Old Ideas on Vacancies Die Hard

(This article first appeared in the July-August 2015 issue of The American Postal Worker magazine.)

It seems some old perceptions and misunderstandings die hard, even when confronted with clear and unambiguous facts.

This applies not just to management types, who have a great deal of difficulty learning new things, but also to some arbitrators. There are those who seem to be afraid to do the right thing and some who are overly concerned about how their record will look to the USPS.

One example is the change made during 2010 contract negotiations to Article 38.4.A, which addresses vacant duty assignments in the Maintenance Craft. The changes are shown in bold type below, just as they appear on page 206 of the 2010-2015 Collective Bargaining Agreement. (Note that in the new 2015 contract, the language will carry over and will not be bold-faced.)

“2. All vacant duty assignments shall be posted by notice of intent within 30 days from when vacancy occurs. If a duty assignment has not been posted within 30 days, the installation head or designee shall advise the union in writing as to the reasons the duty assignment is being withheld. If a vacant assignment is reverted, a notice shall be posted within 10 days advising of the date of the reversion and the reasons therefore.

“3. If the current approved staffing package no longer supports continuation of a vacant duty assignment(s) that duty assignment may be reverted, provided it is not being withheld. The union will be notified within 10 days advising of the date of the reversion(s) and the reasons therefore.”

The APWU agreed with the USPS to make these changes in the CBA to address specific needs and concerns of both parties.

The USPS had problems with a 1993 Step 4 grievance settlement, which required management to post vacant duty assignments by a Notice of Intent and fill vacancies if they were not reverted within the proscribed 40-day period.

Many residual vacancies had remained vacant for a long time – sometimes for years. This was primarily due to excessive withholding of vacancies under Article 12. Once an excessing event had occurred, there were leftover vacancies and the Postal Service could have been required to fill those jobs, even after the excessing.

The APWU did not believe it made sense to force the Postal Service to fill a vacancy knowing management would turn right around and excess an employee from the occupational group.

While this scenario was mostly theoretical, the USPS wished to eliminate the possibility that management would be required to post assignments that had been vacant a long time.

We, of course, were interested in something else.

Maintenance Craft officers were concerned about a 2009 award by Arbitrator Shyam Das in Case #Q94T-4Q-C 97040815. There, the issue was Maintenance Management Order (MMO) 28-97, which covered Maintenance Craft staffing and replaced MMO 21-91. We believed MMO 28-7 violated Article 19.

The arbitrator ruled that the changes brought forth by MMO 28-97 were fair, reasonable and equitable since, contrary to our long-standing position, MMO 21-91 did not grant a staffing level that could be enforced for non-custodial positions the way the MS-47 Handbook did for custodial staffing.

Under MMO 21-91, once a staffing level for non-custodial work was established, unless the Postal Service provided us with sufficient duty assignments to perform the work, we challenged the staffing level. Manytimes the challenges succeeded, but sometimes they didn’t and the grievances were denied.

Local fact circumstances were principally the determining factor. At any rate, when Arbitrator Das ruled that MMO 21-91 didn’t provide the protection we believed it offered, the case regarding the changes in MMO 28-97 was lost.

With our staffing levels of utmost concern, we sought ways to improve our position even during a negotiation that for all intents and purposes was a concessionary one. Any positive steps were gained with great difficulty.

When the opportunity came to get language that could address our principle concern on staffing levels, we pursued it and succeeded as best as could be expected.

While the new language in Article 38.4.A.2 and 3 still doesn’t permit us to go directly after additional duty assignments we never had, if a staffing package were to increase that occupational group’s number, the language establishes a “floor.”

Since the USPS had already made the decision on staffing levels, in order to revert (eliminate) a vacant duty assignment, the Postal Service would have to substantiate the decision with a bona fide and approved staffing package. This is in addition to having to specify any other reasons for the reversion.

There are at least two excellent awards on this subject that can be found in APWU Search, Case #E10T-1E-C 13122492 (Boise, ID) and Case #E10T-1E-C 13135527 (Seattle NDC).

The reason those cases are found in APWU Search is because of the reluctance of local managers to accept that there had been a change – particularly since they thought the national award said otherwise.

Those type of local managers don’t seem to want to look past their noses and keep current lest they find out, as the arbitrator in the above case stated, “Second and relatedly, this arbitrator concludes – like Arbitrator Reeves – that the new 2010 language in Article 38.4.A.3 effectively overrules the 2009 Das National Award.”

Please review the cited cases and follow the guidance above if you have any issues regarding the reversion of duty assignments.