MEMORANDUM FOR MARYANNE GIBBONS,
GENERAL COUNSEL AND EXECUTIVE VICE PRESIDENT,
UNITED STATES POSTAL SERVICE
Re: Whether a Collective Bargaining Agreement May Require that the United States Postal
Service Apply Seniority Rules to Vacant Positions Notwithstanding Requests by Disabled
Employees for Reasonable Accommodations under the Rehabilitation Act
You have requested our opinion on a legal question that has arisen during collective
bargaining negotiations between the United States Postal Service ("USPS" or "Postal Service")
and the American Postal Workers Union. AFL•CIO ("APWU" or "Union"). See Letter for
Virginia A. Seitz. Assistant Attorney General. Office of Legal Counsel, from Mary Anne
Gibbons, General Counsel and Executive Vice President, USPS, Re: Request for Opinion (Nov.
14, 2011) ("USPS Letter"). USPS and the· Union wish to adopt a contract term requiring that all
assignments to vacant positions comport with the seniority rules provided in the current
collective bargaining agreement ("CBN'). Under this provision, applicable seniority rules would
trump other considerations in allocating vacant positions. even when a less senior employee
requests the position as a reasonable accommodation for his or her disability under the
Rehabilitation Act of 1973, 29 U.S.C. §§ 791. 794 (2006).
You have advised us that the Postal Service has strictly followed a collectively bargained
seniority system for many years and during many labor agreements. You have also
acknowledged that the Rehabilitation Act might require deviation from the seniority rules in
special circumstances, though you maintain that such circumstances would be exceedingly rare.
On that understanding of your consistently applied bona fide seniority system, we agree that, in
the "run of cases," implementation of the proposed provision will not offend the Rehabilitation
Act. Our conclusion follows from the Supreme Courts holding in U.S. Airways, Inc. v. Barnell,
535 U.S. 391. 394 (2002). that "to show that a requested accommodation conflicts with the rules
of a seniority system is ordinarily to show that the accommodation is not 'reasonable . .,, While
special circumstances may require deviation from the seniority system in particular cases, see id.
at 405. you have not asked us to address any particular circumstances here.
Document Type: Memorandum
Craft: Clerk