration under the 1990,1994, 1998, and 2000 contracts indicate that thePostal Service has not been very successful insuch challenges.


1) Review your current LMOU, item by item.

2) Gather any necessary information.

3) Decide whether you wish to add, change ordelete from your LMOU. If you decide not tomake any changes, send a letter requestingto carry forward your current LMOU. (Seepage 7)

4) Appoint or elect, as appropriate, aNegotiating Committee (all crafts should beincluded).

5) Select a chief spokesperson.

6) Set negotiation goals and priorities. Anticipatemanagement’s goals and prepareappropriately.

7) Send a notice to the postmaster that youintend to negotiate a new LMOU. (See page7)

8) Prepare proposals. (See pages 9-12)

9) Organize a record keeping system. (Seepages 12-13)

10) Meet with management to set up groundrules. (See page 13-15)

11) Review your goals, proposals, strategy, andthe role of each member of the negotiatingteam, until all the team members feelcomfortable.

Review Your Current LMOU,Item By Item

a) Has the particular provision worked well?

b) Has the language been a source of disputesand grievances?

c) What happened to any grievances filed?

d) Does the number of grievances indicate aparticular problem with an item?

e) Have members or stewards complainedabout the language or suggested changes?

f) Has the provision or a related topic come upat union meetings, labor-managementmeetings, etc.?

g) Is the provision fair to everyone?

h) If continued without change, would theprovision meet the needs of the bargainingunit through 2010 and several months of2011 until the next contract’s LMOUnegotiations end?

i) Is the LMOU language consistent with new oramended provisions of the 2006 NationalAgreement that are different from the 2000Agreement or with National Agreementlanguage that was amended after the 2000Agreement went into effect?

j) Have any changes in the National Agreementaffected your LMOU?

k) How long has the language been in yourLMOU?

l) During the life of the 2000 Contract, werethere changes (excessing, closing of a unit,transferring work, new building, etc.) that hadan impact on your local memo?

m) Will there be changes during the life of the2006 Contract (excessing, closing a unit orstation, adding new units, changingschedules, etc.) that will affect your LMOU?

Gather Necessary Information

1) To assist in evaluating current situations:

If your review of your current memo leavesyou with questions about whether the languageworked well, an Information Demand may help.

For example, you may know that there havebeen some difficulties with light duty requests.However, you may not know the extent of theproblem or whether a change in the LMOU wouldsolve the problem. The following information on

PREPARING FOR LMOU NEGOTIATIONS


each light duty request could resolve yourquestions:

a) Type of request (temporary orpermanent)

b) Action taken (approved or denied)

c) If denied, reason for denial

d) If approved, list duties to which assigned

e) If denied, how much work was missed?

f) If approved, what was duration of lightduty?

(See Sample Information Demand Letter.)

The above information would probably takesome time for management to compile. Therefore,your demand should be made early (well beforenegotiations begin) and only if necessary.

Remember, the employer may require theunion to reimburse the USPS for any costsreasonably incurred in obtaining the information(Article 31, Sec. 3). See AS-353 Handbook,Section 4-6.5 for various fees.

2) To assist in justifying your proposal:

You may already be convinced that you needto add, change or delete language in your LMOU.Is there information you can obtain frommanagement, the National, other locals, otherunions, or experts which would help you convincea reasonable person that:

a) The current language is not working well,or is causing a hardship, etc.

b) Your proposal is fair and will work well.

For example, you may know that last yearmanagement did not curtail operations at Station Xwhen the furnace broke and temperaturesplummeted. The situation was disastrous foremployees who had to work or suffer discipline.But you may not know the age, general workingcondition and number of previous breakdowns ofheating and air-conditioning units throughout theinstallation. A proposal would be more likely tosucceed if you could show that breakdowns arecommon, and the age and general condition ofunits make future breakdowns likely.

Can you show that a particular temperatureis a health hazard? Probably not. The health risksof working in hot or cold environments depend onmany factors and vary by individual. A doctor orindustrial hygienist could provide information onhealth risks and steps that could be taken toevaluate the situation and curtail operations to theextent demanded by any immediate health risks.

Information from other locals or the Nationalmight provide examples of language from otherLMOUs and specifics on situations where thelanguage worked well.

SAMPLE INFORMATION DEMAND LETTER

Feb. 15, 2007

Local PostmasterAnytown, USA

Dear Postmaster:

In accordance with the provisions of Article31, Section 3 of the 2006 NationalAgreement, and in preparation fornegotiation of a new LMOU, the Unionrequests the following information on eachlight duty request made in the previous 12months:

1) Type of request (temporary orpermanent)

2) Action taken (approved or denied)3) If denied, reason for denial4) If approved, list duties to which assigned5) If denied, duration of any missed work6) If approved, duration of light duty

assignment

If you have any questions in regard toproviding this information, we are preparedto discuss the matter.

Thanking you in advance for your promptattention to this matter.

Sincerely Yours,Local President


following language at the beginning of your LMOUso that there is some reference in the documentindicating that it is current and in effect.

Pursuant to the Local Implementation MOU, thepresently effective Memorandum of Under-standing (LMOU) shall remain in effect duringthe term of the 2006 National Agreement.

You may find yourself in a situation wheremanagement has declared several items to be anunreasonable burden and/or inconsistent or inconflict with new or amended provisions of the2006 National Agreement, but otherwise wishes tocarry forward the current Local Agreement.

Recommended language in thesecircumstances is as follows:

The presently effective Memorandum ofUnderstanding is carried forward and remainsin effect during the term of the 2006 NationalAgreement, with the exception of those itemswhich the Postal Service maintains are anunreasonable burden pending resolution inimpasse arbitration.

______/s/______ _______/s/________For the Union For the USPS

In this fashion, you can turn your convictionthat the contract needs to be changed into a well-reasoned proposal with lots of persuasivearguments.

Provide Written Notification toOpen Negotiations

If no party provides written notification of itsintent to invoke the local implementation processprior to April 16, 2007, presently effectiveMemoranda of Understanding shall remain ineffect during the term of the agreement. In otherwords, the LMOU is automatically carried forward.However, if either the union or the Postal Servicenotifies the other in writing of its intent to negotiatethe parties are required to negotiate. In the eventyou decide to negotiate changes in your localagreement, a sample notification letter is printedon this page.

Note: In the event a local wishes tonegotiate, a letter should be sent early so thatinitial ground rules can be set before formalnegotiations begin during a thirty day periodbetween April 2, 2007 and May 31, 2007.

Carrying Forward CurrentLMOU without Change

After the April 15th deadline has passed andno party has sought to open negotiations, arrangea meeting for the resigning of your LMOU. Pleasenote, regardless of whether management agreesto sign your LMOU if written notification was notprovided by the April 15th deadline, your currentLMOU remains in effect and is automaticallycarried forward.

Suggested language carrying forward yourLMOU could read as follows:

The presently effective Memorandum of Under-standing is carried forward and shall remain ineffect during the term of the 2006 Agreement.

______/s/_______ _______/s/_______For the Union For the USPS

On the other hand, if there is no signaturecopy of your LMOU, you may want to place the

SAMPLE NOTIFICATION LETTER

April 15, 2007

Local PostmasterAny Town, USA

Dear Postmaster:

Pursuant to the provisions of Article 30,Section A and B of the 2006 NationalAgreement, it is the intention of the Local ofthe American Postal Workers Union, AFL-CIO,to enter into negotiations for the purpose ofmodifying our Local Memorandum(s) ofUnderstanding with the Postal Service.

We request a meeting with you and themembers of your staff on (date) at (time) toestablish procedures to be utilized during thecourse of these negotiations.

Sincerely yours,Local President


Note that it is not necessary to includeitems declared to be inconsistent or in conflict inthe above provision since the MOU re: LocalImplementation in the 2006 National Agreementprovides that items declared to be inconsistentor in conflict remain in effect until four monthsfrom the conclusion of the local implementationperiod (September 30, 2007) or the date of anarbitration award dealing with manage-ment’schallenge, whichever is sooner.

Subjects for Negotiation

Matters which are included on the list oftwenty-two (22) items for local negotiations inArticle 30 are mandatory subjects of bargainingabout which the Postal Service and union may notlegally refuse to bargain in good faith at the locallevel.

Each party must in good faith listen to theother’s proposals, and discuss and consider thoseproposals. If an opposing party is convinced thatthere is some merit in the other party’s proposals,that party may wish to negotiate a settlement.However,if at the end of the negotiation period, aparty remains unconvinced about the merit of aproposal, there is no requirement to reach anagreement.

Section 8(d) of the National Labor RelationsAct provides that “to bargain collectively is theperformance of the mutual obligation of theemployer and the representative of the employeesto meet at reasonable times and confer in goodfaith with respect to wages, hours, and other termsand conditions of employment, or the negotiationof an agreement, of any question arisingthereunder, and the execution of a written contractincorporating any agreement reached if requestedby either party, but such obligation does notcompel either party to agree to a proposal orrequire the making of a concession . …”According to a federal appeals court decision inNLRB v. Highland Park Manufacturing Company,110 F.2d 632, p. 637 (4th Cir. 1940), the NationalLabor Relations Act “does not require that theparties agree; but it does require that theynegotiate in good faith with the view of reaching anagreement if possible; and mere discussion withthe representatives of employees, with a fixedresolve on the part of the employer not to enterinto any agreement with them, even as to mattersas to which there is no disagreement, does notsatisfy its provisions.” The Developing Labor Law,

Fifth Edition, Vol. 1 (2006), p. 826, indicates thatwhile other circuit court decisions have elaboratedon the Highland Park court’s definition of goodfaith bargaining, “the basic requirement remainsthe same: the parties must negotiate with thepurpose of trying to reach an agreement.”However, the National Labor Relations Board hasnot established “per se standards for determiningwhether the parties have met their Section 8(d)obligation to meet, confer, and seek agreement ingood faith,” according to Developing Labor Law, p.826. (Also see AIRS # 32526 where an arbitratordiscusses the meaning of good faith bargaining inrelation to local negotiations.)

Items which are outside the scope of the 22items in Article 30 may be negotiated if bothparties are willing. A national arbitration award byArbitrator Mittenthal (USPS No. H8N-5L-C 10418/N8-W-0406, AIRS # 22) established thatprovisions are not in conflict or inconsistent withthe National Agreement merely because they areoutside the scope of the 22 mandatory subjects ofbargaining listed in Article 30. Accordingly, localsshould feel free to bargain for any appropriateprovision, bearing in mind that, if it is not within thescope of the 22 items listed in Article 30, the unionmay seek agreement but the employer is notrequired to negotiate about such a provision.

If agreement is not reached on matters whichare included within the list of twenty-two items, theAPWU can appeal the dispute to impassearbitration pursuant to the Article 30 LocalImplementation Memorandum. This point isexplained by Arbitrator Mittenthal in USPS CaseNo. N8-W-0406 (AIRS # 22). On the other hand, ifa local proposes for inclusion in the LocalMemorandum of Understanding a provision whichis not within the list of twenty-two (22) items, theunion may not appeal to impasse arbitration in aneffort to obtain such a provision. (An example isthe requirement that there be breaks foremployees, which has been ruled to be outside ofthe 22 items, and therefore is not a proper subjectfor impasse arbitration (See AIRS # 32538, 34361,and 32183).) The same is true for USPSproposals. If the Postal Service proposal is beyondthe 22 items listed in Article 30, the Postal Serviceis not entitled to appeal the proposal through theimpasse procedures. If both parties at the locallevel wish to reach agreement on such a matter,however, it is permissible. If the parties reach abargain on an item outside of the 22 items, anarbitrator may enforce the agreement. (See AIRS# 38356 in which an impasse arbitrator ruled that


the Postal Service was precluded from not abidingby an agreement that the parties reached onadvance notification of overtime immediately afterthe LMOU was signed even if it is consideredoutside the 22 items; he rejected management’sargument that the grievance was inarbitrable.)Also, it should be noted that the Postal Service isnot permitted to go to impasse arbitration on pre-existing provisions concerning subject matteroutside the twenty-two (22) items (See ArbitratorMittenthal’s award in USPS Case No. HOC-NA-C-3, AIRS # 21683).

In those situations where a pre-existing localmemorandum covers an item enumerated inArticle 30, not alleged to be inconsistent with theNational Agreement; if management proposes achange in such an item and the parties cannotmutually agree to the change, management mayon its own, move the matter to the impasseprocedure. However, the USPS must demonstratethat the pre-existing provision poses anunreasonable burden.

In similar circumstances, if the unionproposes a change in such an item and the partiescannot mutually agree to the change, the unionhas the option of moving the matter to the impasseprocedure, or withdrawing its demand andallowing the pre-existing provision to remain inforce and effect.

A number of things should be kept in mind:

• If there are some issues that remain indispute, such areas of dispute should benoted in writing but the portions that havebeen agreed to will be signed offnevertheless.

• It is the position of the USPS that if it statesthat a pre-existing provision of a local memois inconsistent with or in conflict with theNational Agreement, and the Localdisagrees with the position that the item isinconsistent - then the item is to beimpassed. This is consistent with paragraph7 of the Article 30 Impasse Memo. Underthese circumstances, the local shouldimpasse the item which has beenchallenged as in conflict.

• Language in the current contract providesthat items that the Postal Service declaresare inconsistent and in conflict shall remainin effect until four months have elapsed from

the conclusion of the local implementationperiod under the 2006 National Agreementor until the date of an arbitrator’s awarddealing with management’s challenge,whichever is sooner. In addition, as statedpreviously, Article 30 provides that “[i]f localmanagement refuses to abide by a localmemorandum of understanding on‘inconsistent or in conflict’ grounds and anarbitrator subsequently finds that localmanagement had no reasonable basis for itsclaim, the arbitrator is empowered to issuean appropriate remedy.” This language doesnot allow the Postal Service to nullify allegedinconsistent provisions outright and clarifiesarbitrators’ authority to issue appropriateremedies in the event management does notmeet its burden of proving thereasonableness of its inconsistency claim.

• If a pre-existing provision is carried forward,management doesn’t have the right to arguethat such an item is inconsistent or in conflictwith the National Agreement except withrespect to changed language covering sucha provision in the 2006 National Agreementor with amendments to contract languagemade after the 2000 Agreement that apply tosuch a provision. However, if a local decidesto make a change in pre-existing languageand it is submitted to impasse arbitration,keep in mind that the Postal Service mayargue that the changed language isinconsistent with longstanding provisions ofthe National Agreement.

Writing Proposals

There are two basic approaches to writingproposals. The first method is to set forth yourproposal in the words you would print in thecontract. This method provides specifics from thestart of negotiations. However, it usually hindersnegotiations by very quickly hardening positions ofboth parties. Arguments over specific words andlanguage begin before any mutual identification ofthe problem and discussion of a variety ofalternative solutions.

Negotiations should be a process in whichinformation is exchanged at the “right” time and insuch a manner as to persuade the other side andmove them closer to your bottom line (whichremains unknown to the other side). The proposal


containing contract language will make thisjudicious exchange of information more difficult.

Instead of proposing specific agreementlanguage, we recommend that you state yourproposed changes in conceptual form. Theproposal should identify a problem and suggestcorrecting the problem without spelling out thedetails of “how to” correct it.

Sample Proposal With ContractLanguage

Proposal: Change Article “X” of the LMOU toread:

“The Choice Vacation Period will begin June15 of each year and end on Labor Day.”

Sample Proposal in Conceptual Form

Problem:Parents with school age children even thoughthey have ten years of seniority cannot get avacation during the summer school break.

Proposal:Vacation Period should be changed toaccommodate the needs of employees.

With the sample proposal containing contractlanguage, management is likely to respond:

“Why June 15, it could be the middle of theweek?”

or

“That’s only 11 weeks; it’s ridiculous”

With the sample proposal in conceptual form,management is likely to respond:

“We need more information. What are theneeds of employees?”

or

“Are you proposing a shorter period?”

In the first case, discussion centers on a dateor the proposal gets instant rejection. In thesecond case, the proposal invites the Service to

ask the “right” question. Discussion is likely tocenter on the problem. Not knowing where you areheaded management may agree that certainthings do pose a problem. When managementconcedes there is a problem, although they stillmay not buy your solution, it will be hard for themto rationalize a refusal to do anything about theproblem.

Another example of a sample proposal inconceptual form is as follows:

Proposals to Clarify Rights

Suppose as a matter of practice, you nowhave a five-minute wash-up period before lunch.You would like to spell it out in your local memo.You must be careful.

Violations of past practices as well asunilateral management actions to change oreliminate past practices can be grieved asviolations of Article 5 of the National Agreement. Ifyou can show that a practice is mutual(management and union know about the practice),long term (existed for sometime) and consistent(always occurs without significant variation), thenthe practice probably has attained the status of acontract benefit which cannot be changed byunilateral action.

In this example you already have a five-minute wash-up before lunch. You do not need tonegotiate this benefit. You have it already.

In fact, you could eliminate the five-minute

SAMPLE PROPOSAL

Union Proposal Number 10Article 30 Item 2

PROBLEM

40% of the work force never gets a weekend off.All of the Monday through Friday schedules are inCustomer Service and no one in Mail Processinghas both Saturday and Sunday off.

PROPOSAL

The basic workweek schedules should be changedto provide better distribution of Monday throughFriday schedules and the opportunity for everyoneto have an occasional weekend off.


wash-up by negotiations. Suppose you attempt tonegotiate and do not succeed in adding specificlanguage to the contract. If you grieved asubsequent violation based on practice,management might argue (and this argumentworks well in arbitration) that the five minute wash-up is not a practice that has attained the status ofa contract benefit. Otherwise, why did the unionattempt to negotiate five-minute wash-ups into theLMOU? You don’t ask for a benefit you alreadyhave. The specific language of your proposalwould probably be characterized as anunachieved demand. In a rights arbitration thearbitrator will not award you a right which was anunachieved demand in local negotiations.

However, you might want to write yourcurrent benefits into the LMOU for a variety ofreasons. If you so desire, your proposal mustclearly state that the proposal is based uponexisting benefits.

Sample Proposal Clarifying ExistingBenefit

Problem:

Currently all employees receive five minutes ofwash-up time before lunch. The LMOU doesnot spell out this benefit.

Proposal:

The union proposes to spell out the rights ofemployees to wash-up time, so the LMOU willreflect the parties’ understanding on wash-uptime.

Should the above proposal not be achievedin negotiations, the proposal should not weakenyour case in the event management seeks torestrict wash-up time.

Clarity of Proposals

When entering into local negotiations animportant point to remember is that the languageof newly negotiated provisions ought to be as clearand precise as possible. “Clear and precise”means that the selected language shouldaccurately reflect the parties’ intention of theapplication of the language.

When parties to a collective bargainingagreement fail to clearly state the application of a

contract provision, an impartial arbitrator will becalled in to determine the meaning of anyambiguous language. The problem with this is thatthe parties who negotiated the provision and whowere aware of the provision’s intended meaningwill be left with an uninvolved party, who isunfamiliar with the background of the negotiation,to decide what the contracting parties intended atthe time of negotiations. One of the consequencesof failing to clearly state what the contractlanguage means is that both parties can be leftwith a meaning and application decided by anarbitrator that neither party intended. The resultwill be that the parties have to wait until the nextlocal contract negotiations to be able to onceagain attempt arriving at a clear meaning andunderstanding.

Another concern that the parties ought totake into consideration when negotiating contractlanguage is that if a provision is left with anambiguous meaning and an arbitrator is asked todetermine how the provision should be applied,different arbitrators can give different meanings tothe same contract language. Thus, if one arbitratordecides that the language of a provision should beapplied one way, it is possible that anotherarbitrator will apply the language in another way.The bottom line is that locals are thus left withinconsistent decisions interpreting the sameprovision.

An additional side effect of the failure of theparties to negotiate unambiguous terms into theiragreement is that the resulting ambiguouslanguage can be a catalyst for an increasingnumber of disputes.

Guidelines to Consider in DraftingContract Language

A good source to refer to when entering intocontract negotiations is How Arbitration Works, 6th

Edition, Elkouri & Elkouri (2003). This referencecan provide significant guidance on how to beclear and precise in the construction of contractlanguage. This can serve as a means of avoidingthe implementation of ambiguous contractlanguage. The following are some generalguidelines to consider:

a) Because arbitrators will normally give wordstheir ordinary and generally acceptedmeanings, parties to an agreement shouldspecifically state if they intend for certainwords or phrases to take on different


meanings than would ordinarily be attributedto them. Absent any language indicating thatthe parties intended for a different meaning tobe attributed to the work, arbitrators can usedictionary definitions to clear up ambiguities.

b) The collective bargaining agreement will beconstrued as a whole and arbitrators willconstrue ambiguous terms to be consistentwith the rest of the agreement. If the partiesintend for one provision to be an exception toother provisions, the parties shouldspecifically state that intention.

c) One way of interpreting the contract is thatthe expression of something in a contractprovision will infer that the failure to expresssomething else means that it has beenexcluded. For example, in Article 30 of theCollective Bargaining Agreement between theAmerican Postal Workers’ Union and thePostal Service, the parties have specificallyenumerated 22 items that are negotiable atthe local level and which, if an impasse isreached, will proceed to arbitration. In AIRS #514, the arbitrator held he did not havejurisdiction to render a decision on the issueof advance notice of overtime since it was notamong the 22 enumerated items of Article 30.A similar result was reached in AIRS # 526.

Although the approach of “the expression ofone is the exclusion of another” holds in someinstances, the outcome of interpreting a provisionthat expresses some things but not others will inlarge part depend upon the arbitrator. Forexample, in AIRS # 13036/37 one arbitrator held,consistent with Arbitrator Mittenthal’s decision inUSPS Case Nos. H1C-NA-C 59 and H1N-NA-C-61, the subject of the percentage of employees offduring the non-prime time period was notprecluded from negotiation even if it was notspecifically mentioned as one of the 22 items. Thearbitrator’s reasoning was that because theproposal was neither inconsistent with nor did itvary the terms of the National Agreement, coupledwith the fact that the parties made offers andcounter offers during local negotiations andimpasse was reached, the matter at hand wasarbitrable.

Because one can’t be certain as to how anarbitrator will decide an ambiguity, the partiesshould simply remember to have the language of a

contract provision reflect their intentions, to theclearest extent possible.

Organize a Record KeepingSystem

During negotiations you will need to keeptrack of:

1) What items were discussed

2) Where the discussion left off

3) Current status of each item

4) What items are scheduled for discussionsand when

You will also need sufficient notes ofdiscussions to tell if management has signaledthat certain doors are open or closed. Ifmanagement has made a concession you willwant the type of notes that will keep them fromretrieving their concession.

At the conclusion of negotiations you willneed records sufficient to:

1) Follow impasse procedures

2) Document the intent and meaning oflanguage if a dispute arises

3) Help the next negotiating team by providingbackground material on proposals which maybe resubmitted at later negotiations (e.g.management’s reasons for opposingproposal).

It is suggested that one person on yournegotiating team take notes and keep records.That person’s only responsibility should be notesand record keeping. A person cannot take goodnotes if he/she is participating in the discussions.The notetaker should be on the team,knowledgeable about the issues so that importantthings are not missed. A secretary may well get90% of all words spoken but not record thesubstance of what was said. You don’t need atranscript ten volumes thick. You need usefulinformation in short concise form.


We suggest that the notetaker keep:

1) An agenda for each negotiation session.

2) A set of minutes/notes of each negotiationsession.

3) A complete set of all union and employerproposals and counter-proposals, withcarefully noted dates and times when theproposals were made.

4) A status or summary sheet for each proposal(See sample union status sheet above).

Setting Ground Rules

Ground rules should be set prior to the startof negotiations. You should include a statementrequesting a meeting to set ground rules in yourletter notifying management that you intend tonegotiate (See page 7). Keep ground rules simple.

In order to have successful negotiations theparties need to talk to each other and exchangecertain documents. This means you have to setdates, times and places for meetings. As aminimum, the ground rules must provide ameeting to open negotiations and a method forscheduling future meetings. Ground rules do nothave to be written and signed. However, writtenground rules may be advisable depending on your

SAMPLE UNION STATUS SHEET

Union Proposal #________ Title_______________________________________

Initial Submission Date: ________ Article 30 Item _________________Union Counter Dates: National Agreement/Handbook References:

___________ Article ________, Section ________________ Article ________, Section _____

Employer Counter Dates: Handbook _____, Section _____LMOU Article _____, Section _______

______________________

Settled Date: _______ Withdrawn Date: ______ Unresolved (Last Date of Negotiations):_____

Notes:(date) (What Happened) ______________________________________________________

__________________________________________________________________________________________________________________________________________

(date) (What Happened) ________________________________________________________________________________________________________________________________________________________________________________________________

(date) (What Happened) ________________________________________________________________________________________________________________________________________________________________________________________________


relationship with management.Various types of rules or procedures you may

need to agree upon follow. Keep in mind - If youdon’t need a rule, don’t write one.

Locals should note that LMOUs should benegotiated within the period set out for localnegotiations. If you negotiate outside thenegotiation period, the LMOU may later bedeclared to be null and void by the Postal Service.In a national level award, Arbitrator Mittenthaldenied a grievance challenging such managementaction in the case of LMOUs negotiated by theLetter Carriers (USPS Case Nos. H7N-1F-C39072, H7N-1F-C 39075, H7N-1F-C 39076).However, note that in AIRS # 27116, a regionalarbitrator ruled that an addendum to an LMOUnegotiated outside the local negotiations period,which addressed matters relating to a nationalMOU on Transitional Employees adopted after that

the negotiations period, was not null and void asargued by the Postal Service. In addition, anotherregional arbitrator in AIRS # 40728 ruled that amemorandum of understanding entered intooutside the local negotiations period, but related tothe policy of overtime in the LMOU for the BulkMail Dock Clerk Section, could not be unilaterallyvacated by management since the MOU was notintended by the parties to be a part of the LMOU atthe time it was entered into. Moreover, since theparties understood that the MOU could berenegotiated during the following period of localnegotiations and no renegotiation was undertakenduring the 1999 or 2002 LMOU periods, thearbitrator ruled that it continued in full force andeffect.


SAMPLE RULES AND PROCEDURES FORNEGOTIATIONS

Representative of the United States Postal Service and the____________ American Postal Workers Union, AFL-CIO,agree to conduct joint negotiations for a Local Memorandum ofUnderstanding in accordance with the following procedures:

PLACE OF NEGOTIATING SESSIONS:

Negotiations will be held in Room _________, Building___________. Union negotiators will use Room ______ forcaucus purposes.

TIME SCHEDULE FOR NEGOTIATING SESSIONS.

Negotiations will be conducted (day) through (day) duringhours mutually agreed to by the parties. Changes in the timeschedule may be made by mutual consent of the Union andEmployer spokespersons. The parties agree that the timeschedule should be kept flexible to achieve a productive levelof negotiations. Negotiations shall commence on (date) at(time).

NEGOTIATING TEAMS

The negotiating team for each party will not exceed a total of____negotiators.

A. Negotiators for the parties will be:

Union Spokesperson____________________________Members _____________________________________________________________________________________________________________________________________Employer Spokesperson_____________________________Members___________________________________________________________________________________________________________________________________________

B. ALTERNATES: Either party may designate no more than______alternate negotiator(s) to serve in place of each regularnegotiator. Alternates may be present at all negotiatingsessions.

C. CHANGES OF NEGOTIATORS. If either party finds itnecessary to change negotiator(s) or alternates, thespokesperson for either party shall notify the spokesperson forthe other party of such change.

D. TECHNICIANS. Technicians may attend negotiatingsessions at the discretion of either party.

SUBCOMMITTEES

By mutual consent the spokesperson for the parties mayestablish subcommittees, consisting of an equal number ofrepresentatives of each party, which may include negotiators,alternates and technicians. The spokespersons shalldetermine the purpose, scope, authority and operations ofsuch committees.

RULES OF ORDER

The chief spokesperson for each party may speak at his/herown discretion. The other negotiators and technicians mayspeak when recognized by their respective chief

spokesperson.

Negotiation sessions shall be chaired on an alternating basisby the spokesperson for either party.

ORDER OF BUSINESS

The regular order of business at any negotiating sessionshould be as follows:

(a) Unfinished business from preceding session.

(b) Items on the agenda agreed upon by the parties at thepreceding session.

(c) Establishing the agenda for the next session.

(d) Submission of additional proposals or counterproposals.

RECESS

The spokesperson for either party may call a recess for thepurpose of a caucus at any time. Negotiations shall resumeupon mutual agreement.

MINUTES

No official minutes of the proceedings of the negotiatingsession should be made. However, either party should beallowed to prepare unofficial minutes for its own use.

AGREEMENT

When a proposal on a specific issue has been agreed upon,the parties should also agree to the effective date of theproposal, as well as any other factors affecting implementation.

REVIEW OF ISSUES REMAINING IN DISPUTE

The 2006 Agreement local implementation period willcommence on_______ (date within 60-day period betweenApril 2, 2007 and May 31, 2007) and terminate on _____ (nolater than May 31, 2007). If issues remain in dispute after theimplementation period the parties shall identify the issues inwriting and submit initialed copies of all proposals andcounterproposals pertaining to the issues in dispute no laterthan June 15, 2007 to the appropriate management official atthe grievance/arbitration processing center, to the Postmaster,the Local Union President and the Union’s RegionalCoordinator.

The USPS Area Representative and the Union RegionalRepresentative shall attempt to resolve the matters in disputewithin 75 days with both representatives having full authority toresolve the issues in dispute. If unable to reach an agreementduring the 75 day period, the issues may be appealed to finaland binding arbitration by the National Union President or theVice President, Labor Relations, no later than 21 days after theend of the 75 day period. If no agreement is reached and thematter is not referred to arbitration then the provision(s), if any,of the former LMOU shall apply.

CHANGES IN RULES AND PROCEDURES

After the commencement of negotiations, changes andadditions to these rules and procedures for negotiations maybe negotiated by the spokesperson for both parties.


Under contracts in effect between 1973 and1990, if the Postal Service wanted to change oreliminate certain contract language it couldbargain to agreement or impasse. Failingagreement, it used to be the union’s optionwhether or not to appeal an impasse to arbitration.The Postal Service could not make an appeal. Ifthe union decided to live with the current LMOUprovision, the USPS had no alternative but to dothe same. This union-only appeal right (incombination with a union agreement to limit localnegotiations to only 22 items) was intended to limitthe number of impasses. The last time the USPShad the right to appeal impasses (1971) therewere more than 100,000 appeals to arbitration.The union-only appeal worked. It reduced impassearbitration appeals to a manageable number.

During the 1990 negotiations and impassearbitration, the USPS made a number ofarguments in support of a USPS right to invoke theimpasse procedures. Among other things, theUSPS argued that a number of LMOU contractprovisions had over time become an unreasonableburden on the USPS - but the unions wereunwilling to voluntarily agree to a change. TheUSPS was short on specific examples. However,the Postal Service gave two general examples.First, the USPS contended there were caseswhere the union and management agreed to afixed number of employees on vacation each weekof the choice vacation period. The Service claimedthat the fixed numbers may have been reasonablefifteen years ago when originally negotiated, butthe fixed numbers were now an unreasonableburden on the USPS given the smaller workforcein an office.

Second, the USPS also gave the example oftwo or more stations or branches merging into asingle building. Under the old LMOU each stationwas a section. Now in a single building, the USPSclaimed it was an unreasonable burden to have toschedule overtime, holidays, etc. in the oldseparate sections rather than the whole buildingas a section. Again it claimed the unions weregenerally unwilling to make a change.

Despite the shortage of proofs and unionconcerns about a flood of impasses, ArbitratorMittenthal granted the Postal Service a “limited”right to impasse. The “limit” on USPS impasseswas intended to favor the status quo and prevent a

flood of impasses. Therefore, the USPS may onlyappeal an impasse to arbitration when it candemonstrate that the current LMOU provisionimposes an “unreasonable burden” on the Service.Please note that Article 30 of the NationalAgreement limits the Postal Service to thefollowing avenues when attempting to changecontract language at the local level:

1) By claiming a pre-existing LMOU or provisionin the LMOU poses an unreasonable burden,as long as the items challenged are within thelist of 22 items in Article 30. In this situation,if the parties at the regional level are unableto reach agreement on the disputedprovision(s), then management has the rightto invoke the impasse procedure byappealing the dispute to impasse arbitration.

2) By challenging local contract (LMOU)language on the grounds that it isinconsistent or in conflict with the NationalAgreement only by making a reasonableclaim that the language in the localagreement is inconsistent with new oramended provisions of the current NationalAgreement. In this situation, if managementclaims a provision of a local agreement isinconsistent or in conflict, and the parties atthe regional level are unable to reachagreement on the disputed provision(s), thenthe union has to invoke the impasseprocedure by appealing the dispute toimpasse arbitration.

3) When installations are consolidated or whena new installation is established, the NationalAgreement provides that the parties shallconduct local negotiations, and that allproposals remaining in dispute may besubmitted to impasse arbitration by either thePostal Service or the APWU. However, in thecase of consolidation of installations, wheremanagement is seeking to change aprovision from a local agreement whichapplied to one of the prior installations,management has the burden of establishingthat continuing the existing provision wouldrepresent an unreasonable burden in theconsolidated installation. And, wheremanagement is seeking a new provision on

MANAGEMENT’S RIGHT TO IMPASSE


an item not covered in a previous LMOU ofthe prior installations, the union should arguethat management must show that failure toinclude the provision it is seeking would resultin an unreasonable burden on management.

When the USPS makes an appeal, thethreshold question must be - “Can the PostalService demonstrate that the current LMOUprovision has proven to be an unreasonableburden?”

Only if the USPS can prove that the currentprovision poses an unreasonable burden shouldthere be a hearing on what provision shouldreplace the current provision.

Unreasonable Burden

As a preliminary matter, the union shouldargue that there needs to be a threshold finding onwhether the pre-existing provision places anunreasonable burden on the Postal Service beforeconsidering any USPS proposal to change theprovision. This may prevent the arbitrator frombeing influenced by potential alternative proposalsoffered by the Postal Service that would changethe current LMOU provision. When determiningwhether or not continuation of the existingprovision would represent an unreasonableburden to the Postal Service, the arbitrator shouldlook at the current provision and look back to thehistory of the provision to see whether itsapplication has imposed an unreasonable burden.The question before the arbitrator is not whetherany USPS proposal is more efficient, less costly ormore reasonable. The question is whethercontinuation of the existing provision representsan unreasonable burden to the USPS. The“unreasonable burden” test must be met beforeconsideration of any USPS proposal to change apre-existing provision.

At least one arbitrator has accepted thisargument. In AIRS # 21668, the arbitrator ruledthat the Postal Service must demonstrate that acurrent provision is an unreasonable burdenbefore determining what alternative languagewould be appropriate. The arbitrator refused toconsider the Postal Service’s proposal to changethe percentage off during the choice vacationperiod from 14% to 10%. It should be noted,however, that several arbitrators have refused theunion’s request to bifurcate a case to consider theargument of unreasonable burden in a first

proceeding before considering the merits in asecond proceeding (AIRS # 20659 and 20493,20494, and 20495, and 23385).

The union should object to any PostalService evidence or arguments introduced duringarbitration that were not raised duringnegotiations. It should argue that if the PostalService does not disclose all evidence andarguments during negotiations, it is precluded fromsubmitting this evidence or these argumentsduring arbitration. The Postal Service may arguethat Article 15 of the National Agreement does notapply to impasse arbitration proceedings.Arbitrator Bentz rejected this argument in AIRS #21635 and stated that this position “not only flies inthe face of Section 8(a)(5) of the NLRA but alsoArticle 31, Section 3 of the National Agreement.”He then refused to admit management exhibits onthe issue of non-choice vacation on the basis thatsuch documentation was not provided duringnegotiations.

Also, in AIRS # 21668, Arbitrator Abernathyheld that “fundamental fairness” dictates that if thePostal Service had information available at thetime of local negotiations, it should have presentedsuch information to the union. He indicated thatthough he would not refuse to consider suchevidence, he would not give it “as great a weightas if it had been presented to the Union earlier inthe procedure.” In addition, Arbitrator Kleindeclined to issue a ruling on the Postal Service’sunreasonable burden argument sincemanagement did not present cost information tosupport its argument during local negotiations.She said that “Article 15 requires full disclosure byparties, and Management only discussed theirunreasonable burden argument in generalities asit pertained to administering the Standard FieldAccounting.” (AIRS # 26856-58) Another arbitratorruled that management arguments that a provisionwas inconsistent and in conflict with the NationalAgreement were waived because they were neverraised until the arbitration proceedings. (AIRS #27191)(However, see AIRS # 21035 and 36126 inwhich arbitrators rejected the union argumentsthat the Postal Service could not raise an issue notraised or submit evidence not previouslyexchanged during local negotiations.)

The union should then emphasize to thearbitrator that the burden of proving that a pre-existing provision is an unreasonable burdenshould be squarely placed on the Postal Service.The union should not have to prove that theprovision is not an unreasonable burden. The


union should then define clearly whatunreasonable burden means and what thearbitrator should look for. Arbitration awards on theissue have defined the term and made it clear thatthis standard places a heavy burden of proof onthe Service. In addition, factual support for theService’s case should be comprehensive and notbased on generalities alone.

Definition of Unreasonable Burden

Arbitrators have looked to the definition of“unreasonable” and “burden” as it is found inWebster’s Ninth New Collegiate Dictionary and inBlack’s Law Dictionary, Fifth Edition. Webster’sdefines “unreasonable” as 1.a. not governed by oracting according to reason b: not comfortable toreason: absurd 2: exceeding the bounds of reasonor moderation. Black’s defines “unreasonable” asirrational; foolish; unwise; absurd; silly;preposterous; senseless; stupid; not reasonable;immoderate; exorbitant; capricious; arbitrary;confiscatory. Webster’s then defines “burden” as1.a.: something that is carried: load b: duty,responsibility 2: something oppressive orworrisome: encumbrance 3.a: the bearing of aload - usually used in the phrase beast of burdenb: capacity for carrying cargo. Black’s defines“burden” as: Capacity for carrying cargo.Something that is carried. Something oppressiveor worrisome. A burden, as on interstatecommerce, means anything that imposes either arestrictive or onerous load upon such commerce.

According to one arbitrator, the followingcriteria have to be applied to determine whetherthe Service met its burden of proving the existenceof an unreasonable burden:

(A) Does the provision create a substantialobstacle to, or prevent, the Service’saccomplishment of its business purpose;

(B) Does the provision have an inordinatenegative impact on the health or safety ofpostal patrons or employees;

(C) Does the provision have an undue negativeimpact on the financial and other resources ofthe facility or the Service;

(D) What is the existence, nature, cost, andeffectiveness of alternative means, other thanthe elimination or modification of existing

LMOU provisions, of alleviating the allegedUndue Burden;

(E) What change has occurred, or will occurduring the LMOU term, in the operationalconditions existing at the time the provision inquestion was agreed which has contributed,or will contribute, to the creation of theUnreasonable Burden?” (AIRS # 20659)

Another arbitrator defined the appropriatedefinition of “unreasonable burden” in the contextof the case as “something that is borne with anexcessive, irrational or immoderate degree ofdifficulty” (AIRS # 21668). He went on toemphasize that “‘unreasonable burden’ is clearlymore than a mere ‘burden’” and “a distinction mustbe made between a ‘burden’ imposed by aparticular LMOU provision and an ‘unreasonableburden.’”

A third arbitrator stated that “[t]he term‘unreasonable burden’ is subjective, but anydefinition would, nonetheless, requiredemonstration of a substantial impact” (AIRS #20765 and 20766). He continued by saying that“[m]erely being an inconvenience would not be anunreasonable burden. Nor would some additionalcosts, slight delay in mail processing - dispatchingand modest overtime satisfy the test.” Also seeAIRS # 33542 for similar reasoning.

According to another arbitrator, “anappropriate definition of ‘unreasonable burden”clearly requires more than just evidence that a‘burden exists, otherwise the word ‘unreasonable’would not have been included in Section F ofArticle 30” (AIRS # 22499). Also see AIRS # 32509for similar reasoning.

The union’s argument that an unreasonableburden does not mean a “mere ‘difficulty’ or‘complication,” was accepted by an arbitrator. Hesaid that in order to change an item of an LMOU,“[t]he Service must show that the challengedLMOU provision constitutes an immoderate orexorbitant imposition, which reason cannot justifyor excuse” (AIRS # 20748).

Another arbitrator stressed that the burden ofproof “lies with the Postal Service, under the clearnew language of the National Agreement.” Hewent on to say that “[n]either the Union, nor theArbitrator in this interest arbitration, must establishthat the existing provision is ‘reasonable”... ratherthe union may simply argue it is not an“unreasonable burden,” if the Employer has made


at least some plausible arguments supportive ofthat assertion” (AIRS # 20725). Also see AIRS #20724.

In addition, an arbitrator stated that in orderto evaluate arguments under the unreasonableburden test, “it is not enough for the Agency toestablish its proposed change is more meritoriousthan the existing language.” Moreover, accordingto this arbitrator, “[n]or can the Agency meet theSection 30.F test by simply demonstrating that thepresent LMOU is burdensome in some fashion.”“Instead,” he said, “it must show not only that aburden is created, but that it is unreasonable”(AIRS # 27697-98).

Another arbitrator said that since thelanguage of the National Agreement does notafford an arbitrator “a definitive objective standard”regarding what constitutes an unreasonableburden, “the effect of Article 30 F is to favor theexisting local contractual arrangements betweenthe parties unless it can be shown that any sucharrangement imposes an unreasonable burdenupon the Employer.” In addition, he stated thatunder Article 30.F of the National Agreement, “theService must prove not only that a provisionentails some burden, inefficiency or delay, but thatthe extent or nature of the burden isunreasonable” (AIRS # 28291-92).

In a case in which the Postal Service wasagain challenging a provision that it had agreed toremain by virtue of prior settlements of impassedisputes, an arbitrator stated that these priorsettlements must be considered to place “an evengreater burden” on the Postal Service. “Because ithas settled impasse disputes in the past andagreed to the current language which it nowdisputes, in order to prevail on the unreasonableburden question, the Service will have todemonstrate substantial facts that something hassignificantly changed since the last round of localnegotiations which can now be considered ascausing an unreasonable burden” (AIRS # 27543and 28327).

Postal Service Arguments

In making its case, the Postal Service willargue that every obligation is a burden and it onlyhas to prove that a provision is not fair rather thanunreasonable. In addition, it may argue that theprovision has a negative impact on servicestandards or a negative impact on the facilities’overall operations. It also may contend that there

is a financial burden to the Postal Service, asmeasured by out-of-schedule overtime, nightdifferential or other costs. It may assert that thereis an administrative burden because overlycumbersome procedures make it difficult tocomply with the contract. In addition, it may arguethat anticipated changes will affect administrationof the current provision or that changes havealready affected administration of the provision.Only a few arbitrators have determined that thePostal Service met its burden of proving that anunreasonable burden existed (See AIRS # 20730and 20945 - provisions deleted because ofadministrative burdens they would have created;#20574 - provision deleted because clear financialburden was proven; #20548 -provision deletedbecause of demonstrated proof of reductions instaffing; #20380 - provision deleted because ofproof that 40% or more of tractor-trailer operatorshave taken vacation during two pay periods;#20378 - provision deleted because of need tochange from absolute number of employees off topercentage off; #20726 -provision deletedbecause it is inconsistent and in conflict withAgreement and therefore an unreasonableburden; #21258 -provision deleted because ofneed to comply with federal clean air act law;#20764 -provision deleted because of excessivecost; #26898 - provision deleted because it isinconsistent and in conflict with Agreement anddue to unreasonable cost of two four minute wash-up periods daily; #26637 -provision deletedbecause of unreasonable administrative burden;#26724 - management’s proposal to changeexisting provision because of unreasonableburden accepted by arbitrator).

Union Response

Most arbitrators have rejected the abovearguments for the following reasons:

• An unreasonable burden is not just anyburden

One arbitrator ruled that even though theService’s case suggested that a pre-existingprovision presented a burden, it was a burden “forwhich it has solutions.” He said that the Service“may prefer to avoid any burden entirely but that isnot enough to satisfy the contractual standard”(AIRS # 20796).


Another arbitrator indicated that anunreasonable burden is a “heavy burden” and notthe “’normal’ burden of showing a contractprovision is burdensome or expensive orinconvenient.” He said that “it is closer to theburden of showing that a contract provision makesmanagement of the operation nearly impossible”and “assumes that the Union and the employeesgave up something to achieve a contract provisionand should not be required to give up thatnegotiated gain except through negotiation —unless conditions so change or implementation ofthe provision so changes that its continuationthreatens the efficiency and profitability of theoperation itself” (AIRS # 42763).

A third arbitrator has rejected management’scontention that fixed permanent and temporarylight duty assignments for the Clerk Craft set at 12assignments for Tour 1, 4 assignments for Tour 2and 8 assignments for Tour 3 constituted anunreasonable burden. Evidence that newmachinery reduced the number of positions on alltours and volumes processed on the ManualPrimary Line where light duty employees aregenerally placed merely proved that managementwas inconvenienced, not that it was “severelytaxed” by the required number of reservedassignments or prevented from maintainingefficiency of operations (AIRS # 38738).

• Provisions which affect management rightsare not per se unreasonable burdens

The Postal Service’s argument, thatlanguage in an LMOU which constrainsmanagement’s exclusive rights is, per se, anunreasonable burden, has been rejected. Onearbitrator said that Article 3 gives the PostalService “exclusive rights ‘subject to the provisionsof this Agreement’.” Thus, rights “may bediminished or constrained where the Employer soagrees” as it did when it agreed to a pre-existingprovision (AIRS # 20722).

Management’s assertion, that “any limit on itsdiscretion in assigning or scheduling PTF’s is anunreasonable burden” was rejected. The arbitratorruled, that given permissive language in thememorandum stating that “[t]otal working hourswithin a pay period for part-time flexible clerksshall be as nearly equal as possible”, thisprovision did not constitute “an unreasonableburden.” He went on to state that there were only

six PTFs in the facility and during the ten years theitem was in the LMOU, the parties experienceddisputes on only three occasions and managed toresolve their differences on every occasion exceptone (AIRS # 20379).

• Proof of plan failure must be for more thanan isolated period

One arbitrator ruled that the Postal Servicehad not met its burden of proof that allowing 15%of each tour to be off during the choice vacationperiod constituted an unreasonable burden. Hesaid that “evidence of one isolated period of planfailures during a one week period in March 1991”was “just not enough evidence to support theunreasonable burden standard of proof which theNational Agreement specifies” (AIRS # 20493,20494, and 20495).

• Proof of future impact on facility should notbe speculative

One arbitrator said that management had notproven that a provision allowing 15% ofemployees per section to obtain vacation duringthe choice vacation period and limiting the periodof choice vacation to 18 weeks constituted anunreasonable burden. He indicated that “[a]substantial element of the Service’s caseconcerned the future impact that automation mayhave within the facility.” “It may very well be thatthe two items the Service now seeks to modify inthe LMOU will, after automation, place anunreasonable burden on their operation of thefacility, but at this stage anything in this area isspeculative” (AIRS # 20765 and 20766).

Another arbitrator held that the PostalService had not proven that an unreasonableburden existed due to a provision allowing thatleave during the choice vacation period shall be bytour. He indicated that the Service had not proventhat excessive overtime was used to fill manpowerneeds in the maintenance craft. In addition, theargument that increased automation in the Postalfacility would increase demand for skills of theElectronic Technicians and Equipment Mechanicswas “speculation” (AIRS # 20929).

A third arbitrator ruled that the Postal Servicefailed to sustain its burden of showing that shortnotice leave requests or requests made less thana week before leave is taken, with the exception ofsame-day leave requests, constituted anunreasonable burden. He found that testimony of


Postal Service witnesses, which failed todocument specific problems with other than sameday leave requests was “too general andspeculative to meet the burden of proof” (AIRS #20722).

A fourth arbitrator refused to credit the PostalService’s argument that projected automation, inthe event the post office received a DBCS, wassufficient to prove the existence of anunreasonable burden in the case of a provisionsetting up sections for reassignment within aninstallation of employees excess to the needs of asection. He found that there wasn’t evidence that“tentatively-scheduled automation is certain tooccur.” He continued that “[e]ven assumingarguendo that the DBCS would produce theunreasonable burden Management urges, it isvery difficult to see how that burden would ariseuntil the plans for the equipment become moredefinite” (AIRS # 22010).

A fifth arbitrator rejected management’sassertion that anticipated staff reductions due toautomation required modifying a provision allowingthree clerks to be granted leave during the 22weeks of the choice vacation period. He found that“[t]he problem as presented is that the exact factsof the reductions are anticipated but not certain”(AIRS # 20658).

A sixth arbitrator found that the PostalService failed to identify when automation oroperational changes would actually occur, andthus did not prove that a leave provision whichallowed a set percentage of 12% off duringFebruary through September, and 8% duringOctober and November, for other than choicevacation periods constituted an unreasonableburden (AIRS # 20726).

• Cost considerations alone are insufficient

An arbitrator held that the Postal Service didnot establish that a provision allowing five minutesof wash-up time before lunch, as needed, andbefore the end of a tour of duty, as needed, toclerks, special delivery and maintenance craftemployees was an unreasonable burden. ThePostal Service merely presented cost datashowing that 60 clerks use the equivalent of 10hours per day at the straight-time rate for wash-upand that 60% of that time is being used fornonproductive purposes. He said that paid time forwash-up can be viewed in a manner similar tobreaks, sick leave and annual leave in that thePostal Service can handle any abuse or misuse of

wash-up time through the disciplinary procedure.He found that the Postal Service did notdemonstrate that it had taken any alternativemeasures to handle abuses, and therefore had notproduced sufficient evidence to establish that anunreasonable burden existed (AIRS # 22498 and#22499).

Another arbitrator ruled that the PostalService’s claim, that a provision allowing fiveminutes of wash-up time for clerks both beforelunch and at the end of a tour was anunreasonable burden, lacked support in therecord. He indicated that the only evidencepresented by management was that a substantialcost was involved since clerks receive 1354 hoursof wash-up time per week which allegedlyamounts to $1,625,076 per year. The arbitratorfound that it was significant that the fixed time forwash-up had been in effect for approximately 30years. “To now argue that the wash-up time ineffect well before 1970 represents anunreasonable cost burden on Management is notconvincing,” he concluded (AIRS # 32504).

The Postal Service’s argument that anovertime pecking order that required the use ofODL employees before part-time flexible andsupplemental employees was costly because ofunnecessary funds used on penalty overtime, wasnot found to be sufficient to prove the existence ofan unreasonable burden. The arbitrator found thatthough management provided some evidence onovertime usage, it did not show how its costswould be affected if the pecking order were not inplace. In addition, he indicated that evidencecomparing overtime costs at this facility and otherfacilities that do not use an overtime pecking orderwas not persuasive since the facilities relied uponwere not comparable in number of employeesinvolved and mail volume (AIRS # 32116).

• General arguments rather than proof areinsufficient

The Postal Service’s general argument thatthe elimination of a holiday pecking order whichallowed full-time regular volunteers to be workedbefore casuals or part-time flexible employees,would result in cost savings is insufficient. Itcontended that it needed the flexibility that greateruse of casuals and PTFs could provide, and thatscheme knowledge is no longer needed so thatcasuals are qualified to operate automatedequipment. An arbitrator said that “in the absence


of any data whatsoever which indicates what workwas done, and by whom, how steady the volumeof work was, whether the particular operations inquestion on the holidays were in fact of the naturethat the PTFs or casuals could have performedthem at a level such that there would be someclear cost savings, so that the continuation of theexisting practice does in fact present a costburden to the Employer which is of suchmagnitude as to be ‘unreasonable,’ no suchfinding can be made” (AIRS # 20724). See alsoAIRS # 20725.

A second arbitrator found that an argumentthat elimination of a holiday pecking order thatallowed full-time regular volunteers to be workedbefore casuals or part-time flexibles, was notsupported by sufficient evidence. He cited the factthat there was no documentary evidence tosupport a postmaster’s general claim that it wasinefficient to have to accept a full-time volunteerwho must be guaranteed eight hours when there isnot that much work available (AIRS # 20572).

Another arbitrator ruled that the Service hadnot met its burden of proving that a scheduleallowing both fixed and rotating days offconstituted an unreasonable burden. He stressedthat “in the absence of any concrete evidenceindicating substantial loss or efficiency or costcontainment that would be produced by rotatingdays off, we are left with no more than speculationas to the resulting impact of the schedule that hasnever been experienced at this Post office” (AIRS# 21048).

A fourth arbitrator ruled that the PostalService’s evidence in support of its argument thata provision allowing non-choice vacation in certainset percentages was an unreasonable burden“was vague and not specific.” He found that thePostal Service failed to show that not includingextended absences on sick leave, jury duty,military leave and LWOP in arriving at thepercentages had resulted in specific “instanceswhere difficulties were experienced in the past.”He indicated that the Service failed to provideevidence of plan failures, and other than oneexample, failed to provide “specific evidence” ofexcessive overtime attributed to extended sickleave, jury duty, military leave or LWOP (AIRS #20726).

A fifth arbitrator found that the Postal Servicehad not met its burden of proving that a day-to-dayseniority provision that was implemented as aresult of a prior arbitration decision represented anunreasonable burden. He stressed that to make

an unreasonable burden argument sufficient tonullify a proposal that was upheld by a priorarbitrator, the Postal Service must “clearly andconvincingly show that the implementation hascreated such an unreasonable burden.” In thiscase, however, he found that testimony by onemanagement official using a hypothetical exampleto show why this language resulted in a burdenwas “primarily based on supposition” and “little, ifany, quantitative data [was] submitted. ...” Thearbitrator stressed that “it is incumbent upon thePostal Service to show by actual illustrativesituations of why this has caused such anunreasonable burden” (AIRS # 27016).

Another arbitrator ruled that the Service hadnot met its burden of proving that changing thesmaller administrative groupings for vacationusage purposes to larger “occupational groups”represented an unreasonable burden. Though hefound that management’s proposal presented areasonable approach to determining leave usage,the Postal Service had failed to show that existingleave groups created “excessive overtime,operational difficulties or other adverseconsequences” (AIRS # 27697-98).

A seventh arbitrator found that the PostalService failed to provide “any objective evidence”of a burden imposed by an annual leave provisionallowing two employees to be off during the monthof August at a particular facility. The provision,without this section, would only allow oneemployee to be off at any time on annual leave.The arbitrator found that instead of “offeringplausible estimates and analysis based on relatedexisting data and from experience from its otheroperations,” all that the Postal Service presented“is a general observation about the type ofproblem that would result if two Clerks were off onleave simultaneously. ...” He indicated that this“falls short of proof of ‘unreasonable burden’”(AIRS # 28291-92).

Another arbitrator ruled that the PostalService failed to prove that an unreasonableburden existed because of a contract provisionallowing 15% of employees to be off during thechoice vacation period, with a minimum of oneemployee off per section, and the vacationcalendar to remain open until it was filled by theallotted percentage. He found that the provisionshad been in effect for 14 years and the PostalService merely provided “anecdotal” evidencerather than “statistical information” to documentthe additional cost or disruption in getting out the


mail as a result of alleged changed conditions(AIRS # 38602).

A ninth arbitrator determined that a provisionallowing for incidental leave of less than eighthours after consideration of the operational needsof a “given section”, did not constitute anunreasonable burden. The arbitrator found nomerit in management’s argument that requiringincidental leave to be granted without consideringthe needs of service in other sections of theinstallation, could result in plan failures. He reliedon the fact that management hadn’t shown that asingle incident of plan failure was “directlyattributable to the fact that it was compelled togrant incidental AL to one section when workremained in Manual Operations.” The arbitratorfurther concluded that management’s contentionwas “speculative” and though the provision mayhave created an “inconvenience” it did not createan unreasonable burden (AIRS # 37376).

Another arbitrator rejected a managementproposal to change an incidental leave provision torequire that incidental leave on a day-to-day basisbe calculated on the basis of the agreed uponpercentage taking into account the “dailycomplement” within a section. The existingprovision provided for calculation on the basis ofthe employee complement within a section as ofFebruary of every new leave year. Managementmaintained that such language didn’t account fordaily fluctuations in staffing, and providedtestimony relating to insufficient staffing onweekends in the FSM area and on Tour 2 as aresult of the provision. The arbitrator ruled that thePostal Service failed to meet its burden of provingthat the current contract provision resulted in anunreasonable burden since it didn’t offer evidencethat continuation of the existing leave provisionaffected management in other sections on othertours (AIRS # 42673).

An award upheld a pre-existing provision,setting up guarantees once overtime hours arescheduled, a “desire to be bypassed” policy, andpayment to employees on the ODL if they do notremain on the list and their hours are below the listaverage by 10%. The arbitrator rejectedmanagement’s argument that the provision, whichhad been in effect since 1993, resulted in anunreasonable burden. The only evidence insupport of this claim was that flexibility would beaffected if overtime hours were guaranteed whenscheduled and it was difficult to find someone towork since management allegedly had to gothough the entire overtime desired list, not just by

tour, before it could require an employee to workovertime. The arbitrator found that a documentprepared by management merely showed“assumed actions and potential costs, not actualcosts that have been incurred” and therefore doesnot prove that an unreasonable burden existed.He noted also that there was testimony that untilthe impasse arbitration, there had never been agrievance by the union (AIRS # 39064).

Also, another award found that an LMOU thatcontained a consolidated overtime desired listcovering two facilities located 15 miles apart didnot conflict with the National Agreement orconstitute an unreasonable burden tomanagement. The arbitrator determined that thereis nothing in the National Agreement thatprecludes one consolidated overtime desired listbeing shared by two locations. In addition, hedetermined that although this arrangement may beinconvenient for the Postal Service, it has beenworking for many years at these facilities andtherefore the Postal Service did not meet itsburden of proving that the consolidated list createdan unreasonable burden (AIRS # 40182).

An arbitrator concluded that management didnot demonstrate that continuing to grant a parkingspace to the senior clerk in a post officeconstituted an unreasonable burden. Amanagement official testified that retaining thespace resulted in insufficient space for customerparking, drop shipments, a snow plow and currentdelivery vehicles driven by carriers because theyhad become larger. The arbitrator found that hertestimony was unsupported by “empiricalevidence” or “hard facts that any of these issueshave become problematic in the past” (AIRS #40703).

• Grievance activity over pre-existingprovision is not necessarily proof ofunreasonable burden

An arbitrator ruled that three grievances overa provision providing for equalization of PTF hourswere not excessive enough to consider theirimpact as constituting an unreasonable burden(AIRS # 20379).

Another arbitrator rejected management’sargument that numbers of light duty positionsidentified in the LMOU need to be reducedbecause of changed circumstances andgrievances that would result from a suggestion of“employee rights” that do not exist (AIRS # 21928).But, see the same arbitrator’s decision as to items


14 and 18 (overtime and reassignment) where hefinds that pre-existing provisions constitute anunreasonable burden of financial liability, as wellas liability in “increased grievance activity” andadministrative burdens.

An arbitrator upheld a provision that anemployee may request appropriate leave andshould not be disciplined solely because ofrequesting leave during conditions when atraveler’s advisory exists. He rejectedmanagement’s argument that an unreasonableburden existed because employees perceived thisprovision as a method to receive administrativeleave when it was not warranted and would filegrievances. The arbitrator indicated thatmanagement has the right to deny a request foradministrative leave and merely because there aregrievances filed when administrative leave isrejected did not mean that an undue burden wascreated (AIRS # 27191).

• Inconvenience due to administrativechanges does not constitute anunreasonable burden

An arbitrator ruled that retaining a holidayscheduling provision that provided that full-time orpart-time regular employees shall not be requiredto work on a holiday or day designated as such,unless all casuals and part-time flexibles areutilized to the maximum extent possible, even ifthe payment of overtime is required and unless allfull-time and part-time regulars with the neededskills who wish to work on the holiday have beenafforded the opportunity to do so, did notconstitute an unreasonable burden. He held thatthe provision may result in “certain inconveniencesand there was certain evidence presentedconcerning the requirement that at least the seniornon-volunteer regular in each section, on eachday, will not be required to work on a holiday orday designated holiday.” He continued that“certain prior planning and training should obviateany problems created by that type of provision”and “periodic inconveniences do not amount to‘unreasonable burdens’” (AIRS # 23385).

An arbitrator denied a Postal Serviceproposal to delete a provision requiring thattemporary assignments of full-time employees bedone by juniority, according to required skills. TheService asserted that the provision undulyrestricted its flexibility and impaired its efficiency.The arbitrator ruled that though some care mustbe exercised by both regular supervisors and

204Bs to ensure that they are in compliance withcontractual requirements, “it cannot be said thatthe need to be aware of seniority lists or recentassignments creates an undue burden on theseindividuals” (AIRS # 26726).

A third arbitrator rejected the Postal Service’sproposal to replace a multiple overtime desired listprovision that set up five lists and a pecking orderto follow since the existing provision did notrepresent an unreasonable burden. He found thatmanagement contentions, that administration ofthe item was burdensome because during the lastthree years grievances have caused the paymentof $2,709.09 plus 98 1/4 hours of make-upovertime, were not persuasive. He determined thatgrievance settlement costs “can hardly be deemedexcessive” and the provision only resulted in a“minor administrative annoyance, not anunreasonable burden” (AIRS # 32505).

• Flawed survey results cannot support findingof unreasonable burden

An arbitrator ruled that the Postal Service didnot meet its burden of proving that a provisionallowing for wash-up time constituted anunreasonable burden. He found that the Service’sevidence, a wash-up time survey, was “so flawed”in “design, universe, and methods of datacollection” that he could not “in good consciencegive any validity to its results” (AIRS # 21117).

• Failure to prove that provision constituteddirect cause of inefficient operations orincreased costs

An arbitrator ruled that the Service failed toprove the existence of an unreasonable burdendue to leave provisions which did not countemployees on union activities, on military leave, onjury duty, or attending state or nationalconventions as part of the number to be allowedannual leave during choice vacation periods andwhich did not permit management to count knownor scheduled sick leave, LWOP or COP coveringan entire day or week, vacancies created byretirement or termination of employment, courtleave, and suspensions against allowable leaveduring the choice vacation period. The Servicerelied solely on evidence that there was a problemof delayed mail at the facility. The arbitrator heldthat there was “no showing that the annual leaveprovisions in issue have caused or even been amajor contributing factor to the delay in mail ...”


(AIRS # 20561).Another arbitrator held that an incidental

leave provision allowing 15% off did not constitutean unreasonable burden. He held that there was afailure by the Postal Service to establish a “nexusbetween the 15% cap and delayed mail or [use of]overtime” (AIRS # 21365). However, this arbitratorruled that the Service had met its burden of proofwith respect to same day leave requests. Heordered that the LMOU be amended to requirethat “same day leave requests that are notsubmitted within two hours of the employee’sreporting time will not be guaranteed and may beapproved or disapproved based upon operationalneeds.”

“IN CONFLICT” CHALLENGES

A third arbitrator determined that the PostalService did not show that an unreasonable burdenexisted due to a requirement that fractions berounded upward for purposes of computing theguaranteed minimum percentage of employees tobe allowed off on annual leave and the failure torequire that FMLA leave and Dependent Care SickLeave be included in calculations of thatpercentage. He indicated that he saw “noestablished correlation between the Service’sobligation to abide by the terms of ... [these itemsin the LMOU] and “the operational problems theService claims it will experience if it is required toabide by those provisions. ...” (AIRS # 26726).

Before the 2000 Agreement went into effect,one of the Postal Service’s main argumentsagainst carryover or changes in Local Memorandaof Understanding had been that the provisionsinvolved were in conflict and inconsistent with theNational Agreement. Moreover, the Postal Servicehad often declared provisions of a local agreementnull and void, claiming that the provisions were inconflict with the National Agreement. Duringcontract negotiations for the 2000 NationalAgreement, one of the APWU’s main objectiveswas to negotiate protection for locals against suchunilateral action by management. In the nationalcontract arbitration award, APWU succeeded inobtaining significant restrictions on management’sright to challenge locally-negotiated contractlanguage.

Under Article 30 of the National Agreement,local management may challenge local contractlanguage on the grounds that it is inconsistent orin conflict with the National Agreement only bymaking a reasonable claim that the language inthe local agreement is inconsistent or in conflictwith new or amended provisions of the currentNational Agreement. This means that localmanagement may only challenge an existing localprovision on the grounds that it is inconsistent or inconflict with the National Agreement by making areasonable claim that the provision in dispute isinconsistent or in conflict with provisions of the2006 National Agreement that are different fromthe 2000 National Agreement, or with language

that was amended after the 2000 Agreement.Therefore, for example, local management cannotchallenge local wash-up provisions as beinginconsistent or in conflict with the NationalAgreement since there have been no changes inthe wash-up provisions of the National Agreement.Also, management cannot merely claim that anexisting provision is in conflict and inconsistentwith the National Agreement, but must also meetthe higher standard of establishing that its claim isreasonable.

Moreover, these provisions also restrict localmanagement’s opportunity to challenge provisionsof a local agreement on the grounds that thelanguage is inconsistent or in conflict with theNational Agreement to the local implementationperiod. The only exception is when there has beena mid-term change in the National Agreement andin that case, local management may challenge alocal agreement subsequent to the localimplementation period by making a reasonableclaim that the memorandum of understanding isinconsistent or in conflict with the changedprovisions of the National Agreement. Article 30further provides that items management declaresinconsistent or in conflict with the NationalAgreement shall remain in effect until four monthsafter the conclusion of local negotiations, or thedate of an arbitrator’s award dealing withmanagement’s challenge, whichever is sooner (orif there is a mid-term change in the agreement,120 days from the date the union receives writtennotice of a challenge on the grounds that the


language is inconsistent or in conflict).In addition, “if local management refuses to

abide by a local memorandum of understandingon inconsistent or in conflict grounds, and anarbitrator subsequently finds that localmanagement had no reasonable basis for itsclaim, the arbitrator is empowered to issue anappropriate remedy.” Though arbitrators havealways been empowered to award an appropriateremedy, some arbitrators fail to take into accountthe unreasonableness of management’s actionswhen they issue a remedy. Under Article 30, localmanagement cannot simply claim that an item isinconsistent or in conflict, it has the burden ofestablishing that its claim is reasonable. This setsup a higher standard that management must meet.According to Black’s Law Dictionary, SeventhEdition (1999), reasonable means “fair, proper ormoderate under the circumstances.” In addition,Webster’s Third New International Dictionary(1986) defines reasonable as “having the faculty ofreason: RATIONAL” and “possessing good soundjudgment: well balanced: SENSIBLE.” Thus, iflocal management refuses to abide by a disputedlocal provision (after the four-month periodfollowing local negotiations or a mid-term changein the National Agreement), and fails to meet itsburden of showing that its claim of inconsistency iswell-founded, under Article 30, an appropriateremedy should be granted.

Inconsistency Challenge Is Limited

As a result of these changes in Article 30, thePostal Service may no longer rely on ArbitratorMittenthal’s national level decision in #H1C-NA-C25 (AIRS # 3857, August 1984). In that decision,the arbitrator denied the national union’s grievancein which the APWU contended that the PostalService could not challenge any provisionpreviously agreed to in local negotiations, unless achange in the National Agreement placed the pre-existing local agreement in conflict. Mittenthaldisagreed and held that the Postal Service couldcontinue to challenge local provisions in conflictwith the National Agreement. Given the currentlanguage of the National Agreement, arbitratorsmay no longer rely on this decision to find that theService has the right to unilaterally cease abidingby LMOU provisions that it declares to beinconsistent and in conflict and that requestedmonetary remedies do not have to be consideredbecause of such actions. An award in AIRS #35563, in which a local union filed grievances due

to the Postal Service’s unilateral decision to notcomply with LMOU wash-up provisions and soughtremedies to make the grievants whole, would bedecided differently under the 2006 NationalAgreement. In addition, in another decision inAIRS # 39103 an arbitrator rejectedmanagement’s argument to delete an existingLMOU’s provision requiring that full and part-timeregular volunteers be scheduled to work a holidayahead of casual and part-time flexible employeeson the basis that the provision was inconsistentand in conflict with Article 11.6 of the NationalAgreement. The arbitrator ruled that since therewas no showing that Article 11.6 had beenamended subsequent to the effective date of theprevious agreement, Article 30.C “precludes thePostal Service from arguing that the Item 13language, which has been included in the LMOUbetween the Parties for more than ten (10) years,is inconsistent or in conflict with the NationalAgreement.

Opposing “In Conflict” Challenges

If the Postal Service makes a reasonableclaim that a local union’s proposal for a change inexisting language of its LMOU is inconsistent or inconflict with the 2006 National Agreement or anexisting provision in an LMOU is inconsistent or inconflict with language of the 2006 NationalAgreement that is different from the 2000Agreement, an impasse arbitrator may determinethat the proposal or existing provision isn’t valid. Inorder to prepare for such challenges, severalfactors should be considered:

1) The wording of the proposal or provision. Canit be read so that it corresponds withlanguage in the 2006 National Agreement?

2) The application of the proposal or provision.In situations where the proposal or provisionmight apply, can it be applied withoutconflicting with a provision of the 2006National Agreement? The more flexibleprovisions (i.e., normally, where practicable,etc.) survive this test much better thanprovisions that would not allow any deviation.In situations where the provision is beingcarried over from a previous LMOU it isimportant to show how past application wasconsistent with relevant provisions of theNational Agreement and such provisionshave not changed in the 2006 NationalAgreement.


3) The documentation to support a proposal orprovision. This would include the pastpractices of the parties, among other things.

4) The particular provision of the NationalAgreement that allegedly is inconsistent witha pre-existing provision of the LMOU. HasNational Agreement language actually beenchanged since 2000 and does it amount to asubstantive change that would influence anarbitrator to delete the current LMOUlanguage?

When “trade offs” are made duringnegotiations, these “trade offs” should bedocumented so that the USPS does not comeback and argue that the agreed-upon provision isinconsistent or in conflict with the NationalAgreement. If the agreed-to provision is foundinconsistent or in conflict during an interestarbitration, it will be lost and the provision that wastraded off may also be lost. By documenting trade-offs, however, you may persuade an arbitrator torule in your favor.

Also, it is clear that the mere fact that aproposal for “day-to-day seniority” or “wash-up” ora provision concerning these items in a particularLMOU may be found to be in conflict duringimpasse arbitration does not mean that similarproposals or provisions in another LMOU will bechallenged and subsequently overturned. Forexample, Arbitrator Garrett declared a “day-to-dayseniority” provision in conflict in AIRS # 145 and812 but upheld a provision calling for normalmovement by seniority in AIRS # 124.

Management Rights Argument

The Postal Service must point to a specificprovision of the National Agreement which isviolated or contravened by a proposal or a localmemorandum provision to establish that theprovision is in conflict or inconsistent with the 2006National Agreement. However, the Postal Servicewill not be successful in arguing that provisions oflocal memoranda are in conflict or inconsistentwith the 2006 National Agreement merely becausethey restrict management’s discretion incontravention of Article 3 of the NationalAgreement. Several national level cases reject thisposition.

In a national level award (USPS Case Nos.H1C-NA-C 59 and 61; AIRS # 6931), ArbitratorMittenthal overruled the USPS position that LMOU

clauses (giving employees a right to “incidentalleave”) were “inconsistent or in conflict with ...”Article 3 because they encroached upon theUSPS’s “exclusive right” to “maintain the efficiencyof the operations entrusted to it.” The USPSasserted that these LMOU clauses underminedefficiency by requiring management to grantcertain leave requests, which in terms of certaincost/ productivity factors, might have been denied.Mittenthal, ruling against this USPS position,stressed that “Article 3 rights are not absolute” and“are subject to the provisions of this [National]Agreement...”, in this case, the terms of Article 10,Sections 3 and 4 and Article 30.B.4. contemplatethat local parties shall negotiate LMOU clausesregarding “formulation of [a] local leave program.”Mittenthal concluded that “when the local partiesdo what they are expressly authorized to do theresultant LMOU clauses can hardly be said to beinconsistent or in conflict with ...” Article 3.

In another national award (USPS Case Nos.H8N-5L-C 10418 or N8-W-0406; AIRS # 22),Arbitrator Mittenthal rejected the USPS contentionthat a clause limiting relabeling work to particularemployees was a violation of the managementrights provision. The arbitrator emphasized thatthe exclusive right granted by Article 3 did notprevent management from contracting with thelocal union to limit assignment of particular work toparticular employees. He reasoned thatmanagement’s argument assumed that it had no“right” to agree to the clause. However, “[o]ne whoholds an exclusive right’ has a wide variety ofoptions,” according to the arbitrator. Its decision toagree to such a clause “was simply one of theoptions available to it” and therefore “it can hardlybe considered ‘inconsistent or in conflict with’Article III rights,” Mittenthal said.

Outside Scope of 22 Items

The Postal Service might assert that anyprovision which is not within the scope of thetwenty-two (22) items listed in Article 30 is inconflict or inconsistent with the NationalAgreement. However, the national arbitrationaward by Arbitrator Mittenthal in USPS Case No.H8N-5L-C 10418 or N8-W-0406 (AIRS # 22)establishes that provisions are not in conflict orinconsistent with the National Agreement merelybecause they are outside the scope of the 22mandatory subjects of bargaining listed in Article30. Accordingly locals should feel free to bargainfor any appropriate provision, bearing in mind that:


(1) If it is not within the scope of the twenty-two(22) items listed in Article 30, the union mayseek agreement but the Postal Service mayrefuse to bargain about it; and

(2) No provision which violates the 2006 NationalAgreement will be upheld regardless ofwhether it is included on the list of twenty-two(22) items.

Res Judicata

In the past, the Postal Service challengedpre-existing provisions on the ground ofinconsistency even though they had been upheldin prior arbitration decisions. Although the currentlanguage of Article 30 limits the Postal Service tochallenging pre-existing provisions that areinconsistent with new or amended provisions ofthe 2006 National Agreement and should prevent

continuous challenges to the same provision,there could be instances in which an arbitrationaward is issued in impasse proceedings on a pre-existing condition and the same matter is thesubject of rights arbitration on the issue ofenforceability of the existing provision. Also, therecould be occasions when management claims asecond time that a pre-existing provisionconstitutes an unreasonable burden after thisissue has been decided in prior impasseproceedings. Two regional arbitrators have ruledthat the Postal Service was barred fromchallenging provisions on the basis ofinconsistency because they were upheld by a priorarbitration award (AIRS # 27016 and 33803). Thearbitrators reasoned that the legal principle of resjudicata applied in these cases to make the priorrulings binding because they involved identicallanguage, parties, the same postal facilities, andthe same facts and claims as the current cases.

IMPASSE EVALUATION

There are a number of very broad questionsthat a local must examine in deciding whether ornot to impasse a particular proposal or item. It isimportant that a careful decision be made to avoidthe uncertainties and the delay caused by anextended impasse dispute.

It is particularly important to make a gooddecision if management has offered acounterproposal that represents someimprovement if not everything you want.

Can The Dispute Be Impassed?

There are four categories of items that canbe impassed.

1) Union proposals attempting to establish orchange anything with respect to the twenty-two (22) items listed in Article 30.

2) Any LMOU item within the list of twenty-two(22) which management refuses to carry-overwithout change claiming it is in conflict or

IMPASSES

inconsistent with new or amended provisionsof the 2006 National Agreement.

3) Any presently effective LMOU items withinthe twenty-two (22) items which the PostalService asserts to be an unreasonableburden to the USPS. (Note that the PostalService cannot impasse an item outsidethe twenty-two (22) items. See ArbitratorMittenthal’s award in USPS Case No. HOC-NA-C 3, AIRS # 21683).

4) Any LMOU provision outside of the 22 itemswhich management refuses to carry-over onthe grounds that it is in conflict or inconsistentwith the new or amended provisions of the2006 National Agreement.

There is also one broad category ofproposals that cannot be sent through the impasseprocedure.

• New proposals (not carry-over items) orsections of new proposals that go beyondthe scope of the twenty-two (22) items listedin Article 30.

Locals should recall that the twenty-two (22)


items listed in Article 30 are mandatory subjects ofbargaining and can be impassed. Items that gobeyond the twenty-two (22) and are now in thecurrent LMOUs can be carried over and remain ineffect during the term of the 2006 Agreement. Anyother item may be negotiated but requires thatboth parties are willing to negotiate and ultimatelyreach agreement.

If management or the union is unwilling tonegotiate on items beyond the twenty-two (22)listed in Article 30, or if at the conclusion ofnegotiations a mutual agreement has not beenreached, the process comes to an end. Thoseitems beyond the scope of the twenty-two (22)listed in Article 30 cannot be impassed (See AIRS# 22).

However, what is truly beyond the scope ofthe 22 items may become a dispute that can besent to Impasse. Regarding a union proposal theunion will argue that the scope of each negotiableitem is broad. Management can be expected toargue for a very narrow reading of the 22 items.The reverse may be true regarding a USPSproposal.

Can You Persuade An Arbitrator?

If you were to take a specific proposal toarbitration what would the likely outcome be? Theparticular type of arbitration involving impasses iscalled “interest” arbitration. The arbitratorconsiders the interest of both parties in the rulesthat will be set into the contract. This isdistinguished from “rights” arbitration. In a “rights”arbitration the arbitrator looks at the rules alreadyset into the contract to determine whether therules have been violated. When consideringvarious impasses, arbitrators will be askingthemselves a key question: “What agreementshould the parties have reached had negotiationsbeen successful and not reached an impasse?”Obviously, this question is not easily answered,since the parties did reach an impasse. But it isnot impossible to objectively determine what thelikely outcome of successful negotiations shouldhave been. There are a number of things anarbitrator will look at carefully.

1. Previous LMOU

The most important thing the arbitrator willlook at is the previous LMOU. The previousagreement represents a successfully bargainedagreement between the parties (either through

voluntary negotiations or previous impassearbitration). An arbitrator is likely to assume thatthe parties would have reached a similaragreement in this set of negotiations unless strongreasons exist for changing the old language. Thistranslates into a very heavy burden for the partythat desires to change the status quo.

If the union desires to change the status quo,the union must be prepared to show:

A) A need for a change - That meansproving that the current provision is notworking, causing hardship or denyingdesirable benefits to deservingemployees.

B) Cost and benefits of the proposedchange - Simply showing that theprevious language does not work verywell is not enough. The union must showthat the union’s proposal will work better.

The mere fact that it may cost the PostalService more will not cause an arbitrator to rejecta proposal out-of-hand. But, it will require that youshow counterbalancing benefits. The benefits andcosts can be incurred by either the employee oremployer. You should make a list of the benefitsand costs to both employee and employer.

An arbitrator does not take new contractlanguage lightly. The arbitrator will want to know allof the potential ramifications of the new language.

2. Consistency with a Negotiation Pattern

It may not always be possible to show apattern. However, if a pattern does exist it willusually prove to be most persuasive. For example,if in the 1990 LMOU you had two minutes of wash-up time, in the 1994 LMOU you went to threeminutes, in the 1998 LMOU you went to fourminutes and in the 2000 LMOU to five minutes, ineach case arguing that complaints, grievancesand denials of requests for reasonable wash-uptime demonstrated that the previous amount oftime was insufficient, you could now argue beforethe arbitrator that a pattern has been set. Thepattern is as follows:

When the parties have found that theprevious set minutes of wash-up time have notadequately met the need, they have increased theset amount of wash-up time. Thus, if the unionshowed the inadequacy of the current LMOU’swash-up time, the arbitrator would have to assumethat the parties would have again increased the


set amount of wash-up time. The arbitrator wouldfollow the pattern set by the parties when theysuccessfully negotiated agreements in the past.

While less persuasive, patterns can also beshown by looking at other LMOUs and looking atwhat other unions have achieved in collectivebargaining.

3. Consistency with the LMOU and the NationalAgreement

An arbitrator will be reluctant to write contractlanguage that will cause disputes, that will clashwith other items in the local memo, or that willclash with the National Agreement.

Even without considering the mandate thatlocal agreements have to be consistent with theNational Agreement, an arbitrator will not assumethat the local parties would have reached anagreement that clashed with the NationalAgreement. An arbitrator will also not assume thatthe local parties would have agreed to a provisionthat would lead to further disputes.

4. Other LMOUs and Contracts

Besides looking at the previous agreement todetermine what settlement the parties should havereached, an arbitrator will also look at otherLMOUs as well as other contracts from otherunions. However, the weight given to those othercontracts will vary greatly depending on howrelevant they are to the particular proposal.

For example, the existence of LMOUprovisions and practices in other offices have notbeen given any weight by some arbitratorsdeciding impasses concerning wash-up periods.There is great potential for variances in the needfor wash-up periods from section to section andfrom craft to craft. What one installation doesconcerning wash-up may bear little similarity to theneed for wash-up in another facility.

By contrast, an arbitrator would probably bemost interested in knowing how other installationsdeal with the problem of working in an excessivelycold environment due to breakdown of a boiler orheating unit. If another facility successfullynegotiated a provision dealing with such instancesand the provision has worked well, an arbitratormay conclude that your facility (experiencingsimilar problems and not having a successfulmethod for dealing with those problems) shouldhave reached an agreement similar to the onereached in the other installation.

5. The National Agreement

An arbitrator will try to determine if anylanguage in the National Agreement points in thedirection of a preferred contract provision.Impasse arbitrators may look at all the potentialramifications and potential applications of theparticular proposal to determine if any of thepotential applications might conflict with languagein the National Agreement. If the potential exists,an arbitrator will be reluctant to grant the proposal.Thus some things that other locals have achievedthrough successful negotiations may not beachieved through impasse arbitration.

Will You Get A Chance At Arbitration?

One essential point should always be kept inmind - this process is one of local negotiations.The process is intended to result in an agreementto accommodate local conditions and local needs.Your unique set of circumstances shoulddetermine your unique local agreement. Before animpasse ever gets to arbitration, it must first beappealed to the regional level. The impassed itemwill be discussed by a Business Agent and/ or theRegional Coordinator with regional management.If the Business Agent does not know what localconditions are causing you problems, what uniquelocal circumstances justify a particular provision,the Business Agent may attempt to get theprovision he/she feels is best. The BusinessAgent’s opinion of what the “ideal” LMOU provisionshould be may not have relevance to your uniquelocal circumstances.

The Business Agent and the RegionalCoordinator have the authority to settle impassesbefore they go to arbitration. What the BusinessAgent considers an acceptable provision may notbe what you want. The only way to avoid anundesirable settlement to your impasses is toprovide the Business Agent with all of thejustifications for your proposal. If there areacceptable alternatives the Business Agent willneed to know them. Business Agents can do amuch better job if the local provides them with thenecessary ammunition. However, if the first timeyou communicate with your Business Agentconcerning your local negotiation problems iswhen you send your appeal to the region, you mayhave already lost the best opportunity to use thetalents of your Business Agent. During localnegotiations a Business Agent may be able to givevaluable advice, assist in compiling documentation


and suggest alternatives you may not haveconsidered. Then if you have to send your appealto the region the Business Agent will have first-hand knowledge of your problems and goals.

By carefully considering all of the factorslisted make an informed judgment concerningwhether or not an impasse ought to be sentthrough the impasse procedure and ultimately toarbitration.

IMPASSE INSTRUCTIONS

INSTRUCTIONS FOR FILING LMOUIMPASSES UNDER THE 2006NATIONAL AGREEMENT

Under Section 2 of the Memorandum ofUnderstanding following National AgreementArticle 30, the parties are required to jointly identifythe issue(s) in writing and submit initialed copiesof all proposals and counterproposals pertaining tothe issue(s) in dispute. The initialed copies of theproposals and counterproposals must be sent nolater than June 15, 2007 to:

a. Appropriate Management Official, Grievance-Arbitration Processing Center

b. Local Postmaster, and

c. APWU Regional Coordinator

Timeliness and Arbitrability ofImpasses

Note that timely appeals, complete with theinformation prescribed on the form, are importantsince arbitrators have refused to consider themerits of impasses that have not complied withrequirements of the Memorandum ofUnderstanding on Local Implementation (SeeAIRS # 27101-02, 26955, 33160 and 39579 inwhich failures to comply with the MOU on LocalImplementation resulted in findings that theappeals were not arbitrable). However, see AIRS #33670 in which an arbitrator found that an impasseappeal was arbitrable. The arbitrator rejected thePostal Service’s contentions of inarbitrability basedon the union’s alleged failure to submit timelynotification of its intent to invoke the localimplementation process, to engage in meaningfulnegotiations since they were conducted by mail

instead of in face-to-face meetings, and to notcomplete the negotiations during the mandatedtime period. He indicated that those items thatwere not agreed to before the April 15, 1999deadline were properly before him for a decisionon the merits. See also AIRS # 32464 in which anarbitrator found that an appeal was arbitrable,rejecting a USPS argument of inarbitrability basedon the union’s alleged failure to open negotiationsand because the union also filed rights grievancesover issues in dispute under Article 30. (However,see AIRS # 39579 and 39955 which foundimpasses inarbitrable based on either the PostalService’s or union’s failure to provide timely writtennotice to open negotiations.)

In addition, in AIRS # 32242 an arbitratorrejected the Postal Service’s argument that anappeal was inarbitrable on the basis that the unioncited the wrong item in its appeal. The arbitratorrelied on the fact that the evidence showed thatthere was no confusion by management over whatitem was actually being appealed. Anotherarbitrator in AIRS # 41921 ruled that the PostalService’s counter-proposal, that all LMOUs shouldonly contain language provided in Article 8,Section 9 relating to wash-up, could not beconsidered as an issue being impassed since ithad not been identified by management as anissue to be adjusted in arbitration. Moreover, seeAIRS # 39832 in which an arbitrator found no meritin the Postal Service’s arguments that an impassecase was inarbitrable due to the union’s allegedfailure to provide timely written notice of its intentto open negotiations, its alleged failure to obtain amanagement official’s initials on an area appealform before submitting the form to the grievance-arbitration processing center, and its allegedfailure to conduct negotiations with management.

In AIRS # 39540, an arbitrator rejectedmanagement’s argument that the union could notput forward a separate proposal during localnegotiations, which the Postal Service hadopened, on the basis that the union had notprovided independent notification that it alsodesired to engage in the local negotiationsprocess. The arbitrator found that when one partyopens the door to negotiations, both parties areallowed to present proposals providing theproposals were exchanged within the first 21 daysof the 30 consecutive-day local implementationperiod. In this case also, he found that the PostalService waived any argument that the union hadnot submitted its own proposal during the first 21days by agreeing to negotiate on both the union


and management’s other proposals. Finally, inAIRS # 41134, an arbitrator ruled that the PostalService waived its argument that a case wasinarbitrable on the basis that a union failed toexchange a proposal within the first 21 days of alocal implementation period. He noted thatmanagement was a party to the jointly executedappeal form that indicated that the proposal waspresented eight days prior to the end of the 21-daylimitation period.

Union Appeals

To assist in complying with the aboverequirements, we have devised the attached AreaAppeal Form, which should be filled out in amanner similar to that shown below.

1) Each impasse item must be identified andappealed separately, using the attached form.

2) Either type the proposal(s) andcounterproposal(s) in dispute on the form,OR attach a copy of the proposal(s) andcounterproposal(s) to the back of the form. Ifattached, in Items 3, 4 and 5, merely type,“See attached proposal(s)/ language/counter-proposal(s).”

3) Make sure that each proposal andcounterproposal contains the exact languageproposed and, if possible, the date that theproposal/counter-proposal was offered. Besure to clearly identify the union’s andmanagement’s final proposals.

4) In appealing carry-over items which cannotbe identified with one of the 22 negotiableitems, under Item 1, insert N/A (notapplicable) and state on line 2, “Carry-overlanguage deemed by the postmaster to beinconsistent and/or in conflict with theNational Agreement.”

Each carry-over item should be appealed ona separate appeal form unless it deals withthe same subject matter.

5. We recommend that each impasse be sentby certified mail to the appropriatemanagement official at the grievance-arbitration processing center (the locationwhere you currently send Step 3 appeals). Ifmore than one impasse is submitted under

one certification number, make sure that youkeep a record of each impasse sent underthe certification number. A check-off list of thecontents should accompany your appeals tothe Area, with a copy thereof retained at thelocal level.

6. Make sure that the local’s negotiator andmanagement’s chief negotiator initial theimpasse form. This is a contractualrequirement. Failure to obtain the initials mayprovide the Postal Service with an excuse tochallenge the validity of the appeal. Ifmanagement refuses to initial, please so noteon the Area Appeal Form. The local’snegotiator will also be asked to initial USPSprepared forms on any issue USPS isappealing.

The above information is all that the local isrequired to send to the appropriate managementofficial at the grievance-arbitration processingcenter and the postmaster. However, in addition tothe above information (which must also besubmitted to the Regional Coordinator) wesuggest that you send the Regional Coordinator acopy of your current LMOU.

Management Appeals

When the USPS invokes the impasseprocedures, they should approach the local torequest a joint identification of the issues theUSPS wishes to impasse. The USPS may alsorequest that certain documents be initialed. At thispoint you should obtain a copy of the USPSappeal.

You should add to the USPS appeal packageyour comments and proofs concerning:

1) The unreasonable burden test, and

2) The specific USPS proposals.

And then send the complete package to yourAPWU Regional Coordinator.


USE SEPARATE SHEET FOREACH ITEM

CERTIFIED NO.DATE:

AREA APPEAL FORM – 2006 AGREEMENT LMOU IMPASSES

Grievance/ArbitrationProcessing Center

Union Local:Address:Installation:

1. IN DISPUTE: ARTICLE 30, B. LMOU ARTICLE NO.

2. TITLE:

3. LANGUAGE IN CURRENT LMOU (Exact language, if any, from old Memo)

4. *UNION PROPOSAL(S) (Exact language and date proposed to management)

5. *MANAGEMENT COUNTERPROPOSAL(S) (Exact language and dated proposed to Union)

6. UNION FINAL PROPOSAL:

7. MANAGEMENT FINAL PROPOSAL:

Union Rep.Union Rep. Initials

Mgmt. Rep.Mgmt. Rep. Initials

*Note: If there have been more than one proposal and counterproposal, list those proposals and counterproposals and the specificdates of each, and attach (in date order) to this sheet. Be sure you identify the Union’s and Management’s Final Proposals. MUSTBE POSTMARKED BY June 15, 2007.

(**This form is subject to revision)cc: Local Postmaster

APWU Coordinator

AREA APPEAL FORM – 2006 AGREEMENT IMPASSES


Negotiations at the local level will occur for a30 consecutive day period between April 2, 2007and May 31, 2007. Negotiations can encompassany and all of the twenty-two (22) items in Article30. In addition, any other subject may benegotiated if both parties are willing. But, unless itis one of the twenty-two (22) items it may notproceed through the impasse procedures (AIRS #22). Any Local Memorandum of Understandingreached may not be inconsistent with or vary theterms of the 2006 National Agreement.

References to AIRS (Arbitration InformationRetrieval System) Case Numbers will allow localsto access the awards on APWU Search or requestparticular arbitration awards that may be importantto their local negotiation situation.

Requests can be directed to the RegionalCoordinator, your NBA, or to:

Greg BellDirector, Industrial RelationsAmerican Postal Workers Union,

AFL-CIO1300 L Street, N.W.Washington, D.C. 20005(202) 842-4273

Regardless of whether the APWU agreeswith certain arbitration awards, we have tried toaccurately reflect the issues that have beenarbitrated and views of arbitrators concerningthose issues in the following pages on the 22items. Note that in some of these awards,arbitrators did not uphold pre-existing provisions inLMOUs on the basis that they were inconsistentand in conflict with the National Agreement andthese decisions were not limited to provisions ofthe contract in effect at the time the localnegotiations occurred. However, due to changedlanguage in Article 30, pre-existing provisionscannot be challenged except when the provisionsare in conflict and inconsistent with language thathas changed in the 2006 National Agreement orwith changes that have occurred after the time the2000 Agreement went into effect. As a result,some of the awards on pre-existing provisionswould be reasoned differently if they were decidedunder the 2006 National Agreement. They havebeen included in this issue because any new

provisions or changes in pre-existing languagethat are being negotiated may be subject to thearguments that were raised in these cases.

The twenty-two (22) items, with somesuggested areas of negotiation, are listed on thefollowing pages.

1. Wash-Up

Additional or Longer Wash-Up Periods

The National Agreement Article 8, Section 9,requires management to provide reasonablewash-up time to those employees who performdirty work or work with toxic materials. Localnegotiations should explore the possibility ofadditional wash-up time to individuals, particularjob categories, crafts or work locations, as well as“across the board” wash-up time to everyonewhere it can be justified.

However, locals should be prepared forPostal Service arguments that proposed wash-upprovisions are inconsistent and in conflict with theNational Agreement. If a pre-existing wash-upprovision is carried over, management does nothave the right to argue that such an item isinconsistent or in conflict with the NationalAgreement since Article 8.9 has not been changedin the 2006 National Agreement. But if a localdecides to make a change in pre-existinglanguage and it is submitted to impassearbitration, keep in mind that the Postal Servicemay argue that the changed language isinconsistent with longstanding provisions of theNational Agreement.

Factors to Support Additional Wash-Up

In order to successfully negotiate a wash-upperiod, the local will have to show that thestandards of Article 8, Section 9 are met.

Specifically, the local will have todemonstrate that the employees for whom wash-up time is sought perform dirty work or work withtoxic material. This showing depends on thenature of the work, such as types of machineryand materials handled. For instance, it would bereasonable to negotiate longer wash-up formaintenance and motor vehicle employees who

ARTICLE 30 NEGOTIATION ITEMS


work in dirt or grease, or for clerks that work in anewspaper section. A separate demonstration,therefore, should be made for each craft andperhaps even sections or units within each craft. Inaddition, several other factors that should be takeninto consideration to support a provision foradditional wash-up include:

a. The location of washrooms in relation to thework areas;

b. The degree of congestion that might occur inthe washroom at lunch time or at the end of atour; and very importantly

c. Any changes in any of the above during thelife of the current Local Memo which nowwould justify more time than what might havebeen needed, and

d. Any grievances filed or complaints madeabout insufficient wash-up time or denial ofwash-up time.

Also, local negotiations may explore the timeat which wash-up is provided such as before lunchor end of tour.

One arbitrator has set out items that need tobe considered in determining the reasonablenessof wash-up periods including “(a) the processrequired of employees who take wash-up time, (b)the nature of the employees’ wash-up activity, (c)the relationship between the employees’ worklocations and the wash-up facilities, (d) theavailability of workable wash-up facilities, (e) thenumber of employees who will use those facilitiesduring a specific period of time, (f) the nature ofthe wash-up needed, as determined by the natureof the employees’ work and (g) the nature of thepost wash-up activity” (AIRS # 33153).

Inconsistent and In Conflict

In requesting additional or longer wash-uptime, locals need to be prepared for Servicearguments that the scope of the NationalAgreement was not intended to be broadenedbeyond granting reasonable wash-up foremployees subjected to dirty or toxic conditions.Though arbitrators have reached varyingconclusions on this issue, an arbitration award hasemphasized that there has been no definitiveinterpretation of Article 8.9 on a national level thatprohibits LMOU provisions for a fixed wash-up

period. Therefore, a claim of inconsistency mustbe assessed on the basis of record proof (14655).Also, arbitrators have found that by listing“additional” or “longer wash-up periods” as an itemfor local negotiation in Article 30, it was clear thatnegotiators did not intend that wash-up providedby Article 8.9 would be limited and could notextend to all employees (AIRS # 13483, 22498,22499, 21117, 28749-50, 27060). In addition, anarbitrator has rejected the position that fixed wash-up periods are “per se, inconsistent and in conflictwith the National Agreement” on the basis ofnational postal management’s two decadeacquiescence to the existence of local memorandaproviding fixed wash-up periods as well as anational level arbitrator’s recognition in AIRS #27077 that there is no “bar [to] a specific group ofemployees within a class or a job description frombeing granted wash-up time on a routine basis”(See AIRS No. 33153).

It should be noted that a 2004 national-levelaward in the letter carrier craft concerning fixedwash-up under Article 30 determined that “Section8.9 and 30.B.1 prohibit negotiation of LMOUprovisions that provide wash-up time to allemployees without consideration of whether theyperform dirty work or are exposed to toxicmaterials.” Significantly, the APWU was not aparty in that case and didn’t participate in theproceedings. Therefore, the award isn’t binding inAPWU regional arbitration proceedings.Moreover, Arbitrator Nolan’s primary reliance onNALC regional arbitration awards, and theabsence of the APWU as a party would argueagainst giving any weight to the decision as itrelates to APWU bargaining unit employees or theAPWU contract. Though Nolan indicated thatthere was “near-consensus among the [NALC’sand USPS’s regional] arbitrators” on therelationship between Article 8.9 and Article 30.B.1that takes the Postal Service’s position, he reliedon the fact that there was “an overwhelmingmajority of NALC regional arbitrators holding thatlocally negotiated fixed and general wash-up timeproposals are inconsistent with Article 8.9. …”Arbitrator Nolan found that most of the casessubmitted in support of NALC’s position involvedthe APWU, and many of those were decided afterthe NALC and APWU had separate contracts. Hefurther acknowledged that awards “interpretingeven identical language from another contractcarry less weight than decisions interpreting thesame contract, because the meanings of thewords often change in different contexts or


different bargaining relationships.” Also, sinceArbitrator Nolan specified that “[l]ocal partiesremain free to define the employees who satisfythese conditions [i.e., performance of dirty work orexposure to toxic materials],” the union can stressthat all of the employees covered by a fixed wash-up proposal perform dirty work or are exposed totoxic materials (See Case Nos. B98N-4B-I-01029365 and 29288; 7/25/2004).

Wash-up for All Employees

There is a split of opinion by regionalarbitrators on the provision of fixed wash-up for allemployees. Many arbitrators have resistedgranting required wash-up time for all employeesbecause of the restrictions in Article 8, Section 9(AIRS # 4596, 6479, 6606, 6774, 6913, 6995,20540,20764, 20761, 26898, 32538, 32848 and32869 ). Provisions granting all employees awash-up time of 3, 5 or 10 minutes have beenrejected in a number of arbitrations (AIRS # 4913,4944, 5281, 5287, 6001, 6088, 6089, 6124,20764, 21111, 27068-69, 27061, 26690-91,33379). In addition, an effort to allow reasonablewash-up time for all employees was not acceptedby one arbitrator (AIRS # 6520).

On the other hand, one arbitrator ruled thatlocal parties are permitted to fix wash-up periodsin whatever amounts the parties agree to (AIRS #27944). In addition, another arbitration awardupheld fixed wash-up periods ranging from ten tofifteen minutes before lunch and twelve to fifteenminutes at the end of a tour for all APWU-represented crafts in the Manhattan and Bronx,N.Y. Post Offices (AIRS # 33153). In that case, thearbitrator relied in part on the fact that the commondictionary definition of “period” for purposes Article30.B.1 is “an event of fixed duration” and adefinition in the dictionary of industrial relationsdefines “clean up period” as “that part of a workday before meals or at the end of the work shiftallowed the employee to clean his person orclothing....” The arbitrator also indicated that thelanguage “performs dirty work” and “works withtoxic material” in Article 8.9 “does not contain anyqualifying or limiting language on its generaleligibility tests.” He thus rejected the Service’sargument that an employee’s eligibility for wash-uprequires a determination of whether or not theemployee actually becomes dirty from “dirty work”,performs such dirty work regularly or predictably,or performs such work immediately before beinggranted wash-up time. Also, note that in a national

level award, Arbitrator Snow said that the terms“performs dirty work” and “works with toxicmaterial” “are open-ended terms” that “are subjectto local definition and elaboration” and “[t]hecontent of the terms may change as newconditions arise requiring wash-up time ormodified administrative regulations andmanagerial instructions authorize certain actions”(AIRS # 27077).

In addition, an arbitrator ruled that the PostalService could not meet its burden of proving theexistence of an unreasonable burden bycontinuation of a wash-up period of five minutesprior to lunch and five minutes prior to ending of atour for all employees and ten minutes beforelunch and before ending a tour for maintenanceemployees. She found that merely establishing thecost of total wash-up for all employees as well asthe amount of nonproductive wash-up did notsatisfy its burden of proof (AIRS # 22498, 22499).Another arbitrator upheld continuation of a wash-up period of two minutes before lunch for all clerksand maintenance employees on the basis that thePostal Service failed to show that they did notperform dirty and toxic work (AIRS # 27944).

Since the anthrax exposure incidents in late2001, there have been two arbitration awards thathave relied at least on part on the need for fixedwash-up to protect against such potential hazards.In AIRS # 38883, the local union sought a fiveminute wash-up period every two hours “for allemployees that perform any duties that causethem to have hands on and/or any involvementwith any type of work at any postal facility or anyduties involving postal procedures.” The unionrelied on a directive from Postal HeadquartersVice Presidents to field offices containing amandatory safety talk on hand protection whichsaid “wear your gloves, and wash your hands withsoap and water every two hours during your tour,and other times as appropriate.” The arbitratorobserved that “[t]he … memo and instructions ofthe two senior Postal Service [officials] clearlyenunciates the recognized safety problems facedby postal workers in the post 9/11 era.” He foundalso that the Postal Service failed to provide “validproofs” to support its position that providing a fiveminute wash-up every two hours would have aserious impact on the operations and distributionof the mail.

In AIRS # 39691, an arbitrator upheld aunion’s request to change its LMOU to provideemployees performing any dirty work, includingwork with trays, letters or mail handling equipment,


or work with toxic materials a five minute period ofwash up before lunch and before leaving thefacility. He noted that the “Union has appropriatelyobserved, ‘Anthrax and the threat of biohazard arenow a fact of life in the Postal Service’ and “[i]nthat regard every employee on the workroom floorshould be required to wash their hands not just fortheir own safety but for the safety of the fellowemployees.” The arbitrator found also that giventhe nature of the facility and number of employeesassigned to it and the distance each employee hasto travel to sinks, the time clock and the cafeteria afive minute time period for wash-up before lunchand departure from the facility is not excessive.

Even taking into account the anthraxexposure incidents, several arbitrators havedenied requests for fixed wash-up for allemployees. The APWU’s proposals covering 20associate offices in Harrisburg, Pa., to provide thatall APWU employees be granted reasonable timeto wash-up before lunch, at end of tour and atleast every two hours or to include additionallanguage where five-minute wash-up timecurrently existed to provide for such time at leastevery two hours, were rejected by an arbitrator inAIRS # 41921. He found that evidence regarding2001 management directives covering CapitalMetro operations and the Harrisburg PerformanceCluster in the aftermath of anthrax exposure,which provided that employees be encouraged towear masks and gloves and wash their hands withsoap and water every two hours, were not bindingon other facilities. The arbitrator further reasonedthat though employees may be at risk frombiological agents like anthrax being shippedthrough the mails, they have the right to take asmuch time to wash their hands if they believe theyhave come into contact with a toxic substance.Moreover, he indicated that the issue of allowingfor wash-up every two hours should be decided ona national basis, not on an installation byinstallation basis through regional arbitration.

In another award in AIRS # 40576, anarbitrator rejected a local union’s request that allemployees be granted five minutes of wash-uptime every two hours. He was unpersuaded bythe union’s argument that additional wash-up timewas mandated because of health and safetyconcerns due to the increased presence ofcontaminants in the mail stream. The arbitratordetermined that the union had failed to show that afive minute wash-up period was warranted for allof its members due to “some actual and objectivecondition – not some hypothetical situation that

may or may not develop.” Another arbitratorrejected a union’s proposal that “[t]hoseemployees who perform dirty work, work with toxicmaterials, process the mail or support theprocessing of mail shall be granted reasonablewash-up time every two hours.” In AIRS # 40651,the arbitrator refused to grant a fixed period forwash-up time since there was no evidence thatmanagement prevented employees from washingtheir hands when there was a need to do so, andthere were procedures and policies in effect toensure a “quick, effective response” to exposure todangerous substances. She reasoned that thePostal Service is taking steps to provide a safeenvironment for employees including isolatingcontaminated mail, evacuating employees frompotentially contaminated areas, and making surethat employees who have touched potentiallycontaminated mail wash their hands and any partof their body that may have come into contact withthat mail.

In rejecting blanket provisions, arbitratorshave noted that not all employees require a setperiod of wash-up time (AIRS # 4862 and 6072,26898), and that a limited benefit cannot be turnedinto a general benefit for all (AIRS # 4867, 4871,13017, 27068-69, 33379). In addition, anotherarbitrator held that the Postal Service had met itsburden of proving that an unreasonable burdenexisted because of a provision allowing fiveminutes of wash-up before lunch for allemployees. He cited the excessive cost of allemployees receiving the fixed wash-up time andthe fact that employees use the time for smokingbreaks, to fetch their lunch buckets, and to wait atthe time clock (AIRS # 20764).

Finally, another arbitrator found that the costof two four minute wash-up periods daily for allemployees regardless of a demonstration of needconstituted an unreasonable burden (AIRS #26898).

Maintenance and Motor VehicleEmployees

Demonstrating that members of theMaintenance and Motor Vehicle Craft perform dirtywork has not generally proven to be difficult. (AIRS# 502, 505, 507, 545, 556). Obtaining a wash-uptime for these crafts has been relativelysuccessful. Where it has been shown thatemployees, including members of the Clerk Craft,perform work involving toxic substances, a wash-up period may be granted or at least considered


(AIRS # 508, 525, 556).However, see AIRS # 40576, in which an

arbitrator rejected the union’s argument that therebe ten minutes of wash-up for all TTO and MVOdrivers before lunch and ten minutes wash-up timefor these drivers at the end of their tours. Herelied on the 2004 national level award byArbitrator Nolan dealing with letter carriers, andfound that it could be applied to the APWU sinceboth agreements contain similar language and the22 items set forth in Article 30 appeared in the1973 agreement when both the NALC and APWUbargaining together. However, he recognized thathe was not bound by that award. The arbitratorthen determined that the only way that “blanketwash-up” can be negotiated without conflictingwith Article 8.9 of the National Agreement is whenthere is a showing that all MVS employees in thefacility perform dirty work or work with toxicmaterials.

Clerk Craft Wash-Up

Efforts to show that Clerk Craft employeesmeet the “dirty work” standard of Article 8 haveproven more difficult. In case after case, wash-upproposals involving fixed amounts of time for ClerkCraft employees have been rejected due to thearbitrators’ opinions that their work in the facilitydid not meet the dirty work standard (AIRS # 175,507, 523, 524, 525, 531, 534,34361). Thestandard applied by many arbitrators requires thatthe clerks perform work that would be “dirtier” thannormal (i.e., what one would expect fromdistribution of ordinary letter mail).

In several cases, arbitrators have found thatthe clerks met this “dirty work” standard andgranted them a wash-up period. In one such case,an arbitrator made the following determination:

There is no doubt that the Chapel Hill Clerks’work exposes them to dirty conditions at onetime or another during the workday. The MailProcessors who work with bags and hampersare continually exposed to dirt which isunavoidably transferred to their hands, bodyand clothing. In addition, these Clerks handlenewspapers, magazines, laboratory samplesand a variety of materials which keeps themconstantly exposed to dirt, printer’s ink (SIC)and even toxic materials. The Window Clerksare continually exposed to the dirty, unsanitaryand possibly toxic conditions inherent indealing with mail and money in connection

with over-the-counter postal transactions withthe public (AIRS # 566, p.3).

In another case, an arbitrator held that theunion had made the showing that all members ofthe bargaining unit routinely performed dirty workor work involving the handling of toxic materials.Its demonstration was essentially unrebutted. Sheupheld continuance of fixed wash-up times for allemployees including clerks (wash-up of 10minutes before lunch and at the end of a tour)(AIRS # 14655).

Moreover, another arbitrator concluded therewas a need for continuing in effect the pastpractice of wash-up for all clerks before lunch andbefore the end of the tour of duty. He noted thatthe office was small with no mailhandlers to unloadtrucks and perform the cancellation process (AIRS# 13034).

Also, an arbitrator upheld continuation of afive-minute wash-up period prior to lunch and atthe end of a tour for the Clerk Craft in Kansas City,Missouri. He rejected the Postal Service’sarguments that the wash-up provision wasinconsistent with the National Agreement andconstituted an unreasonable burden. In reachingthis decision, he relied on a 1980 award thatupheld the two five- minute wash-up periods atthis facility on the basis that the local postmasterhad determined that the Clerk Craft performeddirty work. In addition, he cited language fromArbitrator Snow’s award in USPS Case No. HOC-3W-C 4833 (AIRS # 27077) that the terms inArticle 8.9 “‘are subject to local definition andelaboration’” and said that it is therefore necessaryto look to “the conduct of the parties at the locallevel” in reaching a decision on whether to allowfixed wash-up periods for specific groups. Sincethe arbitrator found that the 1980 award was not“palpably erroneous in concluding that the KansasCity postmaster had determined the Clerk Craftperformed dirty work,” he determined that theaward’s acceptance of fixed wash-up for the ClerkCraft was not in conflict with the Agreement. Thearbitrator further found that since there was nosubstantial difference between the amount ofwash-up hours per week now and those at thetime of 1980 award, the argument that the fixedwash-up times represented an unreasonable costwas not convincing (AIRS # 32504).

Moreover, one arbitrator held that there wassufficient evidence to support increasing the wash-up time for clerks at the Brooklyn GPO based onthe large size of the facility, the long distances


clerks must travel to wash-up facilities, and thedemonstrated inadequacies of elevators andstairways (AIRS # 504).

Support for Fixed Wash-Up

Sometimes, arbitrators have refused toestablish fixed wash-up periods where the facilityalready has a “wash-up as needed” policy (See,for example AIRS # 13017, 20499, and 34360).Thus, the local must show that the “as needed”policy is insufficient and that the requested amountof time is necessary. This may be done in severalways. One approach is to show that managementhas denied reasonable wash-up requests.

In many cases reviewed, however, localsrequesting fixed wash-up periods either cannotcite any or cite very few grievances filed orcomplaints made. Often arbitrators point to thelack of grievances and complaints in theirdeterminations that a current “as needed” policy isadequate (AIRS # 1, 2, 529, 542, 565, 2943, and34360). However, the lack of grievance activityduring the time fixed wash-up time provisions arein effect may be a convincing argument to supportcontinuation of the existing provisions (AIRS #33153).

A local may also demonstrate that granting afixed wash-up period for a group of employees ismore efficient than maintaining an “as needed”policy because the latter approach requires timeby supervisors to deal with daily wash-up requests(AIRS # 566). Note that such an argument waspersuasive in a case upholding fixed wash-uptimes for all employees. In that case, the arbitratorconcluded that given “(a) the Service’s goal ofmaintaining the efficiency of its operation, (b) themandatory obligation placed on Installation Headsby Section 8.9 to grant wash-up time, (c) therecognized subjective nature of the concept ofdirty, (d) the complexity of applying the. . . criteriato determine the reasonableness of eachemployee’s request and for determining the timeneeded for wash-up in these varying conditionsand circumstances, and (e) the number ofimpacted employees and resulting requests forwash-up time,” it would be reasonable to have afixed wash-up period rather than to acceptmanagement’s proposal to deal with eachemployee’s specific request (AIRS # 33153).

Facilities Argument

Still another approach involves proof that afixed wash-up period is necessary since wash-upfacilities are inadequate due to the employee/facility ratio, the inoperative condition of somefacilities, the geographical inconvenience eitherbecause an employee must travel a great distanceto a wash-up facility and/or is delayed by faultyelevators or stairways (AIRS # 502, 504). Suchallegations are subject to proof and should not bemade if they cannot be substantiated (AIRS # 505,542, 2287).

One local justified an increase in wash-uptime over the previous LMOU by proving thatworkroom congestion made additional timenecessary (AIRS # 4447). The samedemonstration would assist arguments for an initialgrant of wash-up time in an LMOU. On the otherhand, reduction in wash-up time has been foundjustified on the basis of conditions such as thenumber of employees using washrooms, thelocation of the washrooms in relation to workareas, and the total number of washrooms (AIRS #13034).

Comparability and Time Studies

Locals should avoid comparing wash-uppolicies of one facility with those of another. First,the arbitrator may find that the comparisons arenot valid. Second, for every comparison which thelocal makes to support its position, the Service canprobably make one which does not (AIRS # 542).

Further, a local should be very circumspect inusing calculations or time studies to support wash-up proposals. Such calculations may beinvalidated if they fail to take into account thenormal daily absences which reduce the size ofthe work force on any given day. Such calculationscan also be invalidated if an actual demonstrationcontradicts them (AIRS # 544).

However, locals should be prepared todiscredit time studies performed by managementin order to obtain additional or longer wash-uptime. For example, an arbitrator ruled that “[t]hedesign, universe, and methods of data collection”in a management wash-up time survey were so“flawed” that he could not “in good consciencegive any validity to its results.” He creditedtestimony of the union’s industrial engineeringexperts that the survey findings had no usefulnessin predicting wash-up time behavior and violated


Article 34 of the National Agreement (AIRS #21117). But, see AIRS # 14562 where an arbitratorrejected carrying over a pre-existing wash-upprovision on the basis of management timestudies showing that only 41% of a sample of 188employees used wash-up time over a two weekperiod and indicating that employees using wash-up consumed less time than required by theLMOU (AIRS # 14562).

Past Practice of Fixed Wash-Up

Evidence that fixed wash-up time has been apast practice in a facility may support continuationof the policy in an LMOU. However, a local shouldavoid making the past practice argument unless itcan actually be substantiated. Unfortunately, somelocals have been alleging a past practice wherenone was proven (AIRS # 529 and 2943). Onearbitrator has outlined the following criteria for adetermination of the existence of such a pastpractice:

The past practice wash-up (must be) (1)unequivocal, (2) clearly enunciated and actedupon, (3) readily ascertainable practiceaccepted by both parties (AIRS # 529, p.8).

On the other hand, several locals have beenable to keep their five minute wash-up times byproving that the wash-up periods had been long-term practices at the facilities. In one case, anarbitrator stated that since the parties agreed tothe five-minute wash-up period in the previousLMOU, it could be assumed that the provision wasrequired under the circumstances of the postalinstallation and that the parties had found itreasonable (AIRS # 7862). Moreover, he held thatthere was no inconsistency with the NationalAgreement where the parties by their own longpractice and continued agreement, fixed the termsof the wash-up time. Another arbitrator found thata five minute wash-up provision that had been ineffect since 1949, and carried forward as anexisting practice in the LMOU, was notinconsistent with the National Agreement (AIRS #13483). However, locals should be aware thatreliance on past practice or prior agreements asevidence of reasonableness may not beappropriate “in the face of objective evidence” thatrequires a decision to the contrary (AIRS #14562).

Increasing Wash-Up

Proposals for additional or longer wash-upperiods may succeed if based upon facts showingthat the requested change(s) is warranted (AIRS #504, 545). The local should demonstrate that thewash-up period initially granted did not provideenough time, or that changes during the life of thecurrent LMOU now require more time (AIRS #545).

Finally, if management seems intractablyopposed to a fixed wash-up period, there is anapproach used by one arbitrator. He decided:

...clerks and maintenance employees wereentitled to a reasonable wash-up time beforelunch and at the end of the tour. However,clerks were allowed clock time only if 5minutes or more were required to accomplisha clean condition...(AIRS # 556).

2. Basic Work Week

The Establishment of a Regular Work Weekof Five Days with Either Fixed or RotatingDays Off

If a local desires to change from its currentbasic work weeks to any combination of fixed and/or rotating basic work weeks, the local shoulddemand the necessary information from the PostalService such as, complement figures, number ofemployees needed each day, present schedules,overtime information, etc.

To be successful in negotiations or arbitrationyou should be prepared to show:

1) That your proposal meets the Postal Serviceneed for X number of employees withappropriate skills.

2) There is a need for a change.

3) The benefits of the proposal to bothemployees and employer.

Note: In accordance with the parties’agreement and intent of the 2006 MOU re:“Supplemental Work Force; Conversion ofClerk Craft PTF’s,” in mail processing,transportation and vehicle maintenance facilityoperations in 200 man-year installations,career employees will have consecutive


scheduled days off, unless otherwise agreed toby the parties at the local level.

Fixed vs. Rotating

Fixed days off will usually allow more seniorpeople to have weekends off. For example, if only60% of the work force were needed on Saturdayand Sunday, 40% of the most senior employeescould get Monday through Friday schedules. If thathappened, no one else would ever get Saturday orSunday off. Rotating days off provide anopportunity for everyone to get an occasionalweekend. In the above example, if everyonerotated each employee could get off 2 out of 5weekends. However, even the most senioremployee would have to work 3 out of 5weekends.

Combinations of fixed and rotating canprovide everyone an occasional weekend off anda number of Monday through Friday assignments.

Claims by management that locals mustnegotiate for either fixed or rotating and not acombination of both are wrong.

In a rights arbitration, Arbitrator Haber statedthat a clause containing specified percentages ofMonday through Friday, Tuesday through Saturdayand rotating schedules would be consistent withthe National Agreement (AIRS # 278, grievancewas denied for other reasons). In addition, aprovision that called for a six-month trial period ofa five-day work week with rotating days off fordistribution clerks and then allowed the clerks tovote to either keep or reject the rotating schedulewas upheld by an arbitrator. Arbitrator Foster heldthat the provision was not inconsistent with theNational Agreement and did not present anunreasonable burden to the Postal Service (AIRS# 21048 and 20392). Another arbitrator upheld asimilar provision and found that a “mix” of fixedand rotating days off was not inconsistent with theNational Agreement (AIRS # 27132-33). Moreover,Arbitrator Fletcher found that a one-third to two-thirds ratio between positions with rotating days offand positions with fixed days off was reasonableand not inconsistent with the National Agreement(AIRS # 28108-111). But, see AIRS # 20574 inwhich Arbitrator Eyraud ruled that a provisionallowing for a combination of fixed and rotatingdays off constituted an unreasonable financialburden and was inconsistent with the terms of theAgreement. In addition, an award by ArbitratorHelburn determined that a proposal seeking anincrease by one or two in the number of Window

Clerks with a fixed schedule of Saturday andSunday off, rather than retaining them on arotating schedule, would create an unreasonableburden. He relied on a supervisor’s testimony thata minimum of eight clerks were needed for thewindow and distribution work as well as datashowing that if the union’s proposal were in effectclerk staffing would have been at six or less during69% of the Saturdays (AIRS # 32252).

Management Rights

Arbitrators have rejected language thatinfringes on Management’s right to fix the basicwork week, as established by the conditionallanguage of Article 8, Section 2.C (AIRS #4901,4902, 13586). Moreover, one arbitrator heldthe subject of five consecutive work days wasoutside the negotiable items under Article 30,since Item Two did not indicate a work week wascomprised of five consecutive days (AIRS # 6414).In another award, an arbitrator held that Article30.B.2 does not cover consecutive days off (AIRS# 13586). However, see AIRS # 33542 in which anarbitrator reasoned that management’s right toschedule could be restricted in rejecting itsproposed deletion of language that limited part-time regular employees to five work days with twofixed days off. The arbitrator determined both thatthe existing provision was not in conflict with theNational Agreement and not an unreasonableburden.

Language that is conditional and reservesmanagement’s right to determine the basicworkweek within reasonable bounds has beenallowed. For example in AIRS #4909, an arbitratorheld that an existing LMOU with the qualifier“subject to the needs of the Postal Service” wasnot in conflict or inconsistent with the NationalAgreement. Moreover, in AIRS # 7579, anarbitrator upheld a provision with the phrase “tothe maximum extent possible.” Another arbitratorrefused to disturb a provision that stated that“[e]very effort shall be made to provide themaximum number of Monday through Friday basicwork weeks in each Section/Tour consistent withoperational needs.” (AIRS # 20619) Also, anarbitrator concluded that Management failed toshow with probative evidence that a provisionestablishing a mandatory work week of fiveconsecutive days was inconsistent with theNational Agreement, and therefore found thatthere was no reason for doing away with aprovision that had been in existence for a length of


time (AIRS # 7022). (However, see AIRS # 20499,20500 in which an arbitrator rejected the union’sproposed language that “[t]o the maximum extentpossible, all full-time and part-time regularpositions in the clerk craft shall have consecutivedays off.”)

Practicality of Proposal

Significantly, impasse arbitrations have reliedheavily on the National Agreement provision inArticle 8, Section 2.C:

“As far as practicable the five days shall beconsecutive days within the service week.”

Practicality then is a key issue. Webster’sDictionary defines “practicable” as “that which canbe done or put into practice; feasible: as, apracticable plan.”

Proposals that are too restrictive willprobably be rejected (AIRS # 513 and 1443). Forexample, the arbitrators in Case Nos. 513 and1443 rejected provisions that provided that all full-time regular positions in a facility shall have aregular work week of five consecutive days or awork week shall be five days with fixed days off ofSaturday and Sunday, Sunday and Monday, orrotating days. (But see AIRS # 20792 cited belowfor a different result.)

Even though a proposal is practical in thesense that it will provide sufficient workers eachday of the week, it may be rejected. For example,a local attempted to change its LMOU fromproviding that each full-time employee shall have ajob with a fixed day off to all full-time clerks shallhave a rotating day off. The arbitrator rejected theproposal because it would cause inefficienciessuch as increased training costs (AIRS # 2105).Also, see AIRS # 42359 which had a similar result.

Showing of Need or Benefit

Additionally, arbitrators will consider thebenefits of a proposal to an employer oremployees (AIRS # 2105 and 20921). Basic workschedules that have worked well over a longperiod will not be changed without ademonstration of a need or benefit to employees,or a demonstration of an impediment in theefficiency of the Postal Service (AIRS # 2105,4860, 6414, and 7892). For example, in one case,an arbitrator refused to delete a provisionproviding that regular clerks shall have two

consecutive days off, Saturday and Sunday, orSunday and Monday. He found that there was noshowing that unnecessary overtime would occurduring weekends, holidays, and vacations (AIRS #20792). A proposal that benefits only a smallnumber of the employees at a facility may berejected (AIRS # 5291). Moreover, a proposal thatmay benefit employees by providing rotating daysto some clerks to allow them to spend more timewith their families may require the Postal Serviceto hire more employees or reduce service. Anarbitrator has rejected such a proposal onefficiency grounds (AIRS # 4869). Anotherarbitrator rejected a proposal for rotating days offon the basis that it would deprive a postmaster ofthe ability to schedule regular clerks when they aremost needed and would result in additionalexpenses for cross-training and providing securityfor the stock of more employees withaccountability (AIRS # 20491).

Union Approval or Consultation

Provisions requiring union approval orconsultation regarding the basic work week havebeen rejected in some cases (AIRS # 6120, 6130,6186, 13586), as well as provisions requiringManagement to establish a five consecutive workday week for new job assignments or additionalpositions created (AIRS # 4902 and 7501).However, union consultation has been allowed byarbitrators in AIRS # 13028 and 20619.

3. Emergency Curtailment

Guidelines for the Curtailment orTermination of Postal Operations toConform to Local Authorities or as LocalConditions Warrant Because of EmergencyConditions

Management will strongly oppose giving upits right to determine when postal operationsshould be curtailed and administrative leavegranted to employees who are prevented fromreporting to work due to an “Act of God.” However,every effort should be made to negotiateguidelines to cover such “Act of God” situations,taking into consideration the resulting impact onemployees, notification of employees, the safetyand health of employees, the advice of localauthorities, etc.

In support of proposals seeking curtailment


during weather emergencies, locals should notethat a congressional committee in 2002 maderecommendations that addressed curtailing postaloperations in these circumstances (U.S. House ofRepresentatives Report by the Committee onAppropriations attached to the Treasury, PostalService, and General Government AppropriationsBill, 2002 (HR. 107-152)). Arising out of concernthat the Postal Service placed the health andsafety of employees at risk by not curtailing postaloperations in a timely manner during severalhurricanes, that report urged the Service to adopta policy and practice of following therecommendations and directives of federal, stateand local emergency management and weatherauthorities in all locations served by the U.S.Postal Service when weather emergencies arise. Arestatement of this position may be used toformulate local union proposals. (For example, aproposal may provide in part as follows: To avoidplacing the health and safety of postal employeesat risk during weather emergency situations, thePostal Service shall follow the recommendationsand directives of federal, state and localemergency management and weather authoritieswhen emergencies arise).

In addition to “Acts of God” there are otherlocal emergency conditions that can benegotiated, such as, responses to the discovery ofexplosives in the building, bomb threats, lack ofheat or air-conditioning, or other environmentalfactors. Given the right set of circumstances all ofthese situations can become life threatening. Intackling these kinds of problems the localnegotiating team ought to consult with expertsfrom the fire department and/ or police departmentconcerning explosives and bomb threats.

In regard to working in excessively cold orhot conditions, an industrial hygienist couldprovide background information on health risksand common sense actions that can be taken toavoid or reduce the risks. Examples of how suchthings were poorly handled in the past can beused to justify the need for such provisions in thelocal memo.

In addition, events involving exposure toanthrax and subsequent termination of postaloperations because of such events have raisedthe issue of an ongoing need to ensure thatprocedures are adequate in the event ofemergencies related to biological or chemicalagents. Provisions that set out guidelines that areacceptable to the union for closing facilities due tochemical or biological contamination or that allow

the union input into developing such guidelineswould be an appropriate matter for bargainingunder Item 3. In addition, the union may presentproposals that provide that employees can refuseto work in conditions that they reasonably believewould result in death or serious injury because ofbiological or chemical contamination without beingsubject to discipline and that they will bereassigned to work areas that they consider to besafe.

A U.S. Supreme Court ruling upheld OSHA’sregulation prohibiting discrimination against anemployee who refuses to perform a task becauseof a reasonable apprehension of death or seriousinjury under circumstances where there isinsufficient opportunity or time to obtain correctionof the problem by the employer or assistance fromthe Occupational Safety and HealthAdministration. While this decision in WhirlpoolCorp. v. Marshall (445 US 1, 1980) and the OSHAregulation in 29 CFR 1977.12 provides someprotection for employees, it may be important toset out a local procedure to address suchcircumstances and to provide for alternatives suchas administrative leave or reassignment that willbe available to employees if they exercise the rightof refusal after reporting an imminent danger tomanagement and no corrective action has beentaken. Also, examples of provisions that otherunions have negotiated on some of these subjectsare included at the end of this item.

Management Discretion

Relying on Article 3 or ELM Sections 519.213and 519.221, some arbitrators have rejectedproposals that restrict management’s discretion ingranting administrative leave or in determiningwhat constitutes an emergency (AIRS # 6107,6335, 6433, 7232, 7233, 7235, 27950, 32253,32253). Examples of proposals rejected on thesegrounds have included provisions that requireshutdown of a facility on the basis of hurricanewarnings by the National Weather Service or whenweather conditions prohibit delivery of mail or thatrequire automatic evacuation of a facility after analleged bomb threat. However, while an arbitratordenied language for an LMOU requiring managersat a Processing and Distribution Center to comply“when the weather bureau issues a hurricanewarning or any severe weather warning and themayor or city manager of the city in whichemployees live, informs people to stay off thestreets,” the arbitrator included language that


would not delegate management’s right to managethe facility. The language provided that

The decision for curtailment or termination ofPostal Operations to conform to the orders oflocal authorities or as local conditions warrantbecause of emergency conditions shall bemade by the installation head. When thedecision has been reached to curtail PostalOperations, to the extent possible,management will notify and seek thecooperation of local radio and televisionstations to inform employees. This decisionwill be made as promptly as possible with dueconsideration for the safety and welfare of theemployees and the protection of their familiesand personal property. (AIRS # 38348)

Some arbitrators have rejected detailedlanguage that protects the health and safety ofemployees (See AIRS # 7232, 21011, 21012,21013). Also, one arbitrator has ruled that a broaddefinition of “emergency conditions” proposed by alocal union contained circumstances that werebeyond the scope of Article 30.B.3 (AIRS #33168). Another arbitrator rejected a proposal thatprovided that at any time Acts of God exist or thearea is ordered to be evacuated by civilauthorities, employees shall be granted approvedleave or reassignment. Though the proposalprovided that the type of leave to be granted wouldbe determined by the Postal Service, the arbitratorruled that the proposal extended beyond thescope of Article 30 when it proposed that leaveshould be granted. He said that the union’s failureto make reference to Article 10 in its proposal, andto defer to such leave regulations, could createconflicts that are inconsistent with the NationalAgreement (AIRS # 39771).

Successful Provisions

However, several arbitration awards haveaccepted extensive union proposals. In AIRS #576 Arbitrator Dash added the following provisionsto the LMOU:

In the event that a bomb threat occurs ateither the Newark or Hackensack PostalService locations, the Newark management’s“Contingency Plan For Bomb Threats”(February 23, 1972) shall become immediatelyoperative for that location, and a simplifiedwritten “plan” shall become operative at the

Hackensack, New Jersey location. In bothlocations, the “Joint Labor-ManagementSafety and Health Committee” members atwork at the time shall be consulted briefly bymanagement before the “Plan” is initiated inconnection with any bomb threat. All AmericanPostal Workers’ Union officers at bothlocations, shall be provided with written copiesof the “Plan” by management.

If and when heating equipment at any subjectlocation is deemed inoperable bymanagement, and any possible offsettingsteps taken by it fail to prevent the dropping ofthe inside temperature below 50 degrees for afull tour, the individual employees who fear towork under such conditions may requestappropriate relief therefrom in the form of atemporary transfer to a nearby location or of aleave. The nature of such leave if requested,shall be determined by management, but aleave shall not be unreasonably withheld.

If and when air-conditioning or air-ventilationequipment at any subject location is deemedinoperable by management, and any possibleoffsetting steps taken by it fail to attain aninside temperature level below 95 degrees fora full tour, the individual employees who fearto work under such conditions may requestappropriate relief therefrom in the form of atransfer to a nearby location or of a leave. Thenature of such leave, if requested, shall bedetermined by management, but a leave shallnot be unreasonably withheld.

In AIRS # 5554, an arbitrator rejectedmanagement’s contention that the union waslimited to proposing only those guidelines whichmay be operative after an employer has decidedto curtail or terminate operations. He emphasizedthat it was well established that health and safetywas a mandatory subject of bargaining and heaccepted as modified proposals for curtailingoperations in the event of a bomb or safety hazardand dealing with granting leave when conditionsresult in extremely high or low temperatures in afacility. This arbitrator added the followingprovisions to the LMOU:

In making a determination to curtail orterminate operations following an emergency,management will take into account (a) theadverse effects, if any, on the normaloperation of public transportation, (b) the


closing of roads and highways in countiescontiguous to Fulton County.

If management has reasonable grounds tobelieve that a bomb or other explosive deviceis within the installation and there isreasonable cause to believe that there is animminent safety hazard, management shallcurtail or terminate operations. Mere suspicionof the existence of a bomb or explosivedevice, standing alone, does not constitutegrounds for curtailment.

If equipment failure is believed bymanagement to be the proximate cause ofextreme high temperature or extreme lowtemperature in the facility, and if suchtemperatures constitute a health hazard,management shall be lenient in granting leaveor dismissing those employees whose healthmay be at risk. Mere assertion on the part ofan employee that his health is at risk does not,standing alone, constitute sufficient basis forearly dismissal.

Another arbitrator upheld these sameprovisions against another managementchallenge, but held that another provisionrequiring that leave be granted if theDepartment of Public Safety or anothergovernmental body certifies or determines thatconditions pose an imminent health or safetyrisk constituted an unreasonable burden(AIRS # 20501).

However, Arbitrator Parkinson ruled that aprovision allowing employees to requestappropriate leave whenever a traveler’s advisoryexists and they believe conditions are sohazardous as to make it unsafe to drive did notconstitute an unreasonable burden. The arbitratorrejected management’s argument that thislanguage created an impression with employeesthat they were entitled to administrative leave andcaused them not to report to work. In addition, thisarbitrator upheld provisions giving special deliverymessengers the right to request curtailment ofdelivery of mail to comply with any emergency andallowing a handicapped employee confined to awheelchair to request release during inclementweather through the appropriate chain ofcommand or outside regular hours by calling theLabor Relations representative at his/her place ofresidence (AIRS # 27191).

In AIRS # 20617, an arbitrator added thefollowing language to an LMOU that alreadyprovided for notification to the union ofmanagement’s plan to curtail mail due to localemergency conditions:

The Postal Service shall furnish to the Union acopy of its contingency plan concerning bombthreats except as to the personal telephonenumbers of Postal officials and for limited usein accordance with the reasonable exercise ofmanagerial discretion and responsibility.

This arbitrator, however, rejected languagerequiring management to give the union copies ofcontingency plans for heating equipment, air-conditioning, and waterworks failure and requiringnotification and consultation with APWU stewardsbefore a contingency plan is initiated. He alsorejected language allowing employees who fear towork under conditions when there is a bomb threator heating, air-conditioning, air-ventilation, orwaterworks equipment failure to be granted reliefin the form of temporary reassignment or leave.

In another award in AIRS # 34360, anarbitrator rejected the union’s proposal that indeciding whether to curtail operations, the PostalService should take into account the advice ofsafety committee members as well as the needs ofthe Service and the advice and orders of local civilauthorities. He determined, however, that sincethere is no substantial administrative burden inkeeping employees informed under thesecircumstances, language requiring the Service todo so should be included in the LMOU. In addition,also on the basis that no substantial administrativeburden would be involved, he accepted languageproposed by the union regarding providing it withall emergency contingency plans that relate to thesafety and welfare of postal employees. Thelanguage that was ordered to be adopted is asfollows:

If Management is contemplating the possiblecurtailment or termination of operations, itshall keep the employees advised of thegeneral state of those deliberations unlessthere is good cause (e.g. securityconsiderations) to the contrary. Managementshall ordinarily use a Local official or SafetyCommittee member for that purpose.

Management shall supply the union with acopy of all emergency contingency plans that


relate to the safety and welfare of postalemployees (i.e. bomb plans), except as to thepersonal telephone numbers of the PostalOfficials, with updates as they becomeavailable.

Other arbitrators have allowed language thatclarifies an employee’s right to request leave whendriving may be hazardous (AIRS # 5231, 27191).Language calling for union notification in the eventof a breakdown in air conditioning or heating alsohas been accepted (AIRS # 6433). In addition,another arbitrator has added language to anLMOU that requires management to grant anemployee appropriate leave if medical authoritiesdetermine they are too ill to work due to faultyheating and air-conditioning (AIRS # 14258).

Leave for Acts of God

Impasse arbitrations show that most disputesarise when leave is in issue for “Acts of God.” Forexample, in AIRS # 4906, the arbitrator rejected aunion proposal that restricted the postmaster togranting only administrative leave in the case ofemployees affected by closing of businesses andcurtailment of public transportation due toemergency conditions. Also rejected have beenproposals to negotiate leave guidelines foremergency situations where there is nocurtailment or termination of operations but someemployees are unable to report (AIRS # 530, 568,573). In addition, a provision requiring thatadministrative leave be granted when employeesare prevented from reporting for work due to Actsof God, hazardous weather conditions, oremergency situations, and when dismissals arewarranted due to orders of local authorities wasrejected on the basis that it removed frommanagement the right to make a judgment on thescope of emergencies and the granting ofadministrative leave (AIRS # 20913).

An attempt to insert language thatmanagement must follow the provisions of theELM was rejected because the regulations existand violations can be grieved without adding to theLMOU (AIRS # 535).

In AIRS # 568 and 6090, the arbitrators madeclear that it makes no sense to write new andadditional contract language to correctmanagement violations of current provisions. Newlanguage is no substitute for grievances and otherattempts to police management violations.

However, grievances may demonstrate thatnew language is needed to correct a problem. InAIRS # 8570, 8571 and 8574 (rejected on othergrounds) the arbitrator stated additional protectionof a specific clause in the LMOU would beappropriate where policies and regulations had notbeen followed by local management over asubstantial period of time.

Examples of Other Union ContractProposals on Safety

In determining what language to include in aprovision, a review of other unions’ proposals onthe issues of safety and health and responses toaccidents and emergencies may be useful. Ofcourse, such language has to be refined so that itwill be more applicable to a local union’scircumstances. A provision in the contract betweenUSWA and Bethlehem Steel, 1993-1999,addresses the situation of emergency responses:“... Employees shall be instructed in escape andemergency rescue procedures. A detailed outlineof the training procedures shall be included in theprogram: [The program shall include] posting ofemergency escape procedures in areas ofpotential hazard; [There shall be] an emergencyrescue program which shall include provisions fortreatment of carbon monoxide exposures [can bechanged to reflect the type of exposure that isinvolved, such as anthrax exposure], emergencyrescue techniques for various parts of the plant,and appropriate rescue and recovery equipmentincluding resuscitators. The program shall includeidentification of Employees trained in emergencyrescue techniques.”

Another example is a provision addressingthe issue of not working under unsafe conditions inthe ILWU and Pacific Maritime AssociationAgreement, 1993-1996: “Longshoreman shall notbe required to work when in good faith theybelieve that to do so is to immediately endangerhealth and safety ... The employer shall have theoption of having the men raise a question of healthand safety stand by until a decision is reached or‘working around’ the situation until it can beresolved, and no further work shall be performedon that disputed operation until the health andsafety issue is resolved.” A provision concerningassigning an employee another job after he or sheexercises a right of refusal is contained in theUAW and General Dynamics contract of 1991:“Employees who exercise ... right of refusal shallbe assigned to other available work ... either at the


... rate of the job from which he/she was relievedor the rate of the job to which he/she is assigned,whichever is higher.”

4. Leave Program

Formulation of Local Leave Program

Besides Item 4, Items 5 through 12 deal withthe local leave program.

Item 4 gives the local an opportunity to tie allof the other items together into some logical leaveprogram as well as to cover subjects notspecifically covered elsewhere: such as, thesections for vacation choices; whether anemployee coming from another section during thecourse of the year will keep his or her initialvacation selection or will have to select a newvacation in the new section; how employeescancel vacation; how empty choice vacation slotsare filled as they become vacant during the courseof the year; the trading of vacation periods; theeffect of military duty or illness on vacationperiods; indicating the number or percentage ofemployees permitted off during non-choiceperiods. Remember to specifically address eachcraft separately in your LMOU leave provisions.Each craft has different needs for coverage andseniority selections.

Note: Locals are cautioned againstnegotiating LMOU provisions identifying theAPWU as administrator of employee choicevacation periods. Depending on what isnegotiated, including provisions on this item ina local’s LMOU may limit the union’s flexibilityto opt out of administration on a quarterlybasis (as provided in the 2006 NationalAgreement MOU re: APWU Administration ofOvertime, Choice Vacation Periods, andHoliday Work). At this time, reliance on theMOU itself should suffice. In addition, before aLocal assumes these administrativeresponsibilities, the local parties will beprovided training by the national parties.

Inconsistent and In Conflict

The following examples are cases whereimpasse arbitrators have held specific provisionsproposed as part of the local leave program to beinconsistent or in conflict with the NationalAgreement or not covered by Article 30:

• A minimum of two days bereavement leave(AIRS # 4353). However, see MOU re:Bereavement Leave in 2006 NationalAgreement.

• Automatic approval of leave for weddings,graduations, military leave, funerals,Christmas Eve if the request is based onreligious reasons, etc. (AIRS # 4353, 6660,6137, 7584)

• Automatic “Administrative Leave” when notable to report due to snow storm (AIRS #2607 and 512)

• No denial of emergency annual leave solong as management receives notification ofthe nature of the emergency (AIRS # 6097)

• Removal of 204B from vacation schedule(AIRS # 2607)

• Automatic approval of requested time off forblood donations and provision of uniformamount of administrative leave for thispurpose (AIRS # 574, 20913, 20915-20920).But see AIRS Case #20907 where anarbitrator has upheld such a provision.

• Prohibition against requiring a medicalcertificate for sick leave or LWOP requestsof 3 days or less, or requirement to acceptverbal certification of absences of 3 days orless (AIRS # 543, 6103, 7586)

• Automatic LWOP for Disapproved absencesor charging of LWOP in all cases whereemployees don’t have annual leave or sickleave (AIRS # 6142, 7581, 7582, 20903).But see AIRS # 20915-20920 where anarbitrator upheld a provision on grantingrequests for LWOP or LWOP in conjunctionwith sick or annual leave the sameconsideration as sick or annual leaverequests. Also see the MOU on LWOP inLieu of SL/AL and pre-arbitration settlementQ9OC-4Q-C 95048663 on LWOP, CBR 99-03, pages 58-61.

• Maternity leave policy (AIRS # 20895,21888)

• Automatic approval of any leave up to aminimum number of employees or a


minimum percentage of employees (AIRS #21888)

• Automatic LWOP to allow employees toretain earned leave at employee’s option(AIRS # 21888)

• No denial of incidental annual leave due tomanagerial leave, craft employees detailedout of craft or loaned to another facility(AIRS # 21888, 21034)

• 48-hour time period to select choicevacation (bypassing choice vacationselection period) (AIRS # 27030-34)

• Signing up for leave for less than a weekduring the choice vacation period (AIRS #27195)

Proper Items for Leave Programs

However, many items concerningadministration of the leave program have beenruled proper (although not always meritorious),such as:

• Computations of the number allowed offduring choice vacation period (Item 9)should be based on number of authorizedpositions rather than actual number working(AIRS # 4353)

• Time frame in which management must actupon incidental leave requests (AIRS # 512,541, 549, 2955, 7585, 8470, 20892, 21034,20915-20920)

• Time frame in which employees must makerequests for leave for choice vacation periodand for incidental leave (AIRS # 4662, 4861,4953, 9686)

• Procedure for disapproving leave requests(AIRS # 7370)

• Employee to keep original choice vacationselection from old section when transferredto a new section (AIRS # 562, 34360)

• Employee to select another vacation periodwhen ordered to military training during aselected vacation, and military leave not to

be included as part of choice vacation leave(AIRS # 7366, 21888, and 22474)

• Documentation procedures forsubstantiation of absences (AIRS # 7583)

• Exchange of a choice vacation leaveselection by mutual consent in the samecraft and level (AIRS # 21888)

• Procedure for cancelling previouslyapproved annual leave and posting theavailable leave (AIRS # 21888, 21034,21871)

• Requests for granting LWOP to be givensame consideration as applications forannual leave or sick leave (AIRS # 20915-20920)

• LWOP may be granted where employeelacks leave to cover vacation choice (AIRS #27397 and 34984)

• Procedure for vacation bidding by usingcalendar system (AIRS # 26731)

• Election to be wait-listed in seniority orderfor choice vacation that was disapproved orto select any open choice periods (AIRS #27128-31)

• Leave used during employee’s leaveselection will be at employee’s option (in 8hour increments) (AIRS # 27068-69)

• Reposting of vacation slots that have beenwithdrawn (AIRS # 34360)

• Orientation before annual leave sign-up(AIRS # 34360)

• Posting of leave vacancies of less than oneweek during the non-choice vacation period(AIRS # 34360)

• Posting of an early out list for employees onthe clock (AIRS # 33001)

• Procedure for holding a previously denied3971 for consideration (AIRS # 33001)


Guaranteed Leave Quota

Locals should note that impasse arbitratorshave not in the past been sympathetic toproposals attempting to guarantee approval ofannual leave requests within a specified quota(AIRS # 539, 577, 512, 6779, 6780).

However, in a national level decision,Arbitrator Mittenthal ruled that LMOU provisionsgranting employees the right to take certain leavetime on the basis of a consolidated percentage,fixed number or other comparable formula, are notinconsistent or in conflict with the NationalAgreement (See, AIRS No. 6931, January 1986).

Many locals have negotiated suchagreements without needing to resort to impassearbitration. Indeed, where the local has negotiateda guarantee, arbitrators deciding “rights”arbitrations have enforced the LMOU provisionsdespite challenges that the provisions are “inconflict” (AIRS # 594, 1444, 1984).

Note: Be aware that a provision in Article10, Section 6 of the National Agreementprovides for a “minimum charge for leave”(one hundredth of an hour) and for use ofannual and sick leave in conjunction withLWOP. Also the MOU on Paid Leave and LWOPin the National Agreement, the MOU on LWOPin lieu of SL/AL, and pre-arbitration settlementQ9OC-4Q-C 95048663 on LWOP (CBR 99-02,pages 58-61) address the issue of LWOPusage.

5. Choice Vacation Period(s)

Duration of the Choice Vacation Period

Impasse arbitrators have been favorable toboth shortening or lengthening the ChoiceVacation Period or alternately permitting moreemployees off (AIRS # 503, 549, 551). Allemployees are entitled to a vacation within thechoice vacation period (Article 10, Section 3.D).Note that if the choice vacation period is Junethrough August more people will be off in a shorterperiod of time than if the choice vacation period isMay through September. (See AIRS # 26991-92 inwhich an arbitrator upheld a union proposal forlimiting the choice vacation period to the summermonths.)

In AIRS # 13045 the arbitrator held that a 20-week choice vacation period, beginning withMemorial Day, was a reasonable compromise of

the union proposal for a 16-week period and amanagement proposal for a 24-week choiceperiod. The arbitrator reasoned that a 20-weekperiod would increase the number of employeesoff during the choice period at a given time by fiveand would still provide a choice during thedesirable vacation season. There would also belittle effect on the efficiency of mail operationssince the volume of mail would not increase untilafter the 20-week period. In AIRS # 20765 and20766, an arbitrator ruled that the Postal Servicehad not met its burden of proving that anunreasonable burden existed due to existinglanguage that provided for a choice vacationperiod beginning on the last Sunday of May andlasting for 18 weeks. He rejected the Service’sattempt to extend the choice period to 24 weekson the basis that the alleged adverse impact frominsufficient employees may be due to other factorsthan the length of the choice vacation window andthe number of employees eligible for vacation.

Another arbitrator rejected management’sproposal of a 38 consecutive week choicevacation period starting in January and insteadaccepted the union’s proposal of a 26-week periodstarting in April (AIRS # 28108-111). Moreover, anarbitrator rejected management’s proposal tomake the leave schedule the entire calendar yearwith the exception of the Christmas period.Instead, he accepted in part the union’s proposalthat it should run for 24 consecutive weeksbeginning with the first full week in May andincluding the week in which Thanksgiving falls, orthe week of Christmas if Christmas falls onTuesday or earlier, the week after if it falls onWednesday (AIRS # 34360).

Different locals take on different approachesto vacation planning. Some locals may negotiatean 11 or 12-month vacation period whereas otherswill negotiate different percentages or numbers ofemployees who may be scheduled on vacation atdifferent times during the 11 or 12-month period.

The following is an example of a provisionrelating to the Motor Vehicle Division:

The maximum number of employees in eachcategory as specified in each craft article ofthe Local Memorandum of Understanding shallbe 10% each week of the prime vacationperiod.

In the Motor Vehicle Division, categories shallbe occupational groups, sections, and tours.


A longer choice vacation period mayaccommodate the needs of employees better thana shorter choice vacation period. For example, alocal with a large group of parents of school agemight feel the summer months are preferable tomeet their needs whereas a local with an olderworkforce might find the winter months preferable.A longer choice period may accommodate theneeds for the entire workforce of the local.However, one arbitrator has determined that in theabsence of proof of a compelling need forincreasing a choice vacation period or an adverseeffect on employees, he would not accept a localunion’s proposal to increase a choice vacationperiod from February through November toJanuary through November and the last twoweeks in December (AIRS # 26967-68). He foundthat the current 43-week choice period wassufficient to preclude any forfeiture on the part ofthe nine clerks at the office.

Choice Vacation during Holiday Periods

Some arbitrators have been reluctant toincrease the choice vacation period to include theChristmas to New Year’s period, the week ofThanksgiving, or the period around Easter in thechoice vacation period (AIRS # 21888, 20504,20904, 34361). Also, the addition of the month ofNovember to the choice vacation period may berejected because of the high volume of mail at thattime (AIRS # 27427-30). Another arbitratorrejected the elimination of restrictions onassignment of the last week of December as avacation period (AIRS # 28647). In addition, anarbitrator rejected a union’s proposal to includeclerk craft employees in a provision granting 5% ofall employees within each section leave during thefirst full week of December through December24th (AIRS # 26788). In smaller offices, anarbitrator may refuse to change an establishedpractice so that clerks can select choice leave onweeks in which six holidays fall if it means thatemployees in one craft will be treated morefavorably than employees in another craft (AIRS #20560).

Also, an arbitrator denied a union’s proposalto include the entire month of December as part ofthe choice vacation period on the basis ofevidence that the majority of offices in the districtin which the facility was located granted leave forone week only during December and mail volumeas well as customer usage of window serviceincreases during this period of time. He found

unconvincing union arguments that trainingadditional staff for window work, reducing thenumbers of clerks serving as acting supervisors,and considerations of equity justified giving clerksand maintenance employees an opportunity toselect choice vacations during the entire month ofDecember since carriers at the facility weregranted such an opportunity (AIRS # 39540). Seealso AIRS # 42763 in which an arbitrator rejecteda union’s proposal to include the period from thelast Saturday in November through December 25th

in the vacation leave year. The arbitrator foundthat there was no compelling reason to change theleave year language which already provided thatthe leave year extends from the fourth full serviceweek in April and continues through the third fullservice week in April of the following year, with theexception of the time between the end ofNovember and December 25th. He noted that theunion had not made reference to local MOUs inwhich parties had agreed to extend the vacationperiod to include December, and sufficient staffingwas necessary during the high volume periodsurrounding Christmas.

However, see AIRS # 28108-111 in which anarbitrator allowed the addition of the week ofThanksgiving and the period from December 25ththrough January 1st to be included in the choicevacation period (Also see AIRS # 26728 and34360). Moreover, another arbitrator includedlanguage in a local agreement that “[e]very effortwill be made to allow the period of Christmas Daythrough December 31 as a vacation period inaccordance with Item 12 of the LMOU” (AIRS #26811). In addition, an arbitrator expanded thechoice vacation period to start two days prior tothe New Year’s Day holiday (December 30ththrough November 30th) while rejecting theunion’s proposal that it start on December 25th(AIRS # 27128-31).

Another arbitrator ordered that the choiceleave period, which currently extended from thefirst full week of May through the last full week ofSeptember, also include the period betweenDecember 25th through January 1st. He found thatthere was no evidence showing that requiringmanagement to grant leave within negotiatedpercentages would inhibit its ability to efficientlymanage the facility during the holiday period. Thearbitrator cited evidence that in the past during thissame period of time management granted leavethat exceeded existing percentages and madesuch decisions arbitrarily and capriciously (AIRS #39925) Similarly, another arbitrator accepted a


proposal to add December 26th through December31st to the choice vacation period, which extendedfrom January through the last full week thatincludes November 30th. He was persuaded byevidence that employees are being given time offduring this period anyway, but it is not beingapproved on an equitable basis. (AIRS # 40576)

The following is an example of a short choicevacation period:

The Choice Vacation Period is designated asfrom the week in which Memorial Day fallsthrough the week in which Labor Day falls.

The following is an example of a lengthychoice vacation period:

The Choice Vacation Period shall begin thefirst full week of January and conclude the lastfull week of November. 10% of employees ineach section will be permitted leave during theChoice Vacation Period except during any fullweeks in the months of May, June, July,August and September when 15% ofemployees in each section will be permittedleave. In addition, 15% of employees in eachsection will be permitted leave during the weekin which Thanksgiving falls.

(Note that different percentages can be setfor periods around holidays such as Thanksgivingand Christmas. However, see AIRS # 35332where an arbitrator rejected a proposal to increasethe percentages off during those times.)

6. Vacation Start Day

The Determination of the Beginning Day ofan Employee’s Vacation Period

This item deals with whether an employeeshould start his or her vacation on the first day ofthe employee’s basic work week, at the start of theservice week which would be Saturday or at thestart of the calendar week which is Monday. If thevacation starts the day following the employee’stwo consecutive non-scheduled work days, thenan employee with fixed off-days will enjoy ninedays off on a week of vacation.

Failing to negotiate otherwise, Article 10,Section 3.E of the National Agreement will control:“The vacation period shall start on the first day ofthe employee’s basic work week.” In AIRS #

14264, the arbitrator upheld management’sproposal to have the employee’s vacation startdate as the first day of the employee’s basic workweek of the service week in which the employee isrequesting a choice vacation selection.

Some of the cases reviewed dealt with unionattempts to secure a start date followingemployees’ non-scheduled work days. In resistingsuch proposals, management showed concern forextended use of overtime and the denial to otheremployees of their choice vacation period (AIRS #6654 and 8052). However, in one case, anarbitrator upheld a provision that the vacationperiod shall start on the first day of the employee’sbasic work week and allowed employees to starttheir vacation days other than the first day of thebasic work week, if they so desired (AIRS #27697-98). He found that there was insufficientevidence to establish that there had been anysignificant scheduling or cost problems with thepast operation of this clause. In another case, anarbitrator accepted a union’s proposal to grantemployee requests for choice vacation period for“the entire period of 12/25-1/1, regardless of daysoff, or inclusion of weekends.” (AIRS # 39925)

Start After Non-Scheduled Days

Some proposals that have mandated a startdate following non-scheduled work days wererejected as inconsistent with Article 10, Section 3(AIRS # 6497, 6654, 8052). In addition, someproposals allowing employees to select theirvacation start day have been rejected (AIRS #6144, 6548, 8625, and 14264). In AIRS # 6548,the arbitrator noted Article 10, Section 3 states thatexceptions to the first day can only be made byagreement among the employee, a unionrepresentative, and the employer. In AIRS # 8625,the arbitrator stated that since no evidence wasput forth that exceptions had ever been requested,there was no basis for changing the currentarrangement. However, see AIRS # 27697-98discussed in the previous paragraph.

Also, where management policy has been togrant requests for start days following non-scheduled work days, a proposal requiring thatsuch requests be granted was rejected on thereasoning that the existing policy kept a certainamount of management flexibility whileaccommodating employees (AIRS # 8052).

It has been much easier to get approval forproposals stating that employees would not berequired to work non-scheduled work days and


holidays that happen to fall in conjunction withvacation (AIRS # 4941, 5232, and 20729). In AIRS# 4941, the arbitrator stated the ability of anemployee to plan vacation in conjunction with non-scheduled work days or holidays outweighed anyinconvenience to the Postal Service in refrainingfrom compelling the employee to work on thesedays. Also, see AIRS # 28108-111 in which anarbitrator accepted the local union’s proposal thatnon-scheduled days and holidays at the beginningand end of a vacation period will be considered asa part of the vacation period unless stipulated bythe employee.

However, see AIRS # 40098 in which anarbitrator rejected the same provision on the basisthat the union had not shown that any employeewith Sunday-Monday off days who had pre-arranged a vacation surrounding one of the three-day holidays had to actually work Saturday as aholiday or designated holiday.

Language requiring supervisors to avoidscheduling employees on non-scheduled workdays and holidays immediately preceding orfollowing vacation days has been allowed in orderto avoid grievances (AIRS # 5232).

Also, a local union has been successful inensuring that part-time flexibles’ vacation includesome weekend time. The arbitrator determinedthat it was fair to include a provision in the LMOUthat choice annual leave shall begin on Sundayand extend through Saturday for part-time flexibleemployees (AIRS # 26789-94).

7. Splitting Vacation Choice

Whether Employees at their Option MayRequest Two Selections During the ChoiceVacation Period, in Units of Either 5 or 10Days.

Locals usually negotiate the option foremployees to request up to 15 continuous days ortwo selections in the choice period in units of 5 or10 days. This provides the employee with options.(See Article 10, Section 3.D.3). However, it shouldbe noted that Arbitrator Mittenthal limited theseoptions when ruling that to the extent an LMOUallows an employee to make his initial selectionwithin the non-choice period, such clause isinconsistent with the National Agreement (AIRS #6931, national level, January 1986).

Some locals have restricted the right to splitthe vacation and require that the choice be a

continuous vacation. Their concern has usuallybeen that splitting by senior employees leavesjunior employees with far less attractive selections.Selection problems for junior employees may existregardless. If the number and percentages ofemployees permitted off during the choicevacation period are larger than the minimumrequired, (See Item 9) junior employees will getbetter selections.

Some locals have provisions far in excess ofthe minimum with the proviso that after the initialselection, any unused vacation slots are closed offand not available for any later selections.However, see AIRS # 13023. In that case, thearbitrator held that the union’s proposal to add aprovision to the LMOU providing that employeescould make additional selections during the choicevacation period as long as some slots wereavailable, had merit and was not inconsistent withthe National Agreement. He ordered that thefollowing language be included in the LMOU:

Requests for additional selections during thechoice vacation period will not beunreasonably denied, providing there areavailable slots. Requests for such leave mayonly be made after March 1 and after thevacation schedule has been posted byFebruary 15, as provided by Article 10.4.A.

Locals should note a few reasons why splitvacation choices have been rejected. First,proposals that imply guarantees of a choicevacation period in excess of the contractuallyprescribed limitations of Article 10, Section 3.D.may be rejected (AIRS # 6434, 6435, 8581,20539, 20493, 20494, 20495, and 36012).Language that allows a second round, but clearlymakes reference to the limitation set forth in Article10, have been found acceptable (AIRS # 6434,6435, and 20716, 26889, 27117-118).

Additionally, proposals that do not ensure theavailability of sufficient employees to run adepartment; for example, a proposal for leavechoices that groups employees by jobclassification, may be rejected (AIRS # 6521).

Finally, the local negotiating team shouldnote that a proposal should be adequatelysupported by evidence, or risk being rejectedbecause of lack of evidence showing a need forthe provision (AIRS # 6337). Similarly,management objections to a proposal have beendismissed because of lack of evidence as to whythe provision should not be included. In AIRS #


7338, the arbitrator rejected management’sargument that a proposal for a two-round selectionprocess was not necessary since managementintended to follow the procedure anyway. Lackingsubstantive evidence against the proposal, thearbitrator concluded the LMOU served aneducational purpose as well as defining theagreement of the parties, and therefore theprovisions should be included.

8. Convention Time and JuryDuty

Whether Jury Duty and Attendance atNational or State Conventions Shall beCharged to the Choice Vacation Period.

Union Conventions

The National Agreement Article 24, Section2, and Article 10, Section 3.F, deal with leave forattendance at union conventions. If the leaverequest falls within the choice vacation period andis submitted before the choice vacation scheduleis fixed, approval will be automatic. However,unless negotiated otherwise (see Item 20) it will becharged against the number of people permittedoff during the choice vacation period. If the requestis made after the choice vacation schedule hasbeen fixed, approval is not guaranteed.

Article 10, Section 3.F grants the right of adelegate to make another selection during thechoice vacation period in addition to anyconvention time during the choice period providedthe additional selection does not deprive any otheremployee of first choice for scheduled vacation.The negotiation of a provision that unionconvention time not be charged to the choicevacation period should eliminate the possibility ofdepriving someone of their choice selection (AIRS# 6529, 7369, 8573). Also, an argument that theMail Handlers Union obtained such a provision,coupled with the fact that no evidence showed thatthe provision burdened the Postal Service,persuaded an arbitrator to award inclusion oflanguage that attendance at national and stateunion conventions will not be charged against thechoice vacation period quota (AIRS # 40576). Inaddition, a pre-existing provision that employeeson jury duty, attending state or nationalconventions as actual delegates, or on militaryleave and union activities of two days or less will

not effect the number of employees that can beallowed annual leave during the choice vacationperiod, has been upheld against management’sargument that it was an unreasonable burden(AIRS # 20561). Also, see AIRS # 33389 for asimilar outcome.

There will be two National Conventionsduring this contract period, and the first one isscheduled for August 18-22, 2008. Remember thatpre-convention workshops, a Human RelationsConference and Division meetings are alsoscheduled on additional days close to the time ofthe convention. This should be kept in mind whennegotiating any provision in regard to leave forunion business.

Proposals on leave for union meetings orbusiness have usually been rejected as outsidethe scope of mandatory bargaining (AIRS # 7369,21871) or inconsistent and in conflict with theNational Agreement (AIRS # 20560 and 21888).

Jury Duty

Choice vacation has already been selected.An employee is notified of jury duty during achoice vacation period already selected. How tohandle this problem is a matter for negotiations. Itseems only fair to the individual that anotherselection of vacation during the choice period bepermitted.

Article 10, Section 3.F provides that the


employee may make another selection, providedthe additional selection does not deprive anotheremployee of first choice for scheduled vacation.Negotiation of a provision that does not chargejury duty to choice vacation would reduceproblems. The employee’s original selection wouldbe considered vacant and could be filled bysomeone else (See Item 4). The domino effectwould increase selection options of the employeecalled to jury duty.

9. Number Permitted Vacation

Determination of the Maximum Number ofEmployees Who Shall Receive Leave EachWeek During the Choice Vacation Period.

Minimum Number

Once the choice vacation period has beensettled upon one can compute the minimumnumber of people required off on leave by:

a. Multiplying the number of employees withless than 3 years of service by 2,

b. Multiplying the number of employees withthree years or more service by 3,

c. Adding those two figures together,

d. Divide the total by the number of weeks in thechoice vacation period.

This becomes the minimum number ofpeople that the employer must allow off duringeach week of the choice vacation period toaccommodate the requirements of Article 10 of theNational Agreement. Most locals attempt toimprove upon this minimum number. While werefer to this computation as producing the“minimum” number, locals cannot assume that alower number might not be awarded in arbitration(AIRS # 2659). Arbitrators have pointed to specificfacts in an installation showing that everyone didnot take all of their entitled leave during the choiceperiod. Consequently, even though the numberallowed off by Item 9 of the LMOU was lower thanthe computed “minimum”, no violation of Article 10occurred because no one who wanted their fullentitlement was turned down.

If the choice period is so unattractive that

employees leave “choice” slots empty and selectoutside the choice period or reserve their leave,the local should look at shortening, lengthening orsplitting up the choice vacation period(s) to bettermatch the demonstrated preferences ofemployees. Such demonstrated preferences willmake a very persuasive argument for change inItem 5.

Facility Size and Numbers Off

When determining how to select employeesto be off during the prime vacation period,arbitrators will take different factors intoconsideration. For example, in AIRS # 14272, thearbitrator rejected the union’s proposal thatselection of vacation during the prime time shouldbe on a seniority basis by craft. The reason forrejecting the proposal was because it wouldinfringe on the efficiency of the Postal Servicegiven the small size of the facility. The arbitratorthereby ordered that the following managementproposals for items 4 and 9 be accepted:

4. Leave selection shall be by seniority of allcrafts within the office, except rural carriers.

9. There shall be one employee off eachweek during the choice period with theexception of Item 8.

However, an arbitrator in AIRS # 13044adopted the following language when formulatingthe local leave policy with respect to the choicevacation period:

Requests for choice vacation periods shall begranted on the basis of seniority within thecrafts and a separate quota by tour, section,and station. The LSM operation shall bedefined as a section within each tour, as wellas mail processors will be a section withineach tour.

In addition, one arbitrator held that themaximum number of employees to be allowed offduring the choice vacation period was not adiscretionary decision for the Postal Servicemerely because of the size of the facility. Inholding such, the arbitrator stated that Article 30does not draw a distinction between small andlarge facilities nor do Article 3 concerns overridethe obligation to consider Article 30 negotiableitems (AIRS # 14273). Also see AIRS # 37245 in


which an arbitrator upheld a local union’s proposalthat a maximum of one employee shall be grantedleave during each week of the choice vacationperiod. He found unpersuasive the PostalService’s argument that the current systemallowing leave to be assigned at the discretion ofmanagement was necessary given the small sizeof the facility in which there was only one full-timeregular clerk and one part-time flexible clerk. Thearbitrator observed that the evidence showed thatcarrier craft employees, three of whom weresenior to the full-time regular clerk, were assignedthe first three choices of vacation. However,arbitrators may take into account the efficiencyneeds of the Postal Service when determining themaximum number of employees to be permittedoff during the choice vacation period. In AIRS #13029, the arbitrator adopted the followinglanguage:

No more than 3 employees will be allowed offat one time during the choice vacation period,except as follows: If three employees haveselected slots in each choice week and moreslots are required under Article 10.3.D.2 of theNational Agreement, a fourth employee maybe off during the choice vacation period tomeet this requirement.

In an attempt to meet the needs of theefficiency of the Postal Service, as well as toprovide some benefit sought by the union, thearbitrator in AIRS # 13025 determined that it wasreasonable to limit the number of employees offduring the choice period so as not to affect theefficiency of the Service. The following languagewas thereby adopted in accordance with thisconcern:

The maximum number of employees who shallreceive leave each week during the choicevacation period shall be two, except asfollows:

If two employees have selected slots in eachchoice week, and more slots are requiredunder Article 10.3.D.2 of the NationalAgreement, management will allow as manyas three employees off at one time during thechoice vacation period to meet thisrequirement.

Numbers Off by Occupational Groupsand Sections

Also, the Postal Service may attempt to limitthe number of employees permitted to take choicevacation on the basis of occupational group orskill. Arbitrators have been reluctant to change apre-existing provision that has worked well in thepast. For example, in AIRS # 20929, an arbitratorrefused to change a provision that allowed for 14%of maintenance employees to receive leave eachweek during the choice vacation by tour, byoccupation to one that prescribed the 14% to beby occupational group alone. He indicated that theService had not met its burden of proving that theprovision resulting in three out of five ElectronicTechnicians off, one out of two General Mechanicsoff, or one out of two Building EquipmentMechanics off at any one time constituted anunreasonable burden. The evidence showed thatthe present language had worked effectively overthe last 12 years and there was insufficientevidence to demonstrate that excessive overtimewas used because of numbers of maintenanceemployees off.

In addition, in AIRS # 20493, 20494, and20495, an arbitrator held that designation ofsections for taking leave during the choicevacation period as 1) window clerks, 2) the entireGMF workroom floor, 3) several stations, 4)maintenance, and 5) VMF did not constitute anunreasonable burden. He rejected the Service’sassertion that sections needed to be broken downfurther into schemes for vacation selection. Hefound unpersuasive Postal Service evidence thatplan failures occurred during a one week period.However, see AIRS # 20382 in which an arbitratorheld that the combining of two distinct titles forvacation purposes, i.e., Level 5 Motor VehicleOperations and Level 6 Tractor Trailer Operators,resulted in an unreasonable burden tomanagement. He ruled that the two occupationalgroups be separated for vacation purposes. Also,see AIRS # 34360 in which an arbitrator rejected aunion proposal that leave be administered byprincipal assignment area only. Instead, heaccepted management’s proposal that leave be byshift as well as section.

Moreover, in AIRS # 44499, an arbitratorrejected a union’s proposal that for employees inthe maintenance craft leave should beadministered by building, by occupational group,with a minimum of one employee allowed off, by


building, by occupational group. He found that ifthis proposal were accepted, the number ofemployees off on annual leave would doublewhere there was a complement of 12 maintenanceemployees and such a result would be too high formanagement to meet its maintenancecommitments. However, the arbitrator indicatedthat management’s practice had been to allowadditional employees to take choice vacationabove the current provision that provided for oneElectronic Technician and one non-ElectronicTechnician off each week during prime timeperiods. Therefore, he ordered an amendment tothe effect that consideration will be given to otherleave requests depending on operationalrequirements. In AIRS # 38355, an arbitratordenied a union’s proposal to change existinglanguage providing that choice vacation leaveshall be granted by seniority within pay location toprovide that choice vacation leave shall be grantedby seniority by tour and occupational group andlevel. The arbitrator indicated that he would notset aside a prior arbitrator’s award in an impassearbitration regarding the identical provision at thisfacility since there had been no substantivechange in circumstances and the arbitrator hadalready considered arguments posed by the union.The union contended in both arbitrations thatreliance on pay locations adversely affected theseniority rights of employees. However, in theprior award, an arbitrator determined thatmanagement’s creation of new pay locations waswithin its Article 3 rights and in any event the useof new pay locations merely enhanced the value ofseniority for some other employees in relation tolower graded, less senior employees in their paylocation (AIRS # 32312).

In another award, an arbitrator rejected aunion proposal to create another section based onoccupation for vacation selection purposes. Theunion argued that the existing LMOU provisioncreated an unfair disparity since it contained aseparate section for “office clerk” at the main postoffice whereas no corresponding sectiondesignation existed for the other facility covered bythe LMOU. The arbitrator found, however, thatsince the General Clerk position at the otherfacility didn’t perform exclusively office work, therewas no need for a separate “office clerk” section(AIRS # 39019).

Another arbitrator accepted a change to anLMOU that affected one station of a P&DC andprescribed that scheduling for overtime, vacations,and holiday coverage be done by tour. He

rejected the Postal Service’s argument that due tothe small number of personnel at the facility, whichincluded four window clerks and two relief clerks, itwas not practical to allow the change. Thearbitrator found the language to be reasonableand not unduly burdensome on management’sflexibility to assign staffing (AIRS # 39602).

Advantages of Percentages

The length of the choice vacation period(Item 5) is often tied directly to the number ofpeople or the percentage of people that are goingto be allowed off during that period. What happensto one depends on what can be agreed to on theother.

Every effort should be made to provide for amaximum number of employees to be off eachweek during the choice vacation period.

Percentages usually turn out to be beneficialin this regard because they properly account forthe changing size of various sections and theoffice as a whole (AIRS # 4866). As an officegrows, a percentage will permit an increasingnumber of employees leave, while a fixed numberwill become inadequate (AIRS # 6101). While anarbitration is likely to grant an upward adjustmentin a fixed number when the complement hasincreased (AIRS # 7234), the union would have towait until the next negotiation period to get anincrease.

In an office in which the complement fellbetween the period of negotiations and the date ofthe impasse arbitration hearing, the union arguedthat the higher complement existing duringnegotiations should be used in determining anappropriate fixed number of employees to begiven leave. The arbitrator stated the percentageconcept was warranted when determining thenumber of employees who should be grantedannual leave during the choice and non-choiceperiod because the percentage concept wouldaccommodate any complement variations. Thisoffice had only one maintenance craft employeeand one special delivery craft employee. Thefollowing language was adopted by the arbitratorfor the purpose of determining the maximumnumber of employees to be off during the choiceand non-choice period:

A. A maximum of 16.67% of the employees inthe Clerk Craft, one (1) employee in theMaintenance Craft, and one (1) employee in


the Special Delivery Craft during the choicevacation period.

B. A maximum of 10% of the employees in theClerk Craft, one(1) employee in themaintenance Craft, and one(1) employee inthe Special Delivery Craft during the non-choice vacation period. (AIRS # 13016)

Problems with Percentages

Locals should note a few problems innegotiating for a fixed percentage. Numbers thatare unreasonable at the outset will be rejected(AIRS # 4861, 8479, 6480). When a proposedpercentage, combined with routine absences dueto sick leave, jury duty, etc., could leave a sectionunable to perform its duties, it may be rejected(AIRS # 8479). Also, absent a showing that a long-term provision giving management discretion todetermine, by craft, the number of employees perweek to grant leave, has resulted in employeesforfeiting leave or in complaints or grievances, anarbitrator may determine that there is nocompelling need for a change to percentages(AIRS # 32946).

Percentages also may be rejected wheresections or offices are so small and staffed withsenior employees that the selections of thesesenior employees while within the allottedpercentages for the installation could leave thesection or office unable to perform its duties (AIRS# 4861 and 4866). One arbitrator solved thisproblem by holding that the total number ofemployees in a section or tour would determinethe maximum number of slots available during thechoice vacation period (AIRS # 4947).

Also, a local must be sure to presentsufficient evidence to substantiate its request for afixed percentage. One arbitrator rejected a unionproposal for a fixed percentage and used a fixednumber instead, stating that absent a persuasivereason to do otherwise, a fixed number would beused because it was easier to administer (AIRS #7337).

Part-Time Flexibles and Percentages

Finally, locals should be careful of the impactpart-time flexibles can have on a proposal for anincrease in the fixed percentage. One arbitratorallowed an increase because managementrecently had increased its number of PTFs (AIRS# 7255). Conversely, one arbitrator reasoned that

increased reliance upon PTFs, due to largernumbers of more experienced senior clerks beingoff at the same time, could itself result inimpairment to the efficiency or cost of operationswhich would justify rejection of a proposal for ahigher fixed percentage (See AIRS # 6114). Also,management can argue that the number of part-time flexible clerks has decreased in number andtherefore, it has less flexibility to cover vacanciesresulting from employees taking annual leave(AIRS # 32538).

If you decide upon a percentage, you shouldconsider the problem of rounding off. If the LMOUis silent, the standard method of rounding willprobably be presumed (.5 or greater is rounded upto next highest integer, less than .5 is dropped).Most locals attempt to get an agreement to roundupward any fraction (no matter how small) to thenext highest integer. Some LMOUs drop allfractions. Note that in a recent award in AIRS #32673 the arbitrator upheld a provision requiringthat fractions be rounded up againstmanagement’s argument that the provisionconstituted an unreasonable burden. But see AIRS# 39519 in which an arbitrator denied a localunion’s request to add language providing for astandard method of rounding on the basis that theparties have successfully worked out problems inthe past and such language may create a potentialof “internal conflict.”

This discussion of Item 9 began with aminimum number formula. The justification fornegotiating a number or a percentage that wouldpermit more people off than the “minimumnumber” formula is to provide everyone with adecent vacation selection, even those choosinglast.

Benefits to Management

There are advantages to management aswell. There are peak periods and periods wherethe employer finds itself with too many employees.During periods of low volume, managementshould be willing to encourage people to takeleave. Management can do so by having a largernumber or percentage of people off during thoseparticular weeks.

If a local has a history of people not choosinga full vacation during the vacation planningprocess, but reserving substantial amounts ofleave for use during the course of the year, itshould be pointed out to management that havingan attractive vacation planning calendar with


sufficient slots will encourage people to makevacation plans at the beginning of the year. Thus,management can plan for absences. If large banksof annual leave are being reserved, there willundoubtedly be time taken off with very littleadvance notice and very little opportunity formanagement to plan. Some locals havenegotiated substantially larger numbers thannecessary for the above reasons with anagreement that once the choice vacation planninghas ended unused slots will be blocked off. Thusmanagement is relieved of further obligation toallow leave for that large number of employees.

Other locals have negotiated percentages ornumbers that come very close to the minimum inexchange for a guarantee that should any of thoseslots go unfilled or become vacant during thecourse of the year anyone requesting thosevacancies will get the time off. Such guaranteed“incidental leave” provisions have beendetermined by a national level arbitration to beconsistent with the National Agreement (AIRS #6931).

Rebutting Management Arguments

Management’s arguments concerning“excessive cost”, “inefficiencies” and “staffingdifficulties” do not always find a sympathetic ear inimpasse arbitration (AIRS # 263, 503, 549). Stillthe local must rebut those managementallegations and show compelling reasons for thelocal union proposal (AIRS # 4402, 26796-97,27944). Also, locals should be prepared with datato show the eligibility (2 or 3 weeks) of eachemployee to a choice vacation selection (AIRS #263, 2659). It is advisable to show total leave thatwill be earned during a year plus any carry-overfrom a previous year.

Examples of some successes by local unionsin rebutting management claims follow. In onecase, a union showed that percentages off in theLMOU were not being adhered to for specificmonths, but rather were increased routinely, andno evidence was presented by management toshow that granting an increase in the percentagefor these months from 10% to 12% would harm theService’s operations (AIRS # 27427-30). Also,another local union showed that an increase in thepercentages of leave for Clerk Craft employeeseach week during the choice vacation period waswarranted in order to prevent forfeiture of leave byemployees who have earned a considerableamount of leave due to their length of service. The

arbitrator said a 1% increase was justified due tothe “undisputed age of the work force” and wouldnot sacrifice productivity and efficiency of postaloperations (AIRS # 33490). But see AIRS # 32538in which an arbitrator denied a union’s proposal toincrease percentages of the active clerkcomplement on annual leave. He relied onevidence that there had been difficulties indispatching mail on time given the present workcomplement and present annual leavepercentages. The union had sought the increasein percentages off to benefit employees with a highlevel of seniority.

Note that arbitrators have indicated that theparty seeking a change in an LMOU provisionbears the burden of proving that the currentprovision does not work or presents a problem thatneeds to be corrected (AIRS # 32242, 33424,33379). For example, an arbitrator found that theunion did not meet its burden of proving that aproposed increase from a maximum of oneemployee off to a maximum of 12% of the totalnumber of each craft’s employees was justified.He cited the fact that the existing LMOU provisionon annual leave had only been in effect for onecontract term, there had been no substantialchanges in the circumstances existing at a facilityunder the existing provision, the facility was small,and the Service had shown that a substantialportion of the workforce would be off at any giventime if the union’s proposal were accepted (AIRS #33424). Also, another arbitrator rejected a localunion’s proposal to increase the number of CFSclerks that may be on annual leave during thechoice period by one based on the fact that thenumber of CFS clerks had doubled since theexisting provision was negotiated. Relying onevidence that showed that no CFS clerk wasdenied a request for vacation leave during thechoice period for the 1999 leave year and the factthat no CFS clerk testified that he or sherequested but was denied leave during that time,the arbitrator found that the union failed to showthere was a problem with the existing provision.However, he warned the Postal Service that it wason notice that it could not rely on the LMOUprovision to deny a clerk leave during the choiceperiods if he or she is entitled to leave underArticle 10.3.D (AIRS # 33379).

In addition, an arbitrator rejected a union’sproposal to increase the percentage of employeesallowed to vacation selections per week during thechoice period from 15% to 20%. In AIRS #42673, the arbitrator relied on evidence that the


current percentages appeared to be workingadequately and employees were not losing annualleave opportunities necessarily. He foundunconvincing the union’s argument that theexisting provision had only been in effect for onecontract term, whereas a prior provision allowing20% had been in effect since the late 1980s, andthe reduced percentage was only the result of aconcession to retain a general overtime desiredlist that is not in effect now. The arbitratorremarked that union attempts to obtain what hasbeen given back does not constitute a basis forreinstating prior provisions.

Moreover, locals should be prepared forPostal Service arguments that a presently effectiveprovision now constitutes an unreasonableburden. It should be remembered that the Servicehas the burden of proof in these instances.Arbitrators will not delete a pre-existing provisionbased on speculation as to anticipated automationor reductions in staff or undocumented or poorlydocumented cases (AIRS # 20658, 20765, 20766,21668,28921-2, 32509,and 38602). However, theywill be persuaded by unrebutted evidence thatstaff losses will actually occur or a change from anumber to a percentage of employees off isnecessary to operate a small office (AIRS #20378, 20548, and 26724). But note that anargument may not be successful that seeksreduced numbers on leave because of additionalemployee absences as a result of requirements ofthe Family and Medical Leave Act, the DependentCare Sick Leave provisions of the agreement, andmore widely anticipated military reserve call-ups(AIRS # 26686-88, 32673, and 39275).

Increases by Occupational Group orSection

In addition, while all employees are permittedtime off during the choice vacation period, in somesituations an arbitrator might decide that themaximum number of employees off in certainoccupations should not be increased. Forexample, in AIRS # 500407 and 500408, thearbitrator held that Electronic Technicians hadspecialized knowledge and that currentautomation would require that more ElectronicTechnicians be available during the prime vacationperiod. Accordingly, the arbitrator denied theunion’s proposal that the maximum number ofElectronic Technicians allowed off during the primeperiod be changed from 1 to 3. The arbitratorfound no merit in the union’s argument that since

the number of Electronic Technicians increasedthe number permitted off should increase. Therewas also no evidence available to indicate thatElectronic Technicians had been unreasonablydenied time off during the prime vacation period. Inanother case, an arbitrator denied a unionproposal to allow an increase from 10 to 15% offfor customer services employees (AIRS # 28417).The Postal Service agreed to the 15% increase formail processing employees, but refused it forcustomer services employees. The arbitratorfound that implementation of the union’s proposalwould result in excessive overtime, the need tohire new employees, and would adversely affectmanagement’s ability to serve summer customers.

Also, see AIRS # 34360 in which an arbitratorrefused to allow more than 25% of schemequalified employees to be off during the sameleave week, rejecting the union’s proposal to allow50% of clerks utilized on a particular scheme to beoff at any one time. However, see AIRS # 28544 inwhich an arbitrator increased the number ofElectronic Technicians off at any time during thechoice vacation period from 1 to 3. He relied onthe fact that there had been a dramatic increase inthe numbers of ETs and they could not take all theleave to which they were entitled during the choiceperiod because of the one person off limit.

Reductions by Occupational Group orSection

Other awards show that an arbitrator mayreduce the number of employees off in certainoccupations from a pre-existing provision. In AIRS# 26724, management’s proposed change to anexisting LMOU provision which limited the numberof Maintenance Support Clerks off to two per weekand the number of Electronic Technicians to one aweek was considered reasonable. The PostalService argued that the existing language of theLMOU created an unreasonable burden onmanagement in seeking to cover positions withcurrent staffing. It merely produced testimony ofthe Manager of Maintenance Operations that newcomputerized systems have resulted in twice asmuch work for Maintenance Support Clerks andETs. The arbitrator noted that though there wasnot “strong documentary evidence” to supportmanagement’s assertions, she would rely on themanager’s testimony since he was credible andhis statements about the need to deal with six newsystems were unrefuted.


However, another arbitrator deniedmanagement’s proposal to change smalleradministrative groups for vacation purposes tolarger occupational groups (AIRS # 27697-98).Though the Postal Service provideddocumentation to show that existing groupsallowed more than the 10% minimum provided bythe LMOU to be on leave at certain times andmanagement’s proposal was found by thearbitrator to be a reasonable approach todetermining leave usage, he determined that theService had not met its burden of establishing thatthe pre-existing provision constituted anunreasonable burden. The arbitrator cited the factthat there was no showing that when more than10% of the employees were on leave excessiveovertime, operational difficulties or other adverseconsequences occurred. In another award, anarbitrator rejected management’s proposal toreduce the percentages of Motor Vehicleemployees that were allowed off during variousperiods of the choice vacation period. Thearbitrator relied on the fact that no evidence wassubmitted to document any change in operatingconditions since the time the existing languagehad been negotiated, with the exception that theMVS complement had been reduced in size.However, he noted that since leave wasdetermined on the basis of a percentage, not a“static” number, the number of employees allowedoff on annual leave would be reduced to the sameextent as the reduction in complement (AIRS #43196).

It should be noted that an arbitrator will notnecessarily be persuaded to increase thepercentage of one craft off during the choicevacation period by an argument that anothercraft’s percentages off had been increased. InAIRS # 20989, an arbitrator refused to increasethe percentage of Clerk Craft employees off duringgiven periods to match what Maintenance Craftemployees had been granted. He reasoned thatthe union had not established that a change wasnecessary since there was insufficient evidence toprove that craft employees that desired annualleave were not granted leave when they desired it.

Effects of Leave Carryover and LeaveSell-Back

There may be concerns that the allowance of440 hours of carryover leave and the provision toallow 40 hours of annual leave to be sold back ifan employee is at the maximum carryover ceiling

will be used as a management excuse to denymore “incidental” leave and attempt to reduce thenumber of vacation slots. Such a rationale iswithout foundation. Employees who are well underthe maximum carryover cannot be denied leavebased solely on the fact that their leave balance islow. Similarly, employees are entitled to use all oftheir annual leave and are entitled to plan to useannual leave for vacations. No rules can be setthat will force employees to build up their leave tothe maximum carryover or sell it back.

The purpose of the carryover and sell backprovisions is to avoid any loss of leave whilepermitting employees with special concerns tobuild-up a reserve. For example, a womanplanning to have a child next year may build-up anannual leave reserve this year to provideadditional paid leave during her maternityabsence. An employee nearing retirement maybuild-up leave to increase his/her terminal leavepayment to help fill the gap before regular annuitychecks begin.

In short, there is no reason that the carryoverand sell back provisions should affect localnegotiations - short of a demonstration that largegroups of employees intend to forgo vacationselections to build-up their leave balances. Evenwith such a demonstration, locals shouldremember they are negotiating for four leaveyears. The fact that an employee (or groups ofemployees) forgoes vacation in one year tobuildup a reserve does not mean that he/she willnot need to take vacation in the other year.

10. Vacation Notices

The Issuance of Official Notices to EachEmployee of Their Approved VacationSchedule

In addition to the schedule posted on thebulletin board, locals have negotiated for theemployee to receive some sort of notice, such asa duplicate copy of the vacation selection request

This LMOU will have to deal with four leave years(2008-2011). The next LMOU negotiations willoccur in the spring of 2011 when most employeeswill already have set their 2011 vacation plans.

Remember


with an approval signature, a Form 3971 with anapproval signature, or a copy of the actual postingof the vacation schedule.

In AIRS # 7349, Arbitrator Snow added thefollowing provision to the LMOU, ensuring noticeto both the employee and his or her supervisor ofthe employee’s reserved annual leave:

The Union and Employer are agreed that oncethe vacation assignment sheets have beencompleted, the employee shall prepare Form3971 in duplicate for each reserved period onthe assignment sheet. Each employee willpresent a form to his or her immediatesupervisor for signature and verification. Theduplicate copy will become the employee’sreceipt that his or her supervisor has beenadvised of the employee’s reserved annualleave.

Local unions should note that where therealready exists a method of notification, thearbitrator may reject an additional method ofnotification, such as a vacation chart or calendarsystem, as unreasonable (AIRS # 7348, 27427-30). However, locals should make sure that astandard practice, such as notification by Form3971, is clearly stated to be the medium ofcommunication in the LMOU (AIRS # 7348).

11. Leave Year Notice

Determination of the Date and Means ofNotifying Employees of the Beginning ofthe New Leave Year

A number of Local Memos require theposting of a notice on the bulletin board or in thelocal Post Office newsletter. Some locals haverequired written notice to the individual employee.

Aside from the Local Memorandum ofUnderstanding, locals have used their ownpublications to inform employees about upcomingvacation planning: when it will take place, whenthe leave year will start, the specific dates andweeks in which holidays fall, etc. Such efforts bythe local remind employees that they enjoy theirvacation as a result of the efforts of their nationaland local union.

12. Non-Choice Vacation

The Procedures for Submission ofApplications for Annual Leave DuringOther Than the Choice Vacation Period

This item gives the local the opportunity tonegotiate a procedure for granting of annual leaveduring other than the choice vacation period. Thisitem usually ties in with Item 4 as a way toformulate a complete local leave program. Thereare generally two methods that most locals havenegotiated.

1. Seniority - The mechanisms here are a littlemore difficult to administer. Usually themethod calls for all leave requests to be helduntil “x” number of days prior to the particularweek at which point the senior employeehaving submitted a request will be grantedthe additional leave.

2. First come, first served - meaning that thefirst person to submit a Form 3971 (after thebeginning of the leave year) or some otherrequest form will be granted the leave.

While it is usually preferred to do things byseniority, it certainly is much easier to administerfirst come, first served. It is common under bothmethods to specify a response time in which

Leave Year Begins Ends

2007 PP 02-2007 PP 01-2008Jan.6, 2007 Jan.4, 2008

2008 PP 02-2008 PP 01-2009Jan.5, 2008 Jan.2, 2009

2009 PP 02-2009 PP 01-2010Jan.3, 2009 Jan.1, 2010

2010 PP 02-2010 PP 01-2011Jan.2, 2010 Dec. 31, 2010

2011 PP 02-2011 PP 02-2012Jan.1, 2011 Jan.13, 2012

Note: There will be 27 pay periods in leaveyear 2011.


management must notify the employee concerningthe disposition of the request (AIRS # 512, 541,549, 572, 2955).

The following is an impasse resolution on thisparticular item:

Application for leave outside choice period andvacant periods during the choice period shallbe on appropriate form in duplicate withoriginal to be returned to the employee withinthree days providing application is submittedat least seven days prior to the first day ofapproved leave. Such leave, if approved, willbe granted on a first come, first serve basis(Central Region Impasse Resolution).

It should be noted that in a national levelaward, Arbitrator Mittenthal ruled that provisionsallowing for initial selection of annual leave duringthe non-choice period are inconsistent with theNational Agreement (AIRS No. 6931). Also, see arecent award in AIRS # 36126 which relies on thisaward as well as the language of Article 10 inrejecting a union’s proposal to allow annual leaverequests to be submitted for the non-choice periodfirst.

Advance Notice

Attempts to reduce the amount of advancenotice that must be given by an employee whenrequesting incidental leave, as well as reducingthe time period within which management mustrespond have met with limited success. Arbitratorshave generally held as unworkable LMOUprocedures which require the Postal Service torespond to employee requests within twenty-fourhours or forty-eight hours.

Arbitrators have emphasized that suchprovisions unduly restrict the Postal Service’sdiscretionary rights in granting incidental leaveunder Article 10, Sections 3 and 4 (AIRS # 6115,6778, 8469, and 20892). Moreover, an arbitratorrejected a union’s proposal to require thatincidental leave on a day-to-day basis beautomatically granted up to agreed-uponpercentages (15%) upon no less than 48 hoursnotice prior to the time of the requested leave. Hereasoned that there was “no inherent right to lastminute annual leave.” Instead, he found that theexisting requirement based on five calendar dayadvance notice was reasonable given the needs ofmanagement to manage its operations. (AIRS #42673)

However, several arbitrators have approvedprovisions allowing applications for incidentalleave with twenty-four hours advance notice, andrequiring the Postal Service to approve or denythe request within twenty-four hours (AIRS # 4904,and 20915, 20916, 20917, 20918, 20919, 20920).In addition, in one of these cases, the arbitratoralso upheld a provision allowing for applications ofannual leave of six hours or less to be given withone hour of advance notice and requiring theService to approve the leave not less than 30minutes prior to the effective time of the requestedleave (AIRS # 20915, 20916, 20917, 20918,20919, 20920). These provisions also providedthat management’s failure to notify the employeewould be considered automatic approval (AIRS #20915, 20916, 20917, 20918, 20919, 20920).Another arbitrator adopted a union’s proposal torequire that employees be notified of thedisposition of requests for annual leave inincrements of less than 40 hours within 48 hours,and lack of notification within that time constitutes“automatic approval.” He indicated that it is goodmanagement/labor relations to process requests ina timely manner and 48 hours is not anunreasonable amount of time to do that. (AIRS #39752)

Another arbitrator accepted a provision that ifno action is taken by the end of an employee’stour prior to the day of requested incidental leave,such leave shall be approved. He ruled specificallythat the provision for automatic approval ofincidental annual leave when the time periods toapprove or disapprove are not met is notinconsistent or in conflict with the NationalAgreement (AIRS # 27080). In addition, see AIRS# 28108-111 in which an arbitrator placed aprovision in a LMOU that provided that automaticapproval would occur if an employee was notnotified 14 days in advance of the first day of theleave requested. However, see AIRS # 20892,20894 and 34360 in which provisions allowing forautomatic approval after a limited period of timewere rejected.

Locals may expect greater success with aseventy-two hour time period limitation. In AIRS #7599 and 21034, the arbitrators granted demandsfor automatic approval of leave requests afterseventy-two hours from submission. In the first ofthese two cases, if the immediate supervisor didnot act upon the request within the first twenty-fourhours of the 72 hour period, the employee had theright to go to a higher level of supervision. Alsosee AIRS # 32538 in which an arbitrator accepted


a union’s proposal that supervisors process all PSForms 3971 within 72 hours. In addition, anarbitrator in AIRS # 34984 determined that aprovision requiring that management approveapplications for leave in units of less than oneweek or a full week so long as the maximumallowed number of employees were not on leaveconstituted an unreasonable burden to the PostalService due to scheduling problems caused bylast minute call-ins and the claimed right to submita 3971 during the course of a tour and then leavework. He reasoned that there was a right toincidental leave but it was subject to advancenotice and then directed that the language beamended to require approval upon submission ofan application within 72 hours prior to thebeginning of the tour of the requested leave date.

However, see AIRS # 32242 where anarbitrator rejected a proposal seeking a change ina provision to require that if the Postal Service failsto return a copy of a signed request to anemployee indicating that it is approved ordisapproved within 72 hours of submission, theleave shall be considered approved. The arbitratorruled that the union failed to meet its burden ofproving that the change was necessary to remedya significant problem that needed correcting. Forexample, the union argued that the current systemsubjected employees to hardships because ofsupervisors’ failure to approve leave requests in atimely manner but failed to provide witnesses’testimony to describe hardships such as missedvacation opportunities, inability to care for sickrelatives, or forfeited annual leave. Also see AIRS# 42763 in which an arbitrator denied a unionproposal to reduce the amount of time withinwhich a supervisor has to deny a request forincidental annual leave of a fraction of a day ormore from five calendar days to 48 hours. Thearbitrator relied on the fact that the union had notshown that there were actual problems involvingindividuals that were handicapped or prejudiced byexisting procedures. Moreover, in AIRS # 40576an arbitrator rejected a union proposal to change aprovision limiting submission of leave requests toTuesday of the week prior to the desired leave andrequiring that they be answered by Thursday ofthat week or they will be considered approved.The arbitrator determined that the union’sproposal, that leave requests not answered withinthree days of submission will be consideredapproved, should not be granted since there wasno “real evidence” that existing language was notworking and the evidence showed that work

schedules are made up on Wednesday of eachpreceding week.

In another case, AIRS # 20722, an arbitratorupheld a short notice leave provision againstmanagement’s assertion that it created anunreasonable burden. However, he held that sameday requests constituted an unreasonable burden.In addition, an attempt to require that leaverequests submitted 30-60 days in advance begranted on a first-come, first-served basis hasbeen rejected by an arbitrator as infringing onmanagement’s discretion under Article 10.3.D.4(AIRS # 27030-34). Also, a proposal thatemployees will be allowed to select guaranteedtime off, up to the amount credited for the comingyear on their pay checks, following the choice signup during the period of non-choice leave wasrejected because it infringed on management’sdiscretion to approve leave and was not supportedby a preponderance of the evidence (AIRS #28182). Moreover, see AIRS # 26756 in which anarbitrator disapproved of a union’s proposal thatleave requests made with at least seven daysnotice be granted subject to certain percentagelimitations that might be on leave in any week.Also, note that in AIRS # 39833 an arbitratorrejected a union’s proposal to require that aninstallation head honor all requests for vacantweeks that are submitted seven days in advanceof the leave period, and to provide thatmanagement make every effort to grant requestsfor vacant weeks submitted less than seven daysin advance of the leave period. The arbitratorfound that there was no evidence presented toshow that the current provision caused an unduehardship on bargaining unit members; i.e., byshowing unreasonable denials of incidental leaveor actual leave forfeiture by employees.

However, an arbitrator denied a managementproposal to prohibit an employee from making anannual leave request “no earlier than 60 days inadvance and no later that the Tuesday prior to theservice week in which annual leave is desired.”She found the proposal was unworkable becauserequests for leave may occur at the last minute asin the case of home or car repairs and requests inadvance of 60 days prior to taking leave should behelpful to management (AIRS # 26977). Also seeAIRS # 38359 in which an arbitrator addedlanguage requiring that Forms 3971 for incidentalleave be submitted not more than 21 days nor lessthan three days before posting of the followingweek’s schedule in an existing LMOU whichalready contained the provision that “any request


not acted upon within 48 hours shall beconsidered ‘guaranteed approved leave.’”

In addition, a proposal to increase the“window” period in which a supervisor is requiredto consider an application for incidental leave from15 to 60 days before the first day of leaverequested has been allowed as an addition toexisting language that requests will be approvedor disapproved by a supervisor within three days(AIRS # 27128-31). (But see AIRS # 26795 inwhich an arbitrator rejected a union proposal toextend the period for requesting incidental leavefrom not more than 31 days to not more than 90days in advance.)

Percentages Permitted

In conjunction with Item 4 many locals havesuccessfully negotiated a number or percentage ofemployees permitted leave during the non-choiceperiod. Although some impasse arbitrators haveapproved such proposals, locals are more likely togain such a provision in direct negotiations.

The Postal Service has declared manyLMOUs that provide for “guaranteed” approval ofleave requests up to the number or percentageestablished to be “in conflict” with the NationalAgreement. Earlier attempts to achieve a“guarantee” provision through impasse arbitrationdid not meet with much success. (AIRS # 512, 539and 577). However, in a national level casedecided in 1986 (AIRS # 6931) the arbitrator foundthat such non-choice vacation period clauses orincidental leave clauses are not “inconsistent or inconflict” with the National Agreement. Becausethis is a national level arbitration, this interpretationis binding on regional level arbitrators.

In AIRS # 13036, a regional level arbitrator,relying on the national award by ArbitratorMittenthal, ruled that the proposal for a percentageof employees to be allowed off during the non-prime time was both arbitrable and negotiable. Thearbitrator summarized Mittenthal’s award asmeaning that the subject of the percentage ofemployees off during the non-prime time periodwas not precluded from negotiation even if it wasnot specifically mentioned as one of the 22 items.The union’s proposal addressed an issue that wasneither inconsistent with nor varied the terms ofthe National Agreement. Because the parties hadmade offers and counter offers during localnegotiations and reached impasse, the matter athand was arbitrable.

In addition, see AIRS # 26733-36 in which an

arbitrator ruled that a proposal to allow a fixedpercentage of employees off on incidental leavewas within the scope of negotiable items and thuswas arbitrable. He then accepted the proposal onthe basis that it had been implemented effectivelyat other facilities in the region. Also, see AIRS #32561 where an arbitrator ruled that percentagesof employees off during the non-choice vacationperiod “belongs as an integral part of Item 12negotiations.” He rejected the Service’s argumentthat this item was limited to how applications aresubmitted since “[t]he intention of the contract wasto permit the local parties to negotiate meaningfulnon-choice leave provisions.” In addition, localsachieving “guarantee” provisions havesuccessfully enforced such provisions in rightsarbitration (AIRS # 594, 1444 and 1984). But,several recent awards in AIRS # 33168 and 32409determined that proposals requiring a minimum of12% of employees to be allowed off during thenon-choice period for each pay location wereoutside the scope of negotiable items in Article30.B.4.12.

In several cases, the union has beensuccessful in obtaining, retaining, and increasingfixed percentages of employees allowed to be offduring the non-choice period. In AIRS # 14677, thearbitrator held that the union’s request to changethe incidental leave policy so that it would be morecongruous with the choice vacation period policyhad merit. In looking at other LMOUs thataddressed this concern, the arbitrator held that11% of employees could be off for incidental leaveand that employees should provide managementwith advance notice of the requested leave inorder to adjust schedules based on the absence ofemployees on leave. The notice to be providedwas two days advance notice.

In AIRS # 20623, the union’s proposal toincrease the percentage of clerks off on annualleave during the non-choice period from 11% to13% was granted by an arbitrator. The arbitratorheld that the union had clearly established a needfor its proposal not only to provide additionalemployees time off, but to provide employees with“additional control over and predictability of theiruse of annual leave.” Then, in AIRS # 21365, anarbitrator upheld a provision requiring the Serviceto allow 15% of employees off for non-choiceleave against management’s attempt to prove thatit created an unreasonable burden. He found thatthe evidence was too inconclusive to show that the15% guaranteed leave provisions were the causeof delayed mail and use of overtime at the facility.


The arbitrator in AIRS #26725 granted aprovision that provided that the percentage ofemployees to be granted annual leave outside ofthe choice vacation period should be no less than12%. She found that though there was a need toaccommodate supervision in its schedulingproblems, this should not be done to thedisadvantage of members of the workforce. Thearbitrator also indicated that the union’s proposalwould expand the options available to employeesfor vacation leave outside the choice period andthereby reduce the number of leaves that wouldbe taken during each week of the choice period. Inaddition, the arbitrator ruled that the union’sproposal was not inconsistent with the NationalAgreement.

An arbitrator in AIRS # 32561 determinedthat 3% of the employees at the facility, that equalsone person’s hours, should be allowed to be onannual leave during the non-choice period.However, he rejected the union’s proposal that 6%of the employees, or two people, should beallowed off despite a union contention that in thepast there had been no problem with twoemployees being on leave at the same time. Hefound that a reduction in the workforce and achange in mail operations had occurred, andtherefore circumstances were no longer the sameand it would amount to speculation as to whethertwo people could be off at one time withoutaffecting operations. In AIRS # 41167, anotherarbitrator accepted a union’s proposal to allow 8%of the clerk workforce to be off on leave outside ofprime time, and allowing one additional clerk to begranted leave in the event the formula reaches .4or more of an employee. He determined that theproposals were necessary to more clearly definematters in the leave program and appeared to bereasonable.

In other cases, arbitrators approved aprovision allowing a minimum of one clerk craftemployee leave outside the choice vacation periodsubject to operational needs of the Service (AIRS# 20622), and provisions requiring that the numberof employees off during the non-choice period bemeasured as a percentage of the complementrather than by numbers of employees (AIRS #13016, and 21871). Moreover, while anotherarbitrator rejected a provision to increase thenumber of maintenance employees on incidentalleave by administering it on the basis of buildingas well as occupational group, he added languageto the LMOU to the effect that “[c]onsideration willbe given to other leave requests depending on

occupational requirements.” (AIRS # 44499)Also, in a rights arbitration, an arbitrator

determined that a Step 2 settlement thatprescribed that percentages used for leave duringchoice periods applied to non-choice periods wasbinding even though the union did not pursue itsproposal to incorporate this language into asubsequently negotiated LMOU. (AIRS # 34914)

Problems with Percentages

There have been cases in which the unionhas been unsuccessful in obtaining fixedpercentages or numbers of employees off duringthe non-choice period because of the burden itwould cause in a post office, and the restriction itplaces on the Postal Service’s rights to scheduleemployees. In cases such as these, arbitratorshave cited the absence of evidence to show thatemployees were denied leave or forfeited leaveand the absence of evidence to show an abuse ofmanagement’s authority. Several arbitrators havealso found persuasive management argumentsthat it may refuse to negotiate provisions with fixedpercentages off (AIRS # 20904, 21034).

In AIRS No. 500559, the arbitrator held thatpermitting 8% of the employees annual leaveduring the non-prime period would burden theefficient operation of the Postal Service. Inaddition, the union in this case failed to show thatmanagement was abusing its discretion in grantingleave during the non-prime vacation period so asto require this fixed percentage guarantee. Annualleave during non-prime time was to be based onmail volume, the needs of the Service and theskills required to meet those needs. Anotherarbitrator rejected a union proposal to provide thatup to 8% of employees be granted incidental leaveon the basis that such a percentage was unusuallyhigh and there was no showing that grievanceshad been filed due to incidental leave requestsbeing denied under the existing provision. Theunion argued that management had not evenabided by the requirement that a request be actedupon within 48 hours or otherwise be considered“guaranteed approved leave” and this resulted inunpredictability that was disruptive in employee’slives. In response to the union’s concerns, thearbitrator added language to the provisionrequiring that “[a]ny request shall be denied only ifManagement has good reason to believe, at thetime the Request is made that, with the absence ofthe requesting employee, sufficient personnel will


not be available (regardless of the cause of theirunavailability) to permit the Greenville installationto operate in a reasonably timely, efficient andcost-effective manner” (AIRS # 38359).

The arbitrator in AIRS # 13031 rejected theunion’s proposal to grant 12% of the employees aright to vacation in the non-prime time period. Inso holding, the arbitrator stated that the unionfailed to establish any inference that under thepresent contract language employees wereunreasonably being denied leave during the non-prime time period. Absent any evidence to indicatethat supervisors were arbitrarily rejecting leaverequests during the non-prime time vacationperiod, as well as the absence of any violations ofELM 512.61, the arbitrator ruled against theestablishment of a new rule (See also AIRS # 546and 20550).

In AIRS # 21034, the arbitrator found that aproposal requiring incidental leave for up to oneemployee or 16% of employees would place anunreasonable burden on management of the smallinstallation. In AIRS Cases No. 20321 and 20325,the arbitrator rejected proposals for fixedpercentages of incidental leave up to 10% and 7%on the basis of their effect on management’s rightto approve and disapprove leave requests.

In AIRS # 26867, the arbitrator determinedthat the union failed to meet its burden of proofthat the advantages of a proposal to provide thatunscheduled annual leave requests be granted upto 10% of the employee complement outweighedits disadvantages. He found uncompelling theunion’s arguments that the implementation of apercentage for annual leave should be granted asa matter of convenience to employees and hasworked at other facilities. He also indicated thatthe union did not show concrete evidence that anyemployees had actually forfeited leave. On theother hand, the arbitrator was convinced bymanagement’s arguments that adoption of theunion’s proposal would increase overtime andwould be unworkable during certain weeksbecause of additional employees that would be off.

An arbitrator in AIRS # 27062 denied aunion’s proposal to require that a minimum of oneclerk be allowed annual leave during the non-choice period. He cited the fact that the union didnot demonstrate any instances of abuse ordisparate treatment in granting requests forincidental leave. Another arbitrator rejected aproposal to increase the number of “personaldays” of choice that are guaranteed from two tofour days. He found convincing Postal Service

arguments that doubling guaranteed personalleave days would “erode” flexibility needed forscheduling, and that there was an insufficientshowing that the current provision presentedproblems. (AIRS # 39150)

There are also cases in which the union hasnot been successful in obtaining percentagesbecause arbitrators have ruled that the negotiationof percentages exceeds the scope of Item 12. InAIRS # 27066, an arbitrator determined that alocal union’s proposal for a fixed percentage ofemployees to be off during non-prime time did notfall within the scope of the 22 items that aremandatory subjects of negotiation under Article 30.In addition, he ruled that there wasn’t persuasiveevidence to support a finding that a fixedpercentage was necessary at the installation.Another arbitrator ruled that it is not mandatorythat management negotiate a percentage ofemployees that must be allowed annual non-choice leave and it is therefore under no obligationto demonstrate the basis for its rejection of a unionproposal for a fixed percentage (AIRS # 26977).(Also, for other awards that determine thatproposals seeking percentages off for non-choiceeave periods fall within the scope of Article 30, seethe section above on percentages permitted.)

Locals should also be aware that provisionshave been upheld that require the inclusion ofleave for military purposes, sick leave scheduledin advance, unscheduled absences (i.e.: AWOL,emergency annual and administrative leave) incalculating the maximum percentage to allow offon incidental leave (AIRS # 31926). Moreover, onearbitrator found that a local union didn’t meet itsburden of proving that a change needed to bemade to existing language by deleting sick leavefrom the calculation of 14% off on incidental leave.The provision allowed for such leave as well as allother “known leave,” with the exception of juryduty, military leave, and convention leave, to beincluded in the percentage count. (AIRS # 38599)

Miscellaneous Procedures

In other circumstances involving proceduresfor granting annual leave other than during thechoice vacation period, an arbitrator rejectedmanagement’s argument that an existing provisionrequiring that incidental leave of less than eighthours be granted after considering “the operationalneeds of a given section” constituted anunreasonable burden. He found unpersuasive thecontention that limiting management to


considering the needs of one section, rather thanthe giving it the flexibility to consider the needs forservice in other sections as well, had resulted inplan failures. The arbitrator reasoned that theevidence showed that management had not hadmajor disruption to its operations during the twoyears the provision was in effect and it failed toestablish that any plan failure was “directlyattributable” to its granting of incidental annualleave. (AIRS # 37376) Another arbitrator rejecteda management proposal to change an incidentalleave provision to require that incidental leave ona day to day basis be calculated on the basis ofthe agreed upon percentage taking into accountthe “daily complement” within a section. Theexisting provision provided for calculation on thebasis of the employee complement within asection as of February of every new leave year.Management maintained that such language didn’taccount for daily fluctuations in staffing, andprovided testimony relating to insufficient staffingon weekends in the FSM area and on Tour 2 as aresult of the provision. The arbitrator ruled that thePostal Service failed to meet its burden of provingthat the current contract provision resulted in anunreasonable burden since it didn’t offer evidencethat continuation of the existing leave provisionaffected management in other sections on othertours. (AIRS # 42673)

In another award, an arbitrator rejected alocal union’s proposal to require that annual leaverequests for bereavement, wedding, anniversaries,and/or the employee’s birthday will be givenpriority consideration over other requests, whensubmitted in advance. He said that such a benefithas not been included in the National Agreement.Moreover, he denied a proposal that approvedrescheduled annual leave requests shall not becancelled or rescinded by management. Thearbitrator indicated that the provision wouldprevent management from scheduling duringemergency situations or from placing an employeeon LWOP if he/she finds out following approval ofleave that the employee’s leave balance wasn’tsufficient. (AIRS # 39752)

13. Holiday Scheduling

The Method of Selecting Employees toWork on a Holiday

The National Agreement, Article 11, Section 6provides for management to schedule casuals andpart-time flexibles even while they are on overtimebefore requiring a full- time regular to work. Thereare three categories of career employees in mostinstallations: part-time flexibles, part-time regularsand full-time regulars. In each category there arethose who may wish to volunteer and those whodo not want to work. In addition, in each one ofthose categories there are those who would beworking the holiday or the designated holiday atstraight-time and those who would be working onovertime. All of these categories andsubcategories can be arranged in almost anyfashion to suit local needs.

Note: Locals are cautioned againstnegotiating LMOU provisions identifying APWUas the administrator of holiday work.Depending on what is negotiated, includingprovisions on this item in a local’s LMOU maylimit the union’s flexibility to opt out ofadministration on a quarterly basis (asprovided in the 2006 National Agreement MOUre: APWU Administration of Overtime, ChoiceVacation Periods, and Holiday Work). At thistime, reliance on the MOU itself should suffice.In addition, before a Local assumes theseadministrative responsibilities, the Localparties will be provided training by the nationalparties.

The following “pecking order” is the mostcommon one used and generally an impasse canbe expected to be resolved in a similar fashion.

1. All casuals even if overtime is necessary.

2. All part-time flexibles even if overtime isnecessary.

3. Volunteers, full and part-time fixed scheduledemployees by seniority.

a. whose regular schedule includes that day(100% premium, 8-hour guarantee forFTR);

b. whose regular schedule does not includethat day (150% premium, 8-hourguarantee for FTR).


4. Non-volunteers, full and part-time fixedscheduled employees by inverse seniority

a. whose regular schedule does not includethat day (150% premium, 8-hourguarantee for FTR);

b. whose regular schedule includes that day(100% premium, 8 hour guarantee forFTR).

(See AIRS # 27339-40 in which in arbitratorupheld a provision similar to the above.)

It should be noted that the MOU re:Supplemental Work Force in the 2006 NationalAgreement (#2) provides with regard to postalinstallations having 200 or more many years ofemployment in the regular work force, “[a]llpart-time flexible clerk craft employees shall beconverted to full-time regular status byDecember 1, 2007.” However, even though anegotiated pecking order may be affected bysuch a change, there is no reason to negotiatea change since crafts other than the Clerk Craftare not affected and the parties merely canskip over the reference to part-time flexibles asit affects the Clerk Craft in 200 or more manyear offices once conversions have beencompleted.

Transitional Employees

Also, Article 11.6.D provides that transitionalemployees will be scheduled for work on a holidayor designated holiday after all full-time volunteersare scheduled to work on their holiday ordesignated holiday. This provision further statesthat transitional employees will be scheduled, tothe extent possible, prior to any full-timevolunteers or non-volunteers being scheduled towork a nonscheduled day or any full-time non-volunteers being required to work their holiday ordesignated holiday. However, if the parties havelocally negotiated a pecking order that wouldschedule full-time volunteers on a nonscheduledday, the Local Memorandum will apply. Based onlanguage in this provision, one arbitrator hasrejected a union proposal to schedule transitionalemployees after all full-time volunteer regularshave been scheduled and instead accepted aPostal Service provision to schedule transitionalemployees after full-time employees who havevolunteered to work on their holiday or designated

holiday but before full-time volunteer employeeswhose scheduled non-work day falls on theholiday (AIRS # 28749). The arbitrator stressedhowever that local negotiators may agree tooverride the expressed preference of placing TEsin the pecking order ahead of nonscheduled dayvolunteers. Also see AIRS # 27116 in which anarbitrator upheld a holiday pecking order in whichTransitional Employees would be scheduled towork after full-time regular volunteers. In addition,see AIRS # 33136 in which an arbitrator rejectedthe union’s proposal to change the pecking orderto place volunteers from employees with neededskills on a non-scheduled work day by seniorityahead of transitional employees. He based hisdecision on the fact that the current approach waseffective, grievance-free and working.

Full Time Volunteers before Casualsand PTFs

Attempts to schedule full-time volunteersbefore casuals and part-time flexibles have beenrejected in several impasse arbitrations ascontrary to the intent of Article 11, Section 6 (AIRS# 528, 6005, 6131, 6141 and 6143, 33308).However, several more recent arbitration awardshave upheld provisions that schedule full-timevolunteers first. In AIRS # 500626, an arbitratorhas found that a provision scheduling full-timevolunteers before part-time flexibles and casualswas not inconsistent and in conflict with Article 11,Section 6. He disagreed with the Postal Service’sarguments that the language of Article 11 barredregular employees from working until all othershave been scheduled and the union’s peckingorder would violate management’s obligation tomaintain the Service’s efficiency by increasingcosts. The arbitrator indicated that volunteerregulars are “not prohibited from working on aholiday until all casuals and part-time flexibles areutilized; rather they are part of the group who mustprecede non-volunteer regulars prior to those non-volunteers being forced [to work].” (Also, see AIRS# 39582 for similar reasoning.) In addition, inanother decision in AIRS # 39103 an arbitratorrejected management’s argument to delete anexisting LMOU’s provision requiring that full andpart-time regular volunteers be scheduled to worka holiday ahead of casual and part-time flexibleemployees on the basis that the provision wasinconsistent and in conflict with Article 11.6 of theNational Agreement. The arbitrator ruled that


since there was no showing that Article 11.6 hadbeen amended subsequent to the effective date ofthe previous agreement, Article 30.C “precludesthe Postal Service from arguing that the Item 13language, which has been included in the LMOUbetween the Parties for more than ten (10) years,is inconsistent or in conflict with the NationalAgreement.”

Two other arbitration awards, AIRS # 20724and 20725, found that pecking orders which gavefirst priority to full-time regular volunteers wereconsistent with the National Agreement. Inaddition, the arbitrator in these decisions ruled thatmanagement had not met its burden of provingthat pre-existing provisions setting forth thispriority constituted an unreasonable burden. Hefound that general arguments that elimination ofthis practice would result in cost savings wereinsufficient to prove its case.

In another award, AIRS # 32848 and 32869,an arbitrator found that the Postal Service had notproven that a provision scheduling full-time regularvolunteers first was an unreasonable burden. Heheld that the need for greater flexibility and costsavings from using PTFs to cover holidaysconstituted insufficient evidence to prove its case.See also AIRS # 20489, 20490 and 41919 whichalso upheld a provision allowing full-time and part-time regular volunteers priority in holidayscheduling. (However, in AIRS # 27092 and42763, arbitrators determined that provisions toschedule regular volunteers ahead of PTFs andcasuals were consistent with the NationalAgreement, but they then rejected the proposedlanguage on the basis that the union failed to meetits burden of proving that the change should bemade. Also, see AIRS # 27132-33 in which anarbitrator rejected a local union’s proposal to haveregular volunteers scheduled before casuals andpart-time flexibles on the basis that the existingagreement functioned moderately well and theproposed change was costly. In addition, in AIRS #27030-34 and 34113, the arbitrators found thatadoption of a proposal for scheduling regularvolunteers before casuals and part-time flexibleswas an unreasonable burden. Moreover, in AIRS #33264, an arbitrator found that while Article 11,Section 6 does not prohibit changing the peckingorder in local negotiations, the union failed to meetits burden of proving that there was a problem thatwarranted changing the local provision to requirethat full and part-time regular employee volunteersbe scheduled by seniority ahead of casuals andpart-time flexible employees.)

Moreover, in a contract arbitration case, anarbitrator held that where there is an establishedpast practice of soliciting full-time volunteersbefore scheduling casual or part-time flexibleemployees, the Postal Service could notcircumvent the practice for the purpose of avoidingits obligation to pay full-time volunteers holidaypremium pay (AIRS # 11334). In addition, in animpasse arbitration, the arbitrator accepted theunion’s proposed language that a full-time regularvolunteer within a section with necessary skillsmay be selected to replace a part-time flexible ifthere is no need to draft any full-time or part-timeregulars for the specific holiday schedule. Hefound convincing the fact that the union’s proposaldid not require, but merely allowed the Service touse a full-time regular volunteer rather than a PIF(AIRS # 34360).

Pecking Orders, Sections

Separate holiday “pecking orders” can benegotiated for each craft (AIRS # 528). However, apecking order requiring that only casuals and part-time flexibles be used if only one tour works on aholiday has been found to be an unreasonablerestriction on management rights (AIRS #500,309). The arbitrator also indicated thatrequiring casuals and part-time flexibles to workback-to-back on two tours would “clearly” not be inthe “best interests of safety and employee health.”On the other hand, another arbitrator in AIRS #39970 accepted a union’s proposal to deletelanguage from a holiday scheduling provision thatlimited scheduling of casuals and part-timeflexibles with needed skills to the same tour as theholiday opportunity. The union argued that itsproposal would require management to maximizethe use of PTFs and casuals, and minimize thenumber of full and part-time regular volunteers thatare required to work a holiday or designatedholiday. The arbitrator rejected management’sarguments that there was no need for the changeand the change would cause a violation of the FairLabor Standards Act on the basis that the FLSAwork week is established when PTFs and casualsare first assigned a tour and starting time. Shefound that the union proved that a problem existedbut management failed to provide proof for itsassertions, and did not show that the proposedlanguage was unworkable.

The fact that a particular pecking order wouldincrease Postal Service costs does not make the


proposal an improper matter for local negotiations(AIRS # 528). In addition, the fact that a proposalrelies on seniority in holiday scheduling forvolunteers and non-volunteers and does notinclude a requirement that employees working ona holiday must possess skills needed for availableassignments does not render it inconsistent withthe National Agreement (AIRS # 21002, 21003,and 21004). Also, a provision to schedule regularemployees who volunteer to work their holiday,designated holiday or non-scheduled day or daysin other units prior to forcing employees to workwho do not wish to work has been found to beconsistent with the National Agreement andupheld as needed at a facility (AIRS # 27682).

Management may not pass over anemployee who would be working on penalty pay, ifArticle 11 Section 6 or the LMOU pecking orderwould require the scheduling of that employeeahead of other employees who could work atlower premiums (AIRS # 10374).

Locals should consider establishing sectionsfor Holiday Scheduling (i.e., craft, tour, paylocation, occupational group, skill, scheme, unit,etc.). See Items 14 and 18 for more detaileddiscussion of sections. While a local may wish toestablish uniform sections for vacation planning,holiday scheduling, overtime desired lists andexcessing, it is not necessary. Sections can varywith their purpose.

Union Review

LMOU provisions requiring management toprovide the numbers and categories of employeesneeded to work on any given holiday and to meetwith the local union about the numbers andcategory of employees that will be needed havebeen upheld (AIRS # 20537). In addition, aprovision allowing the president of a local or hisdesignee to review the holiday schedules prior tothem being posted has been upheld (AIRS #20537).

Provisions limiting the type of maintenancecraft employees who could be worked on a holidayto coverage of mail processing operations and thebuilding have been found to be inconsistent withmanagement’s right to schedule (AIRS # 20537).However, a provision that employees detailed to anon-bargaining unit position for 40 hours shall notbe allowed to volunteer for a holiday scheduleunless all non-volunteers are required to work,was upheld (AIRS # 20537).

Limits of Item 13

It is important for locals to remember that thescope of Item 13 is limited to the subject matter ofholiday scheduling. Impasse arbitrators havefrequently held that Item 13 may not be used forsecuring items which provide that:

• No employee will be required to work morethan one day of any three day holidayweekend. This has been rejected as eitherinconsistent with the Agreement or beyondthe scope of Item 13, for it includes theselection of other (weekend) days in additionto the holiday (AIRS # 6005, 6141, 6143,8493 and 20537).

• A stated percentage of employees will beallowed to observe their holiday or daydesignated as their holiday. Item 13concerns the method of selecting employeesto work, not take, a holiday (AIRS # 6141,6143 and 8493).

• Employees required to work their holiday ordesignated holiday will be scheduled withinthe employee’s regular work schedule. Item13 concerns the method of selectingemployees to work a holiday, not theselection of hours (AIRS # 5422, 8352,8491, and 22515).

• Employees on either limited duty or lightduty may volunteer to work their holidayprovided such work is within theirrestrictions. Item 13 is only concerned withholiday scheduling, not limited or light dutyassignments (AIRS # 8522). However, seeAIRS # 34360 in which an arbitrator foundthat Item 13 may cover references toincluding light/limited duty employees inholiday schedules if the work is within theirlimitations.

• No employees will be worked in a non-bargaining unit position while there are non-volunteers scheduled to work any day duringa holiday period (AIRS # 20537).

But see AIRS # 26859-60 in which anarbitrator found that it was proper to negotiate anitem that an employee having leave the day beforeor the day after a holiday should be exempt fromholiday scheduling. Then turning to the merits,


however, she determined that a practice inexistence at this facility to allow employees onleave to be exempt from holiday scheduling wasnot a binding past practice since it was limited toone tour and management should be allowed thediscretion to implement a policy fair to employeeswhile allowing for operational flexibility. Note alsothat in AIRS Cases No. 33264, an arbitratorindicated that a provision that employees who arescheduled for annual leave during a holiday weekwill not be subject to reporting for work on aholiday could be negotiated, but determined thatthe union did not meet its burden of proving that aproblem existed with the current language that didnot contain such a guarantee. In addition, anotherarbitrator accepted a union’s proposal that no full-time or part-time regular employee shall bescheduled to work on his/her holiday inconjunction with scheduled annual leave unlesshe/she volunteers by signing the holiday list (AIRS# 34360).

Moreover, a union’s proposal to modify Item13 of its LMOU by adding a provision that placedthe time period for volunteering to work a holidayno later than 14 days before the week of the actualholiday or closer to the holiday time than theexisting provision was considered in AIRS #33264. However, the arbitrator denied thisproposal because of a lack of evidence showingthat a hardship existed.

14. Overtime Desired List

Whether Overtime Desired List in Article 8Shall be by Section and/or Tour

Locals should carefully consider whetherthey will use sections or whether they will usetours. Generally smaller offices will go by tourwhile larger offices will divide into many sectionswithin a tour.

In selecting sections careful attention shouldbe paid to such things as:

1) Starting times. If varied starting times in asection are placed on one Overtime DesiredList then a strict rotation through the list mayresult in one starting time continuouslymissing opportunities while another startingtime works all the opportunities.

2) Qualifications. If there are a wide variety ofqualifications within a section disparities can

occur where a number of people are skippedto get to a qualified person.

Note: Locals are cautioned againstnegotiating LMOU provisions identifying theAPWU as administrator of overtime. Dependingon what is negotiated, including provisions onthis item in a local’s LMOU may limit theunion’s flexibility to opt out of administrationon a quarterly basis (as provided in the 2006National Agreement MOU re: APWUAdministration of Overtime, Choice VacationPeriods, and Holiday Work). At this time,reliance on the MOU itself should suffice. Inaddition, before a Local assumes theseadministrative responsibilities, the local partieswill be provided training by the nationalparties.

Some locals have developed multipleOvertime Desired Lists (ODL) having separate listsfor before tour, after tour and non-scheduled days.Others have accomplished the same thing usingan annotated single list.

Locals should note that the 1984Memorandum of Understanding on Article 8provides for a designation on the ODL for thosepeople wishing to work more than ten hours on aregularly scheduled day.

In a few circumstances locals havenegotiated a procedure that allows for an ODL inparticular sections and a tour ODL. When aparticular section ODL has been exhausted,volunteers from outside of that section on the tourODL will be selected before forcing people withinthe section to work. Several arbitrators have held,however, that ODLs by tour and sections are inconflict with Article 8, Section 5 (AIRS # 4863, and6593). In at least one case, an arbitrator has ruledthat overtime desired lists by tours and positiondescriptions for motor vehicle employees wasacceptable (AIRS # 20621).

In the Maintenance Craft the concept of“occupational group and level” applies to overtimedesired lists. Article 38, Section 7(B) provides thatan overtime desired list shall be established foreach occupational group and level showingspecial qualifications where necessary. As a resultof this provision, the union team can negotiate forsectional and/or tour OTDLs for maintenance craftworkers but these OTDLs must, as required byArticle 38, also be established for eachoccupational and group level.

Management has attempted not to honor orto declare inconsistent and in conflict some of the


more elaborate local provisions on this item.Therefore, the local negotiation team should paycareful attention to Article 8 and the Memorandumon Article 8 to make sure that their proposals andtheir LMOU language are consistent with all of theprovisions.

In pre-1985 LMOU impasses, manyarbitrators declined to implement multiple overtimedesired lists. However, since the 1984 contractthere have been a number of successes inimplementing these procedures.

Multiple Overtime Desired Lists

A case that reversed the trend came from theDaytona Beach Area Local, where a proposal toestablish multiple Overtime Desired Lists forbefore and after tours and off days was heldconsistent with the National Agreement. Thearbitrator found that no provision expresslyprohibits establishment of multiple lists or “clearlyimplies” that such lists are not permitted (AIRS #6628).

Other awards that have accepted provisionssetting up different types of lists include:

• provisions requiring three lists for ODLs sothat an employee can volunteer to reportprior to and/or after his/her regular reportingtime and/or on his/her nonscheduled dayswere accepted (AIRS # 4896, 5280, 7026,6015, 8350-8356, 20621, 26890, 34667);

• a provision requiring that overtime listsinclude overtime before the beginning of atour, at the end of a tour, on an off day only,and in excess of 10 hours (AIRS # 4851);

• a provision for off-day and workday overtime(AIRS # 5289, 27339-40, 26866). But seeAIRS # 27353, 27063 and 26854 in whicharbitrators rejected such a provision.

• a provision requiring overtime lists for off-day and workday overtime as well asovertime on any day of the service week andovertime before and after a regularscheduled workday (AIRS # 27538).

Arbitrators also have accepted provisionsthat define tour hours and start times in AIRS #20621 and 22515.

Since the 1987 National Agreement went intoeffect, there has been mixed results with regard to

acceptance of multiple overtime desired lists. Onewell-reasoned award indicated that to prohibitmultiple overtime desired lists would frustrate theparties’ intent under Article 8, Section 5 which is toreduce forced overtime (AIRS No. 14652). In thataward, the arbitrator accepted the union’sproposal to carry-over a provision for dailyovertime and one for scheduled days off. Otherawards under the 1987 Agreement which upheldsimilar provisions include AIRS 13438 and 13033.

In an award under the 2000 Agreement, anarbitrator ruled that Article 8 and/or Article 30 don’tprohibit multiple overtime desired lists, “thoseArticles mandate discussion of multiple OTDLs”such as those allowing before tour, after tour, andoff days overtime lists. He found that if localnegotiations were not allowed to cover multipleovertime desired lists, Article 30.B.14 merelywould be redundant and have no meaning sinceArticle 8.5.B also provides that ODLs beestablished by tour and section. Moreover, thearbitrator cited an April 16, 1985 letter signed bythe then-Assistant Postmaster General and APWUnational president that indicated that “local officesmay discuss multiple overtime desired lists duringthe current local implementation process with aview toward local resolution of the issue.” Hereasoned that this letter is evidence that multipleovertime desired lists fall within the parameters ofArticle 30.B.14. Finally, the arbitrator concludedthat management failed to show support for itsclaim that multiple ODLs would increase costsbecause of the potential for increases ingrievances that are filed over their use (AIRS #38868). In an award under the 1990 Agreement,an arbitrator determined that a multiple overtimedesired list proposal had merit in “concept” butdetermined that it should not be included in theLMOU because of its lack of “completeness andclarity” (AIRS # 21005). This award indicates theimportance of clearly delineating the number andtype of lists desired. Another award denied theunion’s proposal to create multiple overtimedesired lists for pre-tour and post-tour overtime,and scheduled days off for maintenanceemployees on the basis that this proposal was“overly broad, ambiguous and not specificallytailored to ensure a smooth transition which wouldmutually balance the needs of both parties.” Thearbitrator found convincing the management’scontention that there would be an administrativeburden on management in using the three lists,due to possible mistakes and the potential foradditional grievances, even though management


currently had a policy in place of 10 and 12 hourovertime lists (AIRS # 39465).

Another award under the 1998 Agreementfound that multiple overtime desired lists fall withinthe scope of Item 14 thereby rejecting the PostalService’s argument that the union’s proposal wasnot arbitrable (AIRS # 32777). However, thearbitrator determined that the union failed toprovide sufficient proof that three lists wereneeded and there was no evidence of the reasonswhy the union previously gave up the three-listsystem during negotiations under a prior localagreement between the parties. Also, an arbitratorupheld a multiple overtime desired list, whichcreated a pecking order providing that ifemployees on the section overtime desired list arenot sufficient, employees in a non-ODL sectionshould be assigned overtime by seniority followedby employees on the ODL of a tour and finallyemployees not on an overtime desired list by tour.He found that the provision was not inconsistentwith the National Agreement and did not representan unreasonable burden on management (AIRS #32505). Moreover, an award determined that amultiple overtime desired list by nonscheduledday, before tour, and after tour for three buildingsdid not result in an unreasonable burden tomanagement. The arbitrator found that thoughemployees had to travel between buildings, theService did not show that this factor caused anyproblems (AIRS # 34667).

Awards rejecting multiple overtime desiredlists include AIRS # 13047; 13104; 13019; 14251;and 500309- 500315, 26789-94, 35332. An awardunder the 2000 National Agreement accepted aunion’s proposal for three overtime desired lists,before tour, after tour, and scheduled off days.However, he found that additional proposals wouldresult in unwarranted administrative obligations.These included allowing employees on the beforeand after tour lists to have the option of choosingtwo and/or four hours of overtime, and to providethat the scheduled off day list have a separaterotation for each of the seven calendar days.(AIRS # 40576)

Advance Notice of Overtime

Some arbitrators have ruled that proposalscalling for advance notice of overtime are beyondthe scope of Item 14 (AIRS # 506, 514, 526).However, several locals have successfullyobtained advance notice of overtime. (AIRS #5198, 5213, 6003, 7024, 8051, 20621, and

38356).If the advance notice provision is so stringent

as to give the employee an unqualified right torefuse the overtime, the provision may be found inconflict with the right of the Service to carry out itsmission and the right to require overtime (AIRS #5199, 6184, 6792, 7989, 20381, and 39925).Examples of these types of provisions are onesthat provide that management “shall” or “will”provide one or two hours notice (AIRS # 5199,7989), those explicitly giving employees the optionof refusing overtime “without reprisal” ifcircumstances prevent one hour’s notice (AIRS #6003), and those requiring 24 hours advancenotice before requiring work on a non-scheduledwork day (AIRS # 5199).

The following is an example of a negotiatedadvance notice provision:

Employees in the Clerk Craft shall normally begiven 2 hours advance notice when the PostalService schedules overtime work, but mayreceive less notice if unusual conditions arefound by the Director of Mail Processing or hisdesignee. Employees receiving less than 2hours notice who state that they do not want towork overtime on a given day will not be sorequired if they state that they are unable to doso for equitable reasons (e.g., anniversaries,birthdays, illness and death). Acceptableevidence may be required to substantiate suchemployee claims and may be provided within3 working days following the date of theemployee’s return to work.

Employees receiving 2 hours or more notice ofovertime who state that they do not want towork overtime on a given day will be givenconsideration in exceptional cases based onequity (e.g., anniversaries, birthdays, illnessand death).

Note: As with many advance noticeagreements, this does not appear in the LMOU,but is rather a local policy statement.

Scope of Item 14

Proposals that go beyond the scope ofsetting up ODLs may be rejected in impassearbitration. Examples of proposals that have beendetermined by arbitrators to be outside the scopeof negotiation for this item are as follows:


• a “telephone policy” allowing employees touse the phone to make arrangements whenovertime is called (AIRS # 506)

• an exception from mandatory overtime foremployees who have not qualified on ascheme (AIRS # 555)

• a prohibition on scheduling employees forovertime work who have medical restrictions(AIRS # 6105)

• allowing employees who have medicalappointments or who are faced withemergency situations to be excused fromovertime (AIRS # 6515)

• specifics as to time of the overtimedistribution, when and how overtime lists willbe prepared, and how an employee signsthe list (AIRS # 7580)

• a policy allowing part-time flexibles who areconverted to part-time regular or full-timeflexible during a quarter to place their nameson the ODL within ten days of theirconversion (AIRS # 8503)

• a requirement that if a supervisor is unableto contact an employee for the purpose ofoffering overtime, the missed overtime shallnot be counted as an opportunity forovertime (AIRS # 8511)

• a requirement that an employee on an ODLmay be excused from overtime for anyreason eight times without having his or hername removed from the Overtime DesiredList (AIRS # 27950)

• a requirement that breaks be allowed atspecified intervals during overtime (AIRS #26883-887)

Another provision that has been held to beinconsistent and in conflict with the NationalAgreement, and an unreasonable burden is aprovision that allowed employees to volunteer forovertime when additional overtime is needed. Anarbitrator ruled that this language was inconsistentwith the need to sign the Overtime Desired Listtwo weeks before the start of each calendarquarter. In addition, the efforts necessary formanagement to find volunteers created anadministrative burden and excessive cost ifemployees are not contacted (AIRS # 20730). Alsosee AIRS # 28749 in which an arbitrator found thata provision was inconsistent and in conflict withthe National Agreement because it required thatvolunteers who are not on the Overtime Desired


List be worked before calling non-volunteers ifthere are an insufficient number of personnel onthe ODL to cover the needs of the Service.

In addition, a provision that established anovertime desired list by installation was held to bean unreasonable burden. The arbitrator ruled thata section-based list was necessary in view of theneed to assign overtime to employees who arequalified to perform it (AIRS # 20748). Anotherarbitrator held that a provision setting up overtimedesired lists by section or tour was outdatedbecause work units had been moved around dueto automation. Therefore, he held that itconstituted an unreasonable burden (AIRS #21928). Another arbitrator accepted a change toan LMOU that affected one station of a P&DC andprescribed that scheduling for overtime, vacations,and holiday coverage be done by tour. Herejected the Postal Service’s argument that due tothe small number of personnel at the facility, whichincluded four window clerks and two relief clerks, itwas not practical to allow the change. Thearbitrator found the language to be reasonableand not unduly burdensome on management’sflexibility to assign staffing. (AIRS # 39602)

Another arbitrator ruled that managementdoes not have to negotiate over the definition ofsection contained in Item 14 and could determinethat a section was equivalent to a pay location inaccordance with its rights under Article 3. In thiscase, four new pay locations had been developedand maintenance craft employees were placed insections according to their prior training so that asection could include employees from differentoccupational groups and levels. The union arguedthat the use of pay locations rather thanoccupational groups denied the seniority rights ofthe employees and caused significant hardship.The arbitrator rejected the union’s proposal thatovertime desired lists shall be by tour, section,occupational group, and level (AIRS # 32312).However, see Article 38, Section 7(B) whichestablishes that overtime by occupational groupand level should apply in cases such as this one.

A provision that prohibited craft employeesdetailed to non-bargaining unit positions fromworking overtime in a bargaining unit position wasrejected as inconsistent with management’s rightto schedule overtime (AIRS # 20621). However,an arbitrator held that it would be advisable formanagement to accept a provision requiring thatadditions to the overtime desired list can be madein the case of part-time flexibles converted to fulltime; when a successful bidder goes to a different

tour, different facility, different positiondescriptions, different craft; and because ofabsences during the solicitation period (AIRS #20621). Another arbitrator determined that a letterof clarification for the implementation of the off-dayand extended overtime desired list, whichmandated that employees work overtime in theirbid assignments and allowed them to leave if theydesired while on extended tour, was consistentwith the National Agreement. He reasoned that thereference to bid assignment addressed the issueof section and tour raised by Item 14 and thatvoluntary departures by employees on overtimedid not constitute a violation of the NationalAgreement since there is no obligation by theService to pay guaranteed overtime in thesecircumstances (AIRS # 32508).

Pecking Order

In addition, LMOU provisions for two localswhich assigned a pecking order for overtime whichplaced part-time flexibles and casuals after ODLemployees were upheld. The arbitrator found thatthese provisions were not inconsistent or inconflict with the National Agreement (AIRS #27104 and 27486, and AIRS # 27543 and 28327).Also, in one of the cases (AIRS # 27543 and28327), the arbitrator determined that in order toprevail on an unreasonable burden argument inthe future, the Service will have to show throughsubstantial facts that something has significantlychanged since the last round of local negotiationswhich can now be considered as representing anunreasonable burden. He cited the fact that theService had repeatedly agreed to the provision inquestion during prior impasse proceedings.

It should be noted also that pursuant tothe parties’ agreement and intent of the 2006MOU re: “Supplemental Work Force;Conversion of PTF’s,” full-time employees(regardless of craft) on the Overtime DesiredList will receive priority for overtimescheduling before casuals working overtime.This agreement supports the argument thatODL employees should be scheduled forovertime work first.

In another award, an LMOU provision thatestablished a pecking order for overtime placingpart-time flexibles along with part-time regularsand transitional employees after full-time regularemployees was upheld. The arbitrator determinedthat the item, even though it was outside thescope of the 22 items in Article 30, was valid. He


also ruled that it was not inconsistent and inconflict with the National Agreement and that thePostal Service did not prove that the pecking ordercreated an unreasonable burden. The arbitratorreasoned that the Postal Service’s failure to showthat overtime usage would have been reduced ifthe pecking order was not in place, did not allowhim to make an informed judgment that the systemwas burdensome (AIRS # 32116). (But see AIRS #16924 and USPS #N1C-1J-C 15443, contractcases in which arbitrators found that LMOUprovisions giving a preference to full-time regularson the ODL before PTFs were inconsistent and inconflict with the Agreement.)

Also, a local’s proposal that provided thatmanagement would use employees from sectionsassociated with an affected section beforerequiring non-ODL employees to work overtimewas accepted by an arbitrator (AIRS # 26883-26887). He found unpersuasive managementarguments that the provision would create anovertime pecking order outside the scope of Article30 and would conflict with Article 8.5. He indicatedthat the proposal served the purpose of ODLswhich is to provide overtime opportunities toindividuals that desire the work and bypassindividuals that do not desire the extra work.

Moreover, another arbitrator upheld aprovision setting up a pecking order requiring inpart that non-ODL volunteers from an appropriatesection and then from other sections on a tour bescheduled for overtime ahead of non-volunteersfrom the appropriate section and thenfrom other sections on the tour. The Postal Serviceargued that the provision was inconsistent with theNational Agreement. However, the arbitratorreasoned that “[u]nless there is something specificin the National Agreement outlining, or restricting,a pecking order, it is difficult to perceive howretention of a previously agreed upon peckingorder would be inconsistent or in conflict with theNational Agreement.” In addition, he cited a priorcontract arbitration award that upheld the samepecking order at this facility and the fact thatmanagement did not make any assertions duringnegotiations that the challenged language wasunworkable or placed an undue burden on it (AIRS# 27538).

An award upheld a pre-existing provision,setting up guarantees once overtime hours arescheduled, a “desire to be bypassed” policy, andpayment to employees on the ODL if they do notremain on the list and their hours are below the listaverage by 10%. The arbitrator rejected

management’s argument that the provision, whichhad been in effect since 1993, resulted in anunreasonable burden. The only evidence insupport of this claim was that flexibility would beaffected if overtime hours were guaranteed whenscheduled and it was difficult to find someone towork since management allegedly had to gothough the entire overtime desired list, not just bytour, before it could require an employee to workovertime. The arbitrator found that a documentprepared by management merely showed“assumed actions and potential costs, not actualcosts that have been incurred” and therefore doesnot prove that an unreasonable burden existed.He noted also that there was testimony that untilthe impasse arbitration, there had never been agrievance by the union (AIRS # 39064).

Also, an award found that an LMOU thatcontained a consolidated overtime desired listcovering two facilities located 15 miles apart didnot conflict with the National Agreement orconstitute an unreasonable burden tomanagement. The arbitrator determined that thereis nothing in the National Agreement thatprecludes one consolidated overtime desired listbeing shared by two locations. In addition, hedetermined that although this arrangement may beinconvenient for the Postal Service, it has beenworking for many years at these facilities andtherefore the Postal Service did not meet itsburden of proving that the consolidated list createdan unreasonable burden. (AIRS # 40182)

Note: Where Pool and Relief employeessign ODL should be defined by Locals.

A local’s proposal to change its LMOU torequire that Pool and Relief Clerks can only signthe overtime desired list in the pay location wheredomiciled, and when assigned to units other thanwhere their name is, may be offered overtime, ifavailable, after the overtime desired list isexhausted in that unit was upheld by an arbitrator(AIRS # 26899). Relying on a Step 4 settlement inH8C-3W-C 22961, he ruled that the existingprovision which did not contain this restriction wasin conflict and inconsistent with the NationalAgreement.


15. Light Duty—Number ofAssignments

The Number of Duty Assignments WithinEach Craft or Occupational Group to beReserved for Temporary or PermanentLight Duty Assignment

16. Light Duty—ReservingAssignments

The Method to be Used in Reserving LightDuty Assignments So That No RegularlyAssigned Member of the RegularWorkforce Will be Adversely Affected

17. Light Duty—IdentifyingAssignments

The Identification of Assignments That Areto be Considered Light Duty Within EachCraft Represented in the Office

These three items are almost always dealtwith as if they were a single item because they areso closely interrelated and tied together. Article 13,Section 3 of the National Agreement addresseseach of these items in more detail. In order toformulate proposals, a request for specificinformation from management should be made.Information such as the average number ofemployees on temporary or permanent light duty,the average duration of the light duty assignments,the type and nature of the physical restrictions,etc., should be obtained.

Once some idea of the number and type ofassignments that are needed is known theNational Agreement suggests that light dutyassignments may be created from part-time hours,adjustments to normal assignments or reservingcertain assignments as may be establishedthrough local negotiations to accommodate thelocal needs.

The National Agreement implies that actualduty assignments should be established andreserved for deserving light duty personnel. Localsmay be reluctant to reserve “x” number of lightduty assignments and there is an inherent dangerin this approach. As an example, if 10assignments are reserved, this means that 10

assignments may be exempt from the biddingprocess. In addition, if and when the eleventhperson requested light duty, management mightdecline the request if all 10 positions were filled.

Reserving Assignments

Some locals have elected not to negotiateinto their LMOU a fixed number of reserved lightduty assignments, and have relied on pastpractice. Despite the risks, failure to negotiatereserved assignments may cause a deservingemployee to be denied a light duty assignment. Itis not uncommon for management to simply state,“This office has no light duty work.” With theunion’s negotiation of an MOU in the 2006National Agreement on Limited Duty andRehabilitation Assignments within APWUCrafts involving Workers from Other Crafts, thePostal Service has agreed that reassignmentsor reemployment under Section 546 of the ELM“must be accomplished through Article 13 ofthe National Agreement applicable to the craftto which the employee is being reassigned orreemployed.” Therefore, locals that have afixed number of reserved assignments maywant to cite this provision as support forincreasing the number of assignments and/ortype of assignments to include limited dutyassignments, as well as light dutyassignments.

A two-pronged approach may be taken. Forexample, reserving specific assignments in somenumber, and providing a method to be used toaccommodate additional requests beyond thereserved assignments, or to accommodateemployees whose physical imitations would notallow them to work the reserved assignments. Inaddition, locals may negotiate specific dutieswithin prescribed tours for light duty after all effortshave been made by management to adjust theemployee’s regular duty assignment.

In a small office, setting up a fixed number oflight duty assignments may be difficult. Onearbitrator has held that seasonal demands as wellas the irregular flow of mail in such a setting wouldvary thereby affecting the work availability for lightduty employees (AIRS # 5295). On the otherhand, another arbitrator has accepted a provisionsetting up reserved light duty positions for apercentage (3%) of employees (AIRS # 6092).Moreover, in response to a claim that anunreasonable burden resulted from an existing


provision’s requirement that six light duty positionsbe available within the Motor Vehicle Craft, a thirdarbitrator found that use of a percentage approachwould respond to management’s concern thatthere had been reductions in the Motor Vehicleworkforce. He ordered that the appropriatepercentage be calculated on the basis of the totalMVS complement in 1998 (the date of theprevious LMOU), divided by six positions, and thatthis percentage be frozen during the term of the2002 LMOU. (AIRS # 43196) A fourth arbitratorhas rejected management’s contention that fixedpermanent and temporary light duty assignmentsfor the Clerk Craft set at 12 assignments for Tour1, 4 assignments for Tour 2 and 8 assignments forTour 3 constituted an unreasonable burden.Evidence that new machinery reduced the numberof positions on all tours and volumes processed onthe Manual Primary Line where light dutyemployees are generally placed merely provedthat management was inconvenienced, not that itwas “severely taxed” by the required number ofreserved assignments or prevented frommaintaining efficiency of operations. (AIRS #38738) In cases where a fixed percentage for lightduty assignments is sought, however, a localunion bears the burden of showing how it arrivedat the percentage.

An arbitrator rejected a union’s proposal toreserve the number of light duty positions at 5% ofall APWU-represented positions on the basis thatthe union had failed to offer any data on thenumber of light duty employees in the facility atany given time and the characteristics of jobs to bedesignated as light duty. He stressed that if anumber is set too low, deserving candidates couldbe denied accommodation if the partiesconsidered it a negotiated cap or if it is too high,too many assignments would have beendesignated which could adversely affect regularemployees. (AIRS # 39159) Also note that anarbitrator accepted the union’s argument thatlanguage requiring that consideration be given tousing employees on light duty at 1% per tour wasinconsistent with management’s obligation toprovide light duty assignments to the extentpossible (AIRS # 33264).

Another award has accepted the union’sproposal prescribing a number of positions pertour in the maintenance craft in an effort to ensurethat maintenance employees on light duty wouldbe accommodated (AIRS # 20990). It should benoted that any increases in light duty positionshave to be justified by increases in the number of

employees per facility (AIRS # 21295).Moreover, several arbitrators have accepted

provisions that prescribe non-bid duties that canbe performed by light duty employees (AIRS #6092, 7578). In one of these cases, the provisionspecified that employees on light duty couldperform duties related to Nixie/tearup mail, lightduty casework, facing mail, work in the label room,mail counting work, and incidental assignmentswithin the employee’s physical limitations (AIRS #6092). However, see AIRS # 26789-94 in whichone arbitrator rejected a local union’s proposalwhich recognized certain duties by craft as lightduty assignments. The arbitrator reasoned thatthere was no need for the proposed listing and itwould unduly restrict the desired flexibility neededby management to make light duty assignments.

Arbitrators have deleted provisions that haveset up specific criteria for obtaining a light dutyassignment, such as lifting and standingrequirements, as being unnecessarily restrictiveon an employee’s right to be considered for lightduty assignments on an individual basis (AIRS #20743 and 20717).

Cross-Craft Light Duty Assignments

Maintaining light duty assignments within acertain craft, thereby preventing the crossing ofcraft lines, has been rejected (AIRS # 8481). Inaddition, giving employees represented by theAPWU the superior claim to duty assignments thatare recognized as belonging to crafts of the APWUhas been determined by an arbitrator to be outsidethe scope of Item 17 (AIRS # 26722). Anotherarbitrator also held that a provision assigningemployees from other crafts to work certain tourswas impermissible. He relied on the fact that itinfringed on another union’s negotiating authoritywithout its consent (AIRS # 553). Moreover,language in an LMOU prohibiting non-APWUbargaining unit employees from being assignedwork on Tour Two to the detriment of any APWUbargaining unit bid position, light duty assignmentor other temporary assignment was ruled to beinconsistent with the National Agreement (AIRS #26756). A provision defining light duty assignmentsas including assistance to other carriers has beenrejected; the APWU cannot bargain for NALCduties (AIRS # 6132).

A less restrictive provision, requiring that theunion be advised when cross- craft assignmentsare made, has been allowed (AIRS # 8623). Inaddition, an arbitrator accepted a provision that


requires employees not represented by theAmerican Postal Workers Union assigned toAPWU work to perform work during the tourAPWU employees normally perform such work(AIRS # 5283). Note that the 2006 NationalAgreement provides that “[m]anagement willgive the local union president advance writtennotification when it is proposed to reassign anill or injured light or limited duty employee in across craft assignment into an APWUrepresented craft.” (Article 13.4.M)

Other Provisions

Local agreements may repeat language fromArticle 13 of the National Agreement to show thescope of management’s obligation to consider lightduty requests. It may prove fruitful to attempt towrite language similar to ELM 546.142 (changingreferences from “limited duty” to “light duty”) intothe Local Memorandum of Understanding. Localsshould also consider putting language in theirLMOU that specifies that employees reinstatedunder the Rehabilitation Program should beassigned to one of the reserved light dutyassignments or a residual vacancy. This wouldhelp protect against management creating specialpreferred jobs for Rehab employees, while stillprotecting the Rehab employee. Note thatmanagement may object to language used that isnot identical to language contained in the NationalAgreement. For example, see AIRS # 14656 inwhich an arbitrator ruled that a provisionaddressing limited duty employees was outsidethe scope of Article 30.B.17. However, as notedearlier, the APWU and Postal Service entered intoan MOU as part of the 2006 National Agreementthat provides for a change to ELM 546 stating thatreassignments or reemployments under thatprovision must be accomplished through Article 13of the National Agreement applicable to the craft towhich the employee is being reassigned orreemployed. Therefore, this provision supports anargument that proposals addressing limited dutyas well as light duty assignments can benegotiated locally.

Moreover, an attempt by management todeclare as inconsistent a provision using thelanguage “maximum effort” instead of “greatestconsideration” was rejected by an arbitrator (AIRS# 27682). In addition, management’s objection to aunion proposal to require that work will beprovided to the extent possible at the plant or

elsewhere in an installation if it is unavailable atthe stations, was not found to be consistent withArticle 13 (AIRS # 33264).

It should be noted that an attempt to add aprovision setting up a union-management lightduty committee that has the specific duty ofreviewing requests for light duty will not besuccessful (AIRS # 22575, 22576, 22577, and22578). In addition, some arbitrators may bereluctant to continue an LMOU provision providingfor a union/management light duty committee if itthere is no showing that it has ever met or been aneffective committee (AIRS # 32848 and 32869).Moreover, a provision that “mandates” a light dutycommittee to find work within the medicalrestrictions for an employee within the employee’stour of duty has been held to be in conflict with theNational Agreement (AIRS # 23385).

However, a proposal that temporary,transitional and loaned/borrowed employees shallbe included in the expression “supplemental workforce” for the purposes of creating hours for lightduty positions in Article 13.4.A was allowed to beadded to one local agreement (AIRS # 22575,22576, 22577, and 22578). In addition, a provisionthat states management’s obligation to make allreasonable efforts to reassign employees eventhough presently identified light duty assignmentsare filled by disabled employees was accepted byan arbitrator (AIRS # 22575, 22576, 22577, and22578). Another arbitrator also has upheld aprovision that reasonable efforts shall be made toassign an employee to light duty within theemployee’s craft or occupational group and “tokeep the hours of light duty as close as possible tothe employee’s regular schedule” (AIRS # 21102).However, a provision providing that except whereoperationally impossible, all light/ limited dutyassignments shall maintain an employee’s bid orother assigned hours and nonscheduled days hasbeen found to be inconsistent with Article 13 (AIRS# 26758). The arbitrator determined that use of theterms “operationally impossible” was an absoluterequirement which was incompatible withlanguage which allowed the Postal Service somediscretion in assigning such work. Also, a provisionaddressing limited duty employees has been ruledto be outside the scope of Article 30.B.17 (AIRS #14656). Moreover, a provision establishing a part-time permanent light duty position has not beenallowed (AIRS # 527). The proposal wasconsidered to be inequitable since it did notaddress the needs of temporary light dutyemployees and the needs of a permanent light


duty employee to work full-time.Moreover, a provision that the union be given

notice of when a light duty request is received, andof each denial of light duty was determined to bebeyond the scope of Article 13 which only requiresthat concerned employees be notified in writing ofthe reasons why an employee cannot bereassigned. Additional language regardingmedically defined work limitations and tolerances,the ability of an employee to perform work of hisown job, modifications to other jobs, and arequirement that duties assigned to casuals, TEsand PTFs be modified for light duty whenproduction is not impacted were considered to beburdensome procedures in circumstances wherethe union had not shown that there was a problemwith existing language. The arbitrator urged theparties to merely “fulfill the bargain” they madewhen they negotiated the provision requiring thatwhen a deserving employee seeks light duty workthe president of the local union and installationhead “shall establish the light duty assignment byconsultation” in accordance with Article 13.3.(AIRS # 39159)

Note: The 1987 negotiations resulted inthe deletion of language in Article 8, Section5.C.1.b., which prohibited employees on lightduty from performing overtime work. The intentof this change was to allow light dutyemployees to work overtime - within theirphysical limitations. This change in languagewas not intended to disrupt any localmemorandum which requires management tocall people in on their off day when overtime isavailable.

18. Sections for Reassignment

The Identification of AssignmentsComprising a Section when it is Proposedto Reassign within an InstallationEmployees Excessed to the Needs of aSection

Locals of any size should negotiate sectionsfor the purpose of protecting seniority in the eventmanagement determines that it is necessary toreduce the number of employees on a tour orwithin a unit in the installation. Sections may bedetermined through local negotiations for thepurpose of excessing employees of a section asoutlined in Article 12, Section 5.C.4.

As an example, if your office had three

Window Clerks and management decided toabolish the senior Window Clerk’s position, ifsections are not defined the senior excessedWindow Clerk becomes an unassigned regularand will be required to bid on any vacant dutyassignment within the installation without retreatrights back into the window unit. On the otherhand, if the window unit had been negotiated as asection, the senior Window Clerk would haveremained in the section and the junior clerk wouldhave been excessed and declared an unassignedregular. The junior clerk would have retainedretreat rights to the first residual vacancy in thewindow unit. The principle of seniority is protectedsince the senior clerk whose job was abolishedhad the right to remain in the window section. Thejob vacated by the junior clerk would be filled bysection bidding, which means that if the numbertwo employee did not desire the vacated position,the senior regular would be assigned to theposition vacated by the excessing of the junioremployee.

Defining sections not only by particular workunits but also by levels and skills within a unit maybe desirable. If the Window Unit also containedScheme Distribution Clerks who did not have fixedcredits or window training and contained WindowClerks that did not have the scheme, thendistinguishing the two skills as separate sectionsmight prevent the assignment of a senior WindowClerk who remains in the section to the JuniorScheme Clerk’s position, thus forcing the seniorclerk to learn the scheme or vice versa, theScheme Clerk to qualify on the window. Inaddition, it is recommended that for theMaintenance Craft, each occupational group bytour should be identified as separate sections.This will prevent management from makingreassignments across tours. (See AIRS # 39693 inwhich an arbitrator accepted the union’s proposalto add “and tour” to existing language for theMaintenance Craft stating “section will be byoccupational group and level.” However, in AIRS #26783 an arbitrator rejected a local union’sproposal to add occupational group to tour in foursections set out for Maintenance Craftemployees.)

Several awards on reassignment show howarbitrators approach the identification of sectionunder different circumstances. In one case, anarbitrator added tour of duty and work units andskills to the identification of assignmentscomprising a section. The prior section wasdefined as an entire installation. The union argued


successfully that the current LMOU did notadequately protect senior employees and shouldindicate that a section was comprised of a tour ofduty. The Service argued that the union’s proposalwould disrupt operations (AIRS # 20518). A similarcase involved another union proposal to change aprovision on reassignment sections frominstallation wide/one section to sections by tour(AIRS # 32364). The arbitrator accepted theproposed change on the basis that an installation-wide section was detrimental to seniorityconsiderations.

In AIRS # 22010, an arbitrator ruled that theService had not met its burden of proving that apre-existing provision establishing section by tourand LSM, FSM operations constituted anunreasonable burden. The Postal Service arguedthat projected automation made it necessary toexcess employees by scheme combination. Theunion opposed the change, arguing that excessingcould result in senior employees losing their tourof duty. The arbitrator ruled that management’sargument was purely speculative since theevidence did not permit a finding that tentatively-scheduled automation was certain to occur (AIRS# 22010).

In a fourth award, an arbitrator denied thelocal union’s proposal to change an existingLMOU identifying sections by 41 pay locations andby tour (AIRS # 26721). The union sought toidentify sections as all full-time employees bysalary level and by tour, with each best qualifiedposition and salary level in a separate category(one section per position for the entire installation).It asserted that the current language imposed ahardship because the Postal Service could targeta pay location for extinction and decide whichemployees would be assigned to that location, andas a result senior employees could becomeunassigned regulars while junior employees wouldreceive preferable assignments. The union alsoargued that the language is in conflict with Article37.3.A.7.d and its proposal would protect seniorityrights of employees. The arbitrator determined thatthe union had not met its burden of proving thatthe current language, which had been in effectsince 1987, was unworkable throughout priorexcessing or that any grievances had beenbrought alleging a violation of Article 37.3.A.7.d.

Another arbitrator rejected a local union’sproposal to add language to its provision onsections for reassignment that “all part-timeregulars will be declared excess to the needs of asection by juniority before full-time regulars are

declared excess.” The arbitrator indicated that thelanguage of Article 12.5.c.4.a states that theidentification of assignments comprising for thispurpose a section shall be determined locally bylocal negotiations, but does not say that all part-time regulars may constitute a section. He alsosaid that since 12.5.c.4.b merely indicates that “fulltime employees, excess to the needs of thesection . . . shall be reassigned outside thesection” and does not specifically say that thisshould be accomplished after excessing part-timeregulars, the addition of this language would beinconsistent with the pecking order set out bynegotiators at the national level. This arbitratorsaid he is “reluctant to state that the part timeregular employees were inadvertently left out of a‘pecking order’ established either for the removalfrom a section or reassignment within a section orreassignment from an installation” (AIRS # 22515).

19. Parking Spaces

The Assignment of Employee ParkingSpaces

Parking facilities are usually very limited andnegotiations in this area may be difficult.Management has been instructed to only negotiateon the allocation of existing parking spaces inexcess to the needs of the Postal Service. Localsmay wish to reserve parking spaces for the localAPWU officers and/or stewards. Many locals havesuccessfully negotiated reserved spots for theunion.

In reserving spots, arbitrators have allowedparking to include spots for Directors of the Clerk,Maintenance, and Motor Vehicle Crafts, in additionto the President of a local, in order that the unionmay conduct its business properly (AIRS # 21006,21007, 21008). In addition, in a case where a setnumber of spots was reserved by craft foremployees in the Letter Carrier Craft and the ClerkCraft, an arbitrator allowed a change to a LMOUprovision to provide for parking space allocationon the basis of proportionality of the number ofemployees in each craft thereby allowing ClerkCraft employees to receive 10 of the 14 spotsallotted for employees (AIRS # 20624). In anothercase, a local union representing 22 employees ina facility with only 10 parking spaces for APWUand NALC employees was able to obtain areserved parking space for a SSPC technician, anAPWU representative, two APWU bargaining unit


members, and a handicapped employee withoutregard to union affiliation. The arbitrator reachedthis decision after balancing the interests of theNALC that had 98 employees at the facility withthose of the APWU (AIRS # 27246).

In a case in which management had only 40parking spaces available following closure of aparking garage and five of those spaces werepermanently assigned to carriers with drive-outagreements and an ODIS clerk, an arbitrator foundthat management acted fairly in assigning parkingspaces on a combined seniority basis includingboth letter carriers and clerks. He rejected theletter carrier union’s proposal to assign parking ona proportional basis by craft on the basis that lettercarriers constituted approximately 70% of theemployees at the facility. The arbitrator found thatuse of a combined seniority list for parking wouldensure that members of both union’s bargainingunits “are treated equitably in this very limitedemployee asset of free parking” (AIRS # 39584).

However, when parking is alreadyinadequate, an impasse arbitrator will be reluctantto reserve spaces for the union (AIRS # 500). Inone case the arbitrator did not feel that Item 19envisioned reserving spots for the union (AIRS #500 and 5420), yet another arbitrator rejected thePostal Service’s argument that the NationalAgreement does not require management tonegotiate on the subject of reserved parkingspaces for union officials (AIRS # 33168). In anyevent, a parking program administered on a firstcome, first serve basis may be acceptable (AIRS #4945, 6008, 6565, 7162, 7380, 8484 and 20752).Also, an arbitrator has required preferred parkingfor certain vehicles in response to Clean Air Actlegislation (AIRS # 21258).

In another case, the arbitrator held that thePostal Service could unilaterally take backmanagement spaces which the union had beenallowed to use. The arbitrator stated that this wasnot a binding contractual provision, but merely aconcession granted by the Postal Service (AIRS #10231). In addition, an arbitrator has rejected aunion proposal to restrict reserved parking used bymanagement employees by only allowing reserveparking for the handicapped, the postmaster, andAPWU craft designees (AIRS # 26883-887). Thelocal had sought this provision in order to increasethe number of first-come, first-served parkingspots for bargaining unit employees. Also, aproposal to allow parking for maintenanceemployees that is similar to supervisors’ parkingwas rejected. The arbitrator determined that the

union’s desire to ensure that parking spaces wouldbe available closer to where the maintenanceemployees worked was outweighed by costconsiderations of management (AIRS # 33804).Moreover, a proposal to increase the number ofparking spaces by reestablishing spaces that hadbeen taken out of use due to construction wasrejected by an arbitrator as outside the scope ofItem 19 (AIRS # 27513). The arbitrator ruled thatArticle 30, Item 19 only covers the assignment ofparking spaces, not the creation of parkingspaces. He also denied a proposal for permitparking on the basis that there was no evidenceshowing that employees were disadvantaged bythe present system of first-come first-servedparking.

On the other hand, locals have beensuccessful against the Postal Service’s efforts toargue that pre-existing provisions represent anunreasonable burden. For example, a parkingprogram in effect for eight years, which includedfour parking spaces on postal premises foremployees, was upheld by an arbitrator despiteattempts by the Postal Service to reduce availablespots for employees to one. The arbitrator ruledthat the pre-existing parking provision did notconstitute an unreasonable burden since it did not“substantially interfere with the Service’s primaryoperation, the safety of postal patrons oremployees, or lessen the Service’s competitiveposition in the market of delivery of services.” Inaddition, the arbitrator found that the PostalService failed to show that alternatives available tocorrect an inadequacy in patron parking would be“ineffective or prohibitively costly in terms offinancial or other resources of the Service” (AIRS# 20659). In addition, an arbitrator in another caseruled that the Postal Service did not meet itsburden of proving that continuation of a parkingprogram which allowed for five unassigned parkingspaces and parking on a first-come first-servebasis constituted an unreasonable burden.Though there was evidence that there had beenan increase in the number of vehicles assigned tothe facility, vehicles were larger than predecessorjeeps, and there were more vehicles than spaces,the arbitrator found that there was no showing thatthe congestion negatively impacted the operationand safety of the post office (AIRS # 32367). Athird arbitrator concluded that management did notdemonstrate that continuing to grant a parkingspace to the senior clerk in a post officeconstituted an unreasonable burden. Amanagement official testified that retaining the


space resulted in insufficient space for customerparking, drop shipments, a snow plow and currentdelivery vehicles driven by carriers because theyhad become larger. The arbitrator found that hertestimony was unsupported by “empiricalevidence” or “hard facts that any of these issueshave become problematic in the past.” (AIRS #40703)

Parking Security

Article 20, Section 2 of the NationalAgreement addresses Parking Security. While thissection does not call for local negotiations (in fact,management takes the position that it is notsubject to local negotiations) some locals havebeen successful in negotiating provisions forparking lot security; such as lighting and fencing.

Arbitrator Mittenthal’s national interpretativeaward (AIRS # 22) makes clear there is definitelyno prohibition against negotiating anything duringthe local negotiation process that is not in conflictor inconsistent with the National Agreement.However, the local may not take through theimpasse procedure anything but the specifictwenty-two (22) items.

Subject for Labor-ManagementMeetings

Significantly, the National Agreementprovides that parking is a proper subject fordiscussion at local Labor-Management meetings.Agenda items for such meetings may include thelocation of new, additional, or improved parkingfacilities; the number of parking spaces; securityand lighting in the parking areas, as well as similarsubjects. The local Labor-Management Committeemay make recommendations to the installationhead concerning such subjects.

Enforcement of Parking Rules

Locals must also remember that the PostalService may both prescribe and enforce parkingrules and regulations. In several cases, arbitratorshave held that when adequate notice of such ruleshave been given, the Postal Service may issuetickets and/or tow cars parked in reserved orrestricted spaces (AIRS # 9672-9678, 9385-9392,10070 and 10929-10931).

20. Union Leave

The Determination as to Whether AnnualLeave to Attend Union Activities RequestedPrior to Determination of the ChoiceVacation Schedule is to be Partof the Choice Vacation Plan

Locals should be aware that Article 24,Section 2.B. (also see Article 10, Section 3.F) ofthe National Agreement covers this particular item.Unless the local negotiates differently, the time anofficer, steward or delegate takes leave for unionactivities such as a convention will be charged tothe choice vacation period. An example where alocal has been able to successfully negotiateotherwise is AIRS # 7334. In that case, thearbitrator accepted a proposal, whereby leavegranted to attend union conventions would not becharged to an employee’s choice vacation period,as long as no other employee is prevented fromobtaining his/her first choice for vacation. Also, seeAIRS # 33389 in which an arbitrator upheld a pre-existing provision that leave for state or nationalconventions shall not count towards choicevacation period numbers.

However, proposals on leave for unionmeetings or business have usually been rejectedas outside the scope of mandatory bargaining orinconsistent with the National Agreement (AIRS #7369, 21111, 21871 and 21888). For example, aprovision requiring that all union leave beautomatically approved for meetings, hearings,and arbitrations was found to be inconsistent withthe Postal Service’s right to manage (AIRS #21111). In addition, a provision requiring that leaveto attend official union functions and activities notbe considered part of the choice vacation periodand allowing it to be charged to annual leave orleave without pay at the employee’s option wasrejected. The arbitrator indicated that the issue ofthe type of leave to be granted to attend unionactivities is outside the scope of Article 30;however, he noted that the issue of appropriateleave to be charged for state and nationalconventions is addressed in Article 24. He alsodetermined that the reference to union activitiesand functions resulted in a proposal that is toobroad to uphold since management would berequired to accommodate any function or activitythe union determined to be official. The arbitratornoted that the union defined union activities andfunctions to include union training classes, and the


Clerk Craft and President Conferences, forexample (AIRS # 39753). Moreover, a provisionrequiring that union representatives working onunion business be granted leave immediately or ifnot possible, within two hours after such a request95% of the time was held to be in conflict withArticles 17.3 and 24.2 of the Agreement (AIRS #21888). Item 20 is also related to Item 8, and bothshould be considered when formulating local leavepolicies.

21. Craft Items

Those Other Items which are Subject toLocal Negotiations as Provided in the CraftSupplemental Agreements

22. Seniority, Reassignment,Posting

Local Implementation of this AgreementRelating to Seniority, Reassignments, andPosting

Items 21 and 22 cover a wide variety of itemsmany of which overlap because most of the localimplementation of seniority, reassignments andpostings are also specific items in the local craftsupplemental agreements that call for localnegotiations.

APPLICATION OF SENIORITY

Clerk Craft - Article 37, Section 2.C.Maintenance Craft - Article 38, Section 3.C.Motor Vehicle Craft - Article 39, Section 1.E.

In general the Postal Service will instructlocal management not to negotiate day-to-dayapplication of seniority, allegedly because it isbeyond the scope of local negotiations. To thecontrary, the negotiated provisions of the above-referenced craft articles, clearly provide that theday-to-day application of seniority is open tonegotiations at the local level. Some locals havebeen successful in negotiating day-to-dayapplication of seniority provisions. However, localsshould be aware of the difficulties involved innegotiating some kind of movement fromassignment to assignment by seniority.

Day-To-Day Seniority

Arbitrator Garrett in three different cases laid-out the guidelines for evaluating “day-to-dayseniority” provisions (AIRS # 124, 145 and 812,AIRS # 145 was decided under 1971 Contractbefore the list of 22 items was placed in Article30). The following are points he made:

1) Proposals concerning “day-to-day seniority”are mandatory subjects for bargaining underItem 22. Impasses reached are arbitrable. InAIRS # 812, Arbitrator Garrett found that theunion’s proposal was inconsistent with theNational Agreement, but nonethelessnegotiable. He provided a 60-day period forfurther negotiations.

It is common knowledge that many initialproposals in collective bargaining areunsound, impractical, and sometimes evenfrivolous or unlawful, yet such proposals maysometimes be so modified throughnegotiations as to eliminate objectionablefeatures. A local proposal which may seem toseek a result in conflict with the NationalAgreement - but which nonetheless seeks todeal with a genuine problem within the scopeof Article XXX - accordingly still may providea basis for good faith negotiation. In any suchnegotiation, of course, either party may andshould resist agreement upon anycompromise or alternate solution which wouldconflict with the National Agreement.

Nothing in the present Article XXX authorizesa refusal to negotiate concerning a localproposal, on one of the subjects delineated inParagraph B thereof (AIRS # 812, pp.36 and37).

However, see AIRS # 32366 in which anarbitrator ruled that a 1977 Central RegionAgreement rendered a union’s appeal of thePostal Service’s proposal to delete a LMOUprovision allowing day-to-day seniority inarbitrableat impasse arbitration. The arbitrator relied on the1977 document,that barred the union fromarbitrating grievances or impasse matters on theissue of day-to-day seniority, in spite of findings inthe Garrett award and 1995 Joint Questions andResponses on Article 37 that recognized thevalidity and enforceability of day-to-day seniorityprovisions. She said that the regional agreement


still is controlling since there has been no action to“void or abrogate” the agreement. Note that thisaward was issued in the case of a local located inthe Central Region, and cannot be applied toagreements of locals in other regions.

Consistency of Day-To-Day Seniority

For cases where day-to-day seniorityproposals have been upheld as consistent with theNational Agreement, see AIRS # 4905 , 7236,20736, and 27016. In addition, in AIRS # 27016 anarbitrator found the Postal Service had not met itsburden of proving that a day-to-day seniorityprovision was an unreasonable burden. Also, inAIRS # 26726, an arbitrator upheld a provision,requiring that temporary assignments of full-timeemployees from one section to another be doneby juniority according to required skills, and foundthat management did not prove it was inconsistentwith the National Agreement or represented anunreasonable burden.

For cases where such proposals have beenfound to be inconsistent, see AIRS # 4903, 6187,6347, 6558, 6776, 7261, 7265, 20922, and 20795.In another case, a union proposed to addlanguage to the LMOU to provide that whenpositions become temporarily vacant, notices willbe posted for qualified craft employees to applywith the awarding of the bid to the senior-qualifiedapplicant. The arbitrator ruled that the union’sproposal would place an unreasonable burden onthe Postal Service. He indicated that managementwould be prevented from taking steps to assureefficient operations and would be faced with adomino effect in having to fill a series of vacanciesbrought about by the bidding process (AIRS #26637).

2) Proposals that locally implement specificseniority provisions of the NationalAgreement, even when the proposals call formovement by seniority, are consistent withthe National Agreement.

The Postal Service challenged the followingprovisions contained in the Boston LMOU:

Temporary Reassignments: Normallymanagement will recognize the application ofseniority in the daily reassignment of workersfrom section to section except recognizedstewards of the APWU who shall remain in thebid section during such reassignments.

In AIRS # 124 Arbitrator Garrett explainedthat the Boston LMOU provision is consistent withthe National Agreement:

The present case arose under the 1975National Agreement where Article XXX alsocontemplates that a local memorandum maybe negotiated to provide “Localimplementation of this Agreement relating toseniority, reassignments, and posting.” (Item22 in Article XXX) Article XII, Section 3-B ofthe National Agreement also notes that“specific provisions for posting for each craftare contained in the craft posting provision ofthis Agreement.” Article XXXVII of the NationalAgreement applies to the Clerk Craft. ItsSection 2-E-5 requires that:

“Normally, the successful bidder shall work theduty assignment as posted.”

Given this contractual context the heart issuehere is simply whether the local Article XII-Breasonably “implements” Article XXXVII,Section 2-E-5. Unlike either Union proposal inthe two earlier cases, this local provision doesnot require strict application of seniority inmaking within tour reassignments. Itcontemplates only that seniority “normally” willbe observed. This word of limitation is exactlythe same as that which introduces ArticleXXXVIII, Section 2-E-5.

Article XXXVII, Section 2-E-5 in itselfreasonably would seem to provide somelimitation upon the full exercise ofManagement discretion under Articles III andVI in reassigning employees within tours. Atthe least, it would mean that casuals, flexiblesor other employees not holding bidassignments within the Section “normally”would be moved out first. To the extent that thelocal Article XII-B seeks to provide additionaldetail as to the circumstances under which asuccessful bidder (in a section) is entitled to“work the duty assignment” which was postedfor bid, it hardly would appear to conflict withany provision in the National Agreement. Itonly applies “normally” and as the evidence inthis record amply demonstrates - there aremany circumstances under which a “normal”guide cannot control because efficiency wouldbe impaired, or too little time might be


available to consider relative seniority underthe given circumstances.

On this record, therefore, it must be held thatArticle XII-B of the Local Memorandumrepresents a legitimate effort to “implement” aseniority provision of the National Agreement,within the meaning of Item 22 of Article XXX. Itthus is valid and enforceable in accordancewith its terms (AIRS # 124, pp. 19-21).

For similar proposals upheld as legitimateimplementations of the National Agreement, seeAIRS # 5197 and 6607. For proposals held invalidas going beyond mere implementation, see AIRS #5236, 5237, 6098, 7584 and 7594. In addition, seeAIRS # 26789-94 in which an arbitrator rejectedprovisions to normally recognize the application ofseniority in the daily work schedules of MotorVehicle Craft mechanics on a rotating basis, tonormally recognize the application of seniority inthe daily assignment of work orders and schedulesof Maintenance Craft employees on a rotatingbasis, and to normally recognize the application ofseniority in the daily reassignment of workers fromone section to another section. Note that a union’sproposal that “[n]ormally, custodial laborers willchoose from among available job picks byseniority on a daily basis” was rejected by anarbitrator. He found that with the consolidation ofLevel 1 cleaners, and Level 2 custodial employeesinto the Level 3 custodial laborer position, thepractice of daily selection of available assignmentsby seniority within the custodial laborerclassification ceased. The arbitrator also acceptedmanagement’s argument that such a practice hasnot been in place at this facility for ten or moreyears, and the union exchanged specific dutyassignments for such positions for the upgrade ofall employees to Level 3 custodial laborers. Thearbitrator then concluded that because the currenttext of the LMOU relating to the Maintenance Crafthas been in existence for thirty years withoutchange and there has been an absence ofgrievances on job assignments since the time thethree labor grades were consolidated and dailypicks were eliminated, it is not convincing tomaintain that the existing LMOU is inadequate forthis facility (AIRS # 41134).

Seniority as Exclusive Rule

3) In AIRS # 145 and 812 Arbitrator Garrettruled that proposals calling for strictmovement of employees by seniority in everyinstance when workload fluctuations requirereassignment to be inconsistent with theNational Agreement. He rationalized thatproposals which removed any managementflexibility in dealing with reassignments wouldconflict with Article 3 and would go beyondthe intended scope of local negotiations.Proposals requiring that “seniority be the rule”when effecting reassignments have beenconsistently rejected by impasse arbitrators(AIRS # 5239, 5290, 6188, 7261, 7264, 8502,and 21222).

In addition, a provision that “temporarydetails will be posted for bid and shall not exceedthirty days without the Union’s concurrence” wasruled to be inconsistent with the NationalAgreement (AIRS # 26670-72). Despite unionwitnesses’ testimony that posted for bid wasintended to mean posted for bid within themeaning of Article 25.4 of the National Agreement,the arbitrator stated that the language wouldrequire the Service to post all temporaryassignments on a city-wide basis because postingwas defined in that way by the previously existingprovision in the LMOU. He stated that thismeaning would be inconsistent with Articles 25.4,37.2.D.6.e, 13.2.C and 13.4, 37.3.C, 38.B, 39.2.B,39.3.E, 38.6.A.6 and 39.3.J of the 1994 NationalAgreement. In addition, he found that the 30-daylength of the details would be inconsistent with theService’s right to assign employees to trainingprograms which may exceed 30 days.

Also, an arbitrator ruled that a union’sproposal on reassignment of part-time flexibles didnot fall within the scope of Item 22 of Article 30and was inconsistent with the National Agreement.The provision called for reassignment to be doneby qualified volunteers first and then if morereassignments were necessary, by inverseseniority, in circumstances where it is necessary toreassign part-time flexibles to another tour orfacility. The arbitrator reasoned that the languageof this provision did not serve to implementNational Agreement provisions in Article 7.2.B and12.5.B.8 that were cited by the union as some ofthe foundation for its proposal (AIRS # 34355).

However, see AIRS # 33490 in which anarbitrator accepted a union’s proposal to carry


forward a provision that allowed Special DeliveryMessengers the opportunity to replace other Clerk/Messengers on temporary details and requiredthat selection for these details be made on thebasis of seniority.

It is suggested that locals negotiatingmovement by seniority should try to write aprovision that calls for normal movement byseniority. Your proposal will be more likely tosurvive an “in conflict” challenge if:

a) It specifies certain circumstances in whichseniority might not prevail.

b) You can cite specific seniority provision(s) ofthe National Agreement that your proposal isattempting to implement.

It would be helpful to point to one or moreprovisions in the National Agreement that aremore specific than Article 30.B.22 or theApplication of Seniority provisions for theindividual crafts.

SENIORITY LISTINGS

Clerk Craft - Article 37, Section 2.C.

This provision provides for the posting andfurnishing to the local union of a seniority list on asemiannual basis. Many locals have elected for amore frequent listing such as quarterly.

Maintenance Craft - Article 38, Section2.F, 2.G.1 & 2, and 3.D

SENIORITY

A. Maintenance Service

B. Maintenance Installation

C. Maintenance Preferred prior to June 25, 1992

Parties should negotiate which seniority willbe used for scheduling of overtime and holidaywork as well as for annual leave sign-up.

Seniority list must be posted and an updatedcopy shall be furnished quarterly to the localunion.

Motor Vehicle Craft - Article 39, Section1.F

This section provides simply that a currentseniority list be posted in each installation and thatsuch listing be provided to the local union on aspecified frequency.

POSTING AND BIDDING - CLERKCRAFT

Article 37 has many provisions that directly orindirectly relate to posting and bidding. You shouldreview the provisions of Article 37 and your LMOUto ensure that you are utilizing its’ terms andapplication properly. For example, the terms asdefined in Section 1 of the National Agreement(e.g. duty assignment, bid, abolishment, reposting)have very specific meanings. Another examplewould be language expanding bidding among full-time and part-time regulars. Improper use of termsor application of the provisions of Article 37 couldadversely affect the application of your LMOU.

Note on Part-Time Regular Bidding: If yourlocal agreement addresses a bidding or postingsituation in terms of full-time, you shoulddetermine if you wish to eliminate references tofull-time. An example: If the local agreement statesthat full-time duty assignments will be reposted ifthe starting time changes over one hour, you maywish to strike full-time so that the language wouldapply to part-time regular duty assignments.

Article 37, Section 1.C

Language in this provision makescomputerized or telephone bidding mandatorywhen computer bidding becomes available to allclerks in a facility. Where computer bidding is notavailable, bids can be submitted in writing or bytelephone.

Article 37, Section 3.A.1

It should be noted that the time period forposting newly established and vacant dutyassignments is 28 days. Your local agreement canprovide for a shorter period.


Article 37, Section 3.A.1.a.1(a) & (b)

These provisions allow residual vacancies tobe posted concurrently for PTF preferencing andPTR bidding. Locals should consider negotiatingthe mechanics of how to implement theseprocedures including time frames for posting,awarding and placing the successful PTR into theduty assignment. Language exists for placementof the PTFs.

Article 37, Section 3.A.4.b, Reposting

Care should be made to prevent minorchanges from resulting in reposting. However,such changes as the addition or deletion ofschemes, changes in the principle assignmentarea are of major consideration to employeeswhen a duty assignment is posted initially. Careshould also be taken to protect the rights of theentire bargaining unit, when negotiating provisionsthat would determine when a duty assignmentshould be reposted. Provisions which allow theincumbent the option to keep a duty assignmentwhen changes are substantial should be avoided,they invite game playing and may circumvent theseniority rights of others.

Some locals have negotiated provisionswhich allow the union the sole right to determinewhether the duty assignment is reposted. Thisapproach requires the local to administer thesereposting rules fairly and equitably. It is better tonegotiate concrete rules on repostings which arenot discretionary.

Article 37, Section 3.A.4.c

Some locals have negotiated provisionsallowing incumbents to retain the duty assignmentwhen there is a time change in excess of onehour, subject to the approval of the local union.While some locals have negotiated provisionsallowing the incumbent the option of following theduty assignment regardless of time change. It isrecommended that the option of accepting a newreporting time be restricted to as short a timeframe as possible and subject to the concurrenceof the union. This would eliminate game playingand give senior employees more opportunities tobid. Keep in mind that reporting times is also amajor consideration to employees when biddingon duty assignments. Note that in AIRS # 41329an arbitrator denied a union’s proposal to change

existing language, that “[a] position shall not beposted for bid when reporting time is changedmore than one hour. Management must consultwith the Union President prior to change.” Theunion proposed that the provision stated insteadthat “[a] position shall be posted for bid whenreporting time is changed more than one hour.Management must consult with the UnionPresident prior to change.” The arbitratordetermined that the union failed to present a“convincing need” to change the existing practice,since it didn’t present testimony of employees whohad been adversely affected by changing startingtimes or show that any of the employees affectedfiled grievances.

If this provision is not negotiated, theincumbent shall not have the option of acceptingthis new starting time. This is a very importantissue that should not be overlooked.

It should be noted that the reporting timerelevant to this provision for purposes ofcumulative changes is that which was effective onNovember 21, 2006.

Article 37, Section 3.A.4.d.

This section provides that duty assignmentsfor part-time regulars are reposted due to changesin hours, off days or duties. Also, if a scheme orskill is added to a PIR duty assignment, theAgreement requires reposting. A skill is anyrequirement on a duty assignment which must bepassed in order to be declared the successfulbidder, e.g. typing, bulk mail, window, machine,driver’s license. The CBA also limits the repostingof Level 5, 6, and 7 duty assignments toemployees in the same or higher salary level. Theuse of the word status makes the repostingprovisions clear that full-time duty assignments arereposted to full-time clerks and part-time regularduty assignments are reposted to part-time regularclerks.

Article 37, Sections 3.A.5. & 6

This portion of Article 37 deals with theprocedure for date stamping written withdrawal ofbids. Cancellation of bid may also be processedby telephone or computer, with a confirmation, inorder that it be official.


Article 37, Section 3.A.7.d

This portion of the Agreement clearly statesthat best qualified duty assignments are inseparate sections by position title. The parties maywant to determine locally whether or not to splitthese sections by tour as well for excessingpurposes within the installation.

NOTE: Locals should determine in Item 18 ofArticle 30 how the categories of best qualified aredefined, e.g. a section by tour or office-wideregardless of tour.

Article 37, Section 3.D, Length ofPosting

The notices shall remain posted for 10 daysunless you negotiate a different time locally.

Article 37, Section 3.F.2, Assignment ofSuccessful Bidder

The successful bidder must be placed in thenew assignment within 28 days except in themonth of December. The local agreement may seta shorter time period. Generally, attempts toshorten this time period have been unsuccessful(AIRS # 7385, 7391 and 8485). Locals also shouldbe mindful of new language negotiated in the 2006National Agreement that is contained in Article37.3.B.1 (at page 106, tentative 2006 NationalAgreement).

Article 37, Section 3.F.3.a

This portion of the Agreement deals withdeferment periods for scheme training. TheAgreement provides that normally, the employeewill begin the required training within 10 days afterthe posting of the senior bidder, excludingDecember. However, the parties may want tonegotiate a time frame to start this training afterthe senior bidder is identified. Additional languageallows for a delay in the start of scheme training ifleave was pre-scheduled to be taken within thefirst 28 days of becoming the senior bidder(posting).

The parties may also want to negotiate shortdelays caused by illness or other absence of thebidder. Any such negotiated exception must beshort term because the intent of the Agreement isto fill the duty assignment as soon as possible.

Article 37, Section 3.F.3.b and 3.F.4.b

The parties may want to negotiate requiredwritten notice on all bid postings to alert potentialbidders of the penalties for withdrawing after thestart of training during the deferment period. Thiscan be on the initial posting listing the bids as partof item 8 of 37.3.E or it can be part of the noticeannouncing the results.

Article 37, Section 3.F.4.c

This is another point where the parties maywant to negotiate language when training may bedelayed due to illness or other absence of thebidder. Delays in this regard must be of a shortduration so as not to obstruct the bidding process.

Article 37, Section 3.F.8.c.1, 2 & 3

These portions of the Agreement deal withcircumstances wherein the senior bidderwithdraws or relinquishes a deferment period. Theparties may want to negotiate time frames forgoing to the next appropriate person to fill this dutyassignment. Bear in mind when this portion of thebidding process is reached, the assignment mustbe filled as it is too late to revert the vacancy.

POSTING - MAINTENANCE CRAFT

Article 38, Section 4.B

The Postal Service must post PreferredAssignment Registers and Promotion EligibilityRegisters.

Article 38, Section 4.A.4 & 5 - RepostingBecause of Changes

4. When it is necessary that fixed scheduledday(s) of work in the basic work week for acraft assignment be permanently changed, orthat the starting time for such an assignmentbe changed by 2 or more hours, the affectedassignment(s) shall be reposted, by notice ofintent. An exception to the requirement torepost an assignment where the change instarting time is 2 or more hours may benegotiated locally. If the incumbent in theassignment has more seniority for thepreferred assignment than the senior


employee on the preferred assignmenteligibility register for those off days or hours,the employee may remain in the dutyassignment, if the employee so desires.

5. The determination of what constitutes asufficient change of duties or principalassignment area, to cause the dutyassignment to be reposted shall be a subjectof negotiations at the local level.

Note: It is the APWU’s position that the“principal assignment area” should be negotiated.

POSTING AND BIDDING-MOTORVEHICLE CRAFT

Article 39, Section 2.A.3 & 4 - RepostingBecause of Changes

3. The determination of what constitutes asufficient change of duties, or principalassignment area, to cause the dutyassignment to be reposted shall be a subjectof negotiation at the local level.

4. No assignment will be posted because ofchange in starting time unless the changeexceeds two hours. Whether to post or not isnegotiable at the local level, if it exceeds twohours.

Article 39, Section 2.A.6 & 7 - CalendarYear Repostings

6. When requested by the union, all full-timeregular Motor Vehicle Operator Tractor-TrailerOperator and Vehicle Operator Assistant BulkMail Craft assignments should be posted forbid once each calendar year.

7. All full-time regular Motor VehicleMaintenance Craft duty assignments may beposted for bid once each calendar year uponmutual agreement between the parties at thelocal level. Absent such local agreement,Motor Vehicle Maintenance Craft dutyassignments shall be posted for bid everysecond calendar year, when requested by theUnion.

When including language in an LMOU on thissubject, be sure to insert a provision that once a

year postings for bid will be at the union’s request.Otherwise, once-a-year bidding will becomemandatory because the union will have given upits right to have it conducted at the union’srequest.

Article 39, Section 2.C - Length ofPosting

C. The notice shall remain posted for 10 days,unless a different length for the posting isestablished by local negotiations.

Article 39, Section 2.E.2 - Assignmentof Successful Bidder

2. The successful bidder must be placed in thenew assignment within 21 days except in themonth of December. The local agreementmay set a shorter period.

Industrial Relations DepartmentAmerican Postal Workers Union1300 L Street N.W.Washington, D.C. 20005

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Documents

GUIDE TO LOCAL NEGOTIATIONSapwuiowa.com/Local Negotiations CBR 2007.pdfJanuary/February 2007 Page 5 1) Review your current LMOU, item by item. 2) Gather any necessary information