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American Postal Workers Union, AFL-CIO

COLLECTIVE BARGAINING REPORT

William Burrus, President

Greg Bell, DirectorIndustrial Relations

Voluntary Transfers

An Overview of Issues Associated with Requests for Voluntary Transfers To Another Postal Installation

SPECIAL ISSUE

Issue 08-03 May/June 2008

May/June 2008

The CBR is published by the Industrial Rela-tions Department of the APWU:

Inquiries can be addressed to:

Greg Bell, Industrial Relations Director American Postal Workers Union 1300 L Street, N.W. Washington, D.C. 20005

Arbitration awards may be obtained from APWU Search, your National Business Agent or Regional Coordinator, or the Industrial Re-lations Department at (202) 842-4273. Please note that awards issued recently may not yet be on APWU Search. To expedite obtaining the awards, please designate the CBR issue number and AIRS number of the case(s) you are requesting.

Collective Bargaining ReportTABLE OF CONTENTS

• Introduction ..............................................3• HistoryofTransferMemorandum .............4

The Transfer Rules

• EvaluationStandards ...............................4• ReassignmentRatios ...............................4• ServiceRequirements ..............................5• FilingaTransferRequest .........................5• ContestingaTransferDecision ................6• NewRulesforEmployeesSubject

ToExcessing ............................................7• SummaryofStepsforObtaining

Voluntary Transfers ..................................7

Grievance/Arbitration of Transfers

• BurdenofProof ........................................9• DefinitionofArbitraryConduct

ByManagement .......................................9• “FullConsideration”Requirement

Defined ................................................... 11• SpecificReasonsfor

Denying Transfers ..................................13• ImproperRelianceonFMLALeave/

Disability-Related Absences ...................13

Unreasonable Denials

• SubjectiveorSpeculativeReasons ........15• PoorAttitude ...........................................17• Nepotism ................................................18

Requirement of Excellence Improper

• Re:PerformanceRecord .......................19• Re:SafetyRecord ..................................20• Re:AttendanceRecord ..........................21

Other Issues

• DualStandards .......................................23• USPSNon-CompliancewithRatios .......24• DeliberateViolationofTransferMOU .....25• RemediesinTransferCases ..................26• StatusofaTransferee ............................29• Lock-InPeriodsandReturnRights ........30• ProceduralandOtherArguments ...........30• MutualExchangesorTrades .................33

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HowdoIgoabouttransferringtoanother postal installation? Are there specificguidelinesthePostalServicehas to follow in reaching its decision on a transfer? If I’m not granted a transfer, whatoptionsdoIhave?

These are only a few of the many questions that are frequently asked by individualsseekingtransferstootherpostal installations.

Article 12.6 of the National Agreement,andtheMemorandumof Understanding Re: Transfers (See page 315 of the 2006-2010 National Agreement), as well as many arbitration awardsonthesubjectoftransfersaddressthese concerns. (See page 36 of this CBR for a copy of Article 12.6, and pages 37-40 for a copy of the Transfer Memo.)

In addition, Section 351.6 of the EmployeeandLaborRelationsManual,as well as Articles 37.2.D.7, 38.3.I and 39.1.B.12 address mutual exchanges or trades of career employees. (See page 41 of this CBR for a copy of ELM 351.6, and pages 42-44 for a copy of the craft articles concerning mutual exchanges.)

Foremployeeswhoareimpactedbyexcessing,anadditionalMOUregarding“TransferOpportunitiestoMinimizeExcessing”thatwasrecentlynegotiatedsetsoutspecificrulesthatapplyinthosecircumstances. (See page 381 of the 2006-2010 National Agreement, and

pages 45-48 of this CBR for a copy of the MOU re: Transfer Opportunties to Minimize Excessing.)

Localscanbesthelpindividualemployees by clarifying procedural issues associatedwithvoluntarytransfersaswell as formal obligations required of the PostalServiceunderbothTransferMemosand Article 12. They also can ensure that theServiceiscomplyingwithtermsoftheoriginalTransferMemobyrequestingspecificinformationontransfernumbersandgrievingthedenialoftransfersiftheServicehasactedunreasonably.In the case of transfers desired in the eventofexcessing,localscanensurethatthePostalServiceisgivingpriorityconsideration to these transfers. When such transfers are denied or delayed, local unions can make sure such disputes are forwarded to the appropriate APWU Regional Coordinator.

Arbitration awards that are cited in this article include both APWU and NALC cases, since the original Transfer Memoiscontainedinbothcontracts.Allawards contain an AIRS number and are onSEARCH;however,copiescanalsobe obtained by contacting the Industrial Relations Department.

Greg Bell, DirectorIndustrial Relations

INTRODUCTION

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Employeesrequesttransfersforavarietyofreasons.Somesimplydesireto work in another area of the country. Oftenatransferiscriticaltokeepingfamilies together. An employee may need atransferforpersonalorhealthreasons;aspousemayhavebeentransferredtoadifferentjobinanothercityoranailingfamilymembercanonlyreceivetreatment or care at a particular health facility.Deprivingapostalemployeeofatransfer in these situations can result in the separation of family members and an untold amount of expense and strain on the employee.

In response to arbitrary and exclusionarypolicies,thePostalServiceissueditsfirst“guidelines”formanagerial

consideration of transfer requests on April6,1979(BolgerMemorandum).In1984, this memo was incorporated into the National Agreement and then starting with negotiations for the 1987 Agreement, the memo was further strengthened. During negotiations for the 2006-2010 Agreement, the parties entered into an additionalTransferMOUthatisapplicabletoemployeeswhohavebeenimpactedby excessing. (See page 7 of this CBR under“NewTransferRulesforExcessedEmployees.”)Note, however, that the MOU re: Transfer Opportunities to Minimize Excessing has different rules than those set out in the longstanding Transfer MOU.

Evaluation Standards

UndertermsoftheTransferMemo,“fullconsideration”mustbegiventoallreassignment requests with both gaining andlosinginstallationheadsbeing“fairintheirevaluations.”Significantly,also,the memo prescribes that requests fromqualifiedemployeesshallnotbe“unreasonablydenied”anditsetsforthstandardsforjudgingtransferapplicants’records.

Transferees merely must meet “minimumqualifications”forpositionstowhichtheyseekreassignmentandhave“acceptablework,safety,andattendancerecord[s].”Moreover,supervisoryevaluationsmustbe“valid”and“tothe

THE TRANSFER RULES

point,”with“unsatisfactoryworkrecordsaccuratelydocumented.”

Reassignment Ratios

Inadditiontoprescribingspecificevaluationcriteriaforselectingtransferees, the memo sets up a ratio thatmustbeachievedinfillingvacancieswhentherearequalifiedapplicantsforreassignment. This threshold requirement mustbemet“exceptinthemostunusualofcircumstances.”

ThePostalServicemustfillatleast“oneoutofeveryfourvacancies”fromtransferrequestsinthecaseofallofficesof 100 or more man-years “ifsufficientrequestsfromqualifiedapplicantshave

HISTORY OF TRANSFER MEMORANDUM

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beenreceived.”Inthecaseofofficesoflessthan100man-years,acumulativeratioofoneoutofsixvacanciesisrequiredtobefilledfromtransferrequestsovertheterm of the current contract.

Theseratiosaremerely“minimumstandards”andnotacapthatcanbeimposed by management to limit the number of applicants. Therefore, in order to comply with the memo, management is required to hire no fewer than the numbers set out in the ratio when local economic or unemploymentconditionsorEEOfactorsjustifyhiringfromentranceregisters.

InthecaseoftheMotorVehicleCraft,note that Article 39.1.G.1 also prescribes thatwhenthePostalServiceproposestoopen a new facility, priority consideration mustbegiventoallrequestsfortransferofMotorVehicleCraftemployeesfromotherinstallations before new employees are hired.

Inaddition,Article39.1.G.2providesthatconsiderationwillbegiventoqualifiedMotorVehicleCraftemployeesrequestingtransfers where no employees are qualifiedtobidordesirethepositionthatisavailableatthecompletionofthepostingperiod. (See page 49 for a copy of Article 39.1.G.1 and Article 39.1.G.2)

Service Requirements

TheTransferMemoalsosetsoutminimumservicerequirementsbeforereassignments can be initiated. When an individualisseekingreassignmentwithinthe same District or to an installation in an adjacentDistrict,heorshemustalreadyhaveserved18monthsinhis/herpresentinstallation. The employee is also required to remain in the new installation to which he or she is reassigned for a period of 18 months, unless released by the installation head earlier, before seeking another

transfer.Exceptionsfromthe18-monthrequirement apply: 1) in the case of an employee who requests to return to the installationwherehe/shepreviouslyworked, or (2) where an employee can substantially increase his or her number of hours (eight or more per week) by transferring to another installation as long as he or she meets other criteria, in which case, the lock-in period will be 12 months. Inaddition,employeesservingunderacraft lock-in period must satisfy those requirements before being reassigned to another installation.

Fortransferstoothergeographicalregions,theemployeemusthaveatleastoneyearofserviceinhisorherpresentinstallation prior to seeking reassignment. In addition, if he or she is reassigned undertheTransferMemo,theindividualmust remain in the new installation for a period of one year, unless released by the installation head earlier, before seeking another transfer, except in the case of an employee who requests to return to the installationtowhichhe/shepreviouslyworked. Craft lock-in periods must also be servedbeforebeingreassignedtootherinstallations.

Significantlyalso,theTransferMOUprovidesthat“[u]ndernocircumstanceswill employees be requested or required toresign,andthenbereinstated”tocircumventtheprovisionsoftheMOU.

Filing a Transfer Request

In seeking a transfer, requests should be made by using eReassign which is thePostalService’sonlinereassignment-opportunities and transfer-request system or by submitting a request in writing to the installationheadorHumanResourcesforthe installation(s) to which the employee desires to transfer. The request should

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contain a list of all positions for which the individualisqualified,andthelocationstowhichhe/shedesirestotransfer.Whenusing eReassign, each request for transfer canbeforonespecificDistrictanduptofiveofficesandcraftsperrequest.Also,multiple requests can be made so as to coverotherDistricts.

If it isn’t possible to use eReassign, an employee can submit the same information inawrittenrequestforatransfertoHumanResources or the installation head(s) fortheinstallation(s)towhichhe/shewishestotransfer.Uponreceipt,HumanResources or the installation head must acknowledge the request in writing in a timelymanner(Article12,Section6).HRor the installation head will then seek personnel information about the potential transfereefromhis/herfacilitysuchastheemployee’sofficialpersonnelfile,supervisors’evaluations,andsafetyandattendance records, and will forward them toaselectingofficial.

TheTransferMemoprescribesthatrequests will be considered by installation heads“intheorderreceived…consistentwiththevacanciesbeingfilledandthetypeofpositionsrequested.”eReassign proceduresalsorequirethatactiverequests be processed on a first-comefirstservebasis.Note,however,thattheMOUalsoprovidesthatinstallationheads“maycontinuetofillauthorizedvacanciesfirstthrough promotion, internal reassignment andchangetolowerlevel,transferfromother agencies, reinstatements, etc. consistent with existing regulations and applicableprovisionsoftheNationalAgreement.”

If both installation heads agree that an employee should be reassigned, they must“arrangeformutuallyagreeablereassignmentandreportingdates.”

“Mutualagreement”meansaconsensusmust be reached between postmasters on a reporting date.

Contesting a Transfer Decision

Transfer denials, though ultimately based on a decision by the head of the installation to which an employee is seekingatransfer,aregrievedatthepostal facility from which an employee desirestotransfer.ThoughthisavenueforreviewoftransferdecisionsisnotspecificallyprescribedbyArticle12ofthe National Agreement and the Transfer Memo,itisapparentfromapplicationofArticle 15 under the circumstances.

Severalarbitrationawards,includingAIRS#46374(ArbitratorLevak)andAIRS #46379, indicate that consistent withArticle15.2,Step1(a),anaggrievedemployee or the union must initiate its Step1grievancewiththeemployee’simmediatesupervisor.ArbitratorLevakfound no reason to distinguish transfer-relatedgrievancesfromothergrievancesand noted that language in Article 15 isclearandunequivocalaboutwhereagrievanceistooriginate.However,note that at least one arbitrator has decidedthatagrievancesettlementgranting a transfer was improper since it was agreed to between the union and management’s Step 1 designee at the facility where the employee worked at thetimeofthegrievanceratherthanatthe facility to which he desired a transfer. Hereliedimproperlyonreasoningthatthismanagementofficiallackedauthoritytomakeatransferdecisionovertheobjectionofthemanagementofficialintheother facility. (AIRS # 34195)

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New Rules for Employees Subject to Excessing

TheMemoregarding“TransferOpportunitiestoMinimizeExcessing”contains some similar procedures as the originalTransferMOU,buteliminatescertain limitations to transferring that exist under the longstanding memo. All APWU-represented employees in an installation and craft experiencing excessing from the craftorinstallationmayvoluntarilysubmitrequests for transfer through eReassign. Theseaffectedemployeesaregivenpriority consideration(i.e.,“preferredlisting within eReassignbydateorder”)to transfer from an impacted craft and installation.

Employeesseekingtransfersunderthe new memo are required to meet minimumqualificationsforthepositionthatis being sought, but affected employees’ work, attendance and safety records are not to be considered by management when they are applying for transfers due to excessing. Ratios outlined in the Transfer Memoarenotapplicableinthecaseofaffected employees requesting transfer as a result of impending excessing. Also, employees affected by excessing are notrequiredtohave18or12monthsofserviceintheirpresentinstallationbeforerequesting transfers. In addition, craft lock-in periods will not apply to employees whoqualifyforpriorityconsideration;and,neither the gaining nor losing installation can place a hold on an employee’s transfer.

Selections by installations accepting transfer requests are made on a seniority basis, using craft installation seniority from thelosinginstallation.Intheeventofaseniority tie, the tie-breaker method is to firstconsidertotalcareerpostaltime,and

then to look at the entered-on-duty dates. Similar to transfers under the older

TransferMemo,anemployee’sseniorityin the gaining installation is established by therespectivegaining-craftarticleintheCollectiveBargainingAgreementbasedontheemployeebeingavoluntarytransferrather than an excessed employee. Accordingly, when changing from one craft to another, or transferring from one installation to another, employees will begin a new period of seniority.

If an employee requests a transfer and later declines the opportunity, his orhernamewillberemovedfromthepriority eReassign pending request list at the declined location. Such employees immediatelybecomeavailableforinvoluntaryArticle12reassignments.

Same-crafttransferswillbeapprovedbefore cross-craft transfers, and there is no priority consideration for transfers to non-APWU craft positions. In addition,vacanciesinimpactedcraftsor occupational groups under Article 12 withholding are not eligible for transfer requests.

Unlike transfers under the Transfer Memo,anydisputesarisingundertheapplicationoftheTransferOpportunitiestoMinimizeExcessingMOUmaynotbegrievedandareprocessedattheArealevel.DisputesthatcannotberesolvedtherewillbeforwardedtotheHeadquartersLevel.

Summary of Steps for Obtaining Voluntary Transfers

The following are some steps an employeeshouldbeadvisedtotakewhenheorsheisrequestingavoluntarytransfer:

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Apply for a transfer using • eReassign or write to the installation head or HumanResourcesforthe installation to which he or she wishes to transfer andlistallpositionsforwhichhe/sheisqualifiedandiswillingtoperform,andspecifyalllocationstowhichhe/shewishestotransfer;Independently check with the •installation head or the local union at thenewinstallationtofindoutforwhichpositionsthePostalServiceishiring. If management is hiring from off-the-street, then the employee may havegroundsforassertingthatheorshe has been unreasonably denied a transfer;Ifanemployeebelievesheorshe•has been unreasonably denied a transfer, the matter should be brought totheattentionofhis/herstewardinthe installation from which he or she seeks to transfer for the purpose of processingagrievanceinthecaseofa desired transfer under the original TransferMOU,orforprocessingadisputeattheAreaLevelinthecaseoftransferssoughtundertheMOUre:transfers in the case of excessing.

Onceatransferisrequested,management should do the following:

Acknowledge receipt of the transfer •requestinwriting;Transmit a work performance •evaluationoftheemployeebyhis/hersupervisortoHumanResourcesorthe installation head for the facility to which the employee desires a transfer (for transfers under the originalTransferMOU);Forwardanemployee’sattendance•and safety records to the potential gaining facility (for transfers under

theoriginalTransferMOU);Considertheaboverecordsalong•with other requests in the order receivedanddeterminewhethertoapproveordenytherequest(fortransfers under the original Transfer MOU);Approveordenythetransferrequest•in writing with the reasons for the decision and forward this decision to the employee.

It is suggested that the union take the following steps:

Determine if the employee is eligible •foratransfer;i.e.whetherheorshehasbeeninhis/hercurrentinstallation for the required 12 or 18 month period before seeking a transfer under the original Transfer MOU,andwhetherhe/shemeetstheminimumqualificationsforpositionstowhichhe/shehasrequestedtobereassigned;Contact the local union at the facility •to which the employee seeks to transfertofindoutanypertinentinformation about the transfer history atthatfacility;Filearequestforinformation•pertaining to the number of employees hired off the street in the facility to which an employee requests a transfer, and seek documentation such as accident reports, attendance information includingForms3971or3972if an employee’s safety record or attendance is an issue, and supervisoryevaluations(inthecase of a transfer under the original TransferMOU).

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NOTE: The information that follows on voluntary transfers under the original Transfer MOU was obtained from reviewing many arbitration awards and EEO cases, as well as contractual and handbook language, for both APWU and NALC cases over the time period from 1984 until the present.

Burden of Proof in Grievance Procedure

Theunioncanadvanceargumentssuch as the following on behalf of a person whose transfer has been denied.

The gaining installation didn’t afford •full consideration and unreasonably denied the employee’s request basedonareviewofhisorherqualificationsandtheneedsoftheinstallation; Local considerations may not •prevailovertheneedtocomplywith ratios for hiring transferees consistentwiththeTransferMemoprovisions.

In establishing that denial of an employee’s transfer was unwarranted, the union has the initial burden of proof. However,onceatransferapplicantdemonstrates that he or she has a satisfactory record and has minimum qualificationsforpositionstowhichhe/she has requested reassignment, he or she has established a prima facie case that a transfer is warranted (AIRS #46374). The burden then shifts to the PostalServicetoshowthatthestandardsit has used are not unreasonable and the denial of the employee’s request complied with applicable memo guidelines. If the Servicedoesnotsatisfactorilyprovethat

it has met these guidelines or the union has adequately rebutted the USPS’s contentions,theunionwillprevailandatransfer will be ordered. In reaching a decision, arbitrators will usually determine whether management’s actions in denying a transfer were arbitrary, capricious or discriminatory. See Airs #27308 where an arbitrator indicated that a union’s challenge to denial of an employee’s transfer request maybeonthebasisthat“management’sdecision was unreasonable under the facts, or capricious, arbitrary, or discriminatory.”

ArbitratorshaverejectedargumentsthattheManagementRightsclause(Article3),whenconsideredinconjunctionwiththeTransferMemo,givestheServicebroad latitude to determine when or who willbegrantedatransfer.Theyalsohaverefused to accept the contention that the TransferMemomerelyprovidesguidelinesand cannot be interpreted as mandatory requirements.(AIRS#46374;AIRS#35752; AIRS#46375;AIRS#27308;AIRS #26472).

Definition of Arbitrary Conduct by Management

Arbitrator Benn reasoned that the standardforreviewingthePostalService’sdecisionsinatransfercaseis“whetherornot it engaged in arbitrary or capricious conduct.”Hethendefinedarbitraryactionas“whenitiswithoutrationalbasis,justificationorexcuse.”(AIRS#17134)

A second award indicated that “arbitralreviewofthereasonablenessofmanagement’s action seeks to determine if the action is arbitrary, capricious, or discriminatory.” ArbitratorHaucksaidthat

GRIEVANCE/ARBITRATION OF VOLUNTARY TRANSFERS

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thetermarbitrary“meansnotgovernedby principle and refers to whether the actiontakenbyManagementwasbasedonpersonalpreferenceorselection.”Hestatedthat“[c]apriciousreferstoconductwhichisunpredictable–subjectto sudden, unexpected, or unannounced change”and“discriminatorymeansshowingdifferentiationorfavoritisminthetreatmentofemployees;suchasafailuretotreatallequally.”Inacasewheremanagement rescinded an employee’s approvedtransferonlyfivedaysbeforeitwas to become effective,thearbitrator ruled that the union providedapreponderance of evidencethat…theEmployer’srescind [sic] of theapprovedtransfer is unintentionally capricious.” Hestressedthatthoughtheevidencedidn’tshowthatmanagement didn’t act in good faith, the PostalService“subjectedthegrievanttosudden, unexpected and unannounced change.”Henotedthatthegrievanthadbeen“officiallytoldhistransferwasapproved,allowedtoprepareforthemoveat his own expense, and informed after the last reasonable moment that the transfer wasrescinded.”“Managementtreated[thegrievant]inamannerwhichproducedanunintentionalbutharshresult,”accordingtothearbitrator,andits“actionfailstopassthetestofreasonableness.”(AIRS #30608)

In another award, Arbitrator Shea ruled that“theunexplainedinabilityofpostal management at the San Juan office[fromwhichanemployeesoughta transfer] to maintain, to locate or to

providetheGrievant’sattendancerecordstotheOrlandoPersonnelOffice[towhichthegrievantdesiredtotransfer]violatedits obligations under Section D. of the Memorandum[onTransfers]….”Hereasonedthatsuchaviolationdeprivedthegrievantofhiscontractualrighttohavehistransferfullyconsideredbythe“ReceivingLocation.”Moreover,whenmanagementinthePuertoRicoofficedecidedtocloseoutthegrievant’stransferrequest because it could not locate his attendancerecords,this“constitutedade

facto denial of that request without proper consideration”and“therefore,arbitrary and capricious [action] …inviolationoftheAgreement.”(AIRS # 31097)

In addition, ArbitratorMilesmadereferencetothePostalService’sown“DecisionAnalysisTool”whichrecognizesthearbitraryandcapriciousstandard,inacaseinvolvinga transfer request denied based on an employee’s safety record. The Analysis Tool, which is to be used by postmasters, statesthat“’[a]naccidentreportcanonly be used when it is determined that the accident was due to the employee’s unsafe act. You must be able to show that a denial for a safety-related reason isbasedonarepresentativetimeperiod,reasonable length in time, and that the employee was responsible for the unsafe act. Do not establish any arbitrary or additional standards.’”[Emphasissupplied]Then, the arbitrator concluded that the PostalServicefailedtomeetthisstandard:itfailedtoshowthatanoccupationalinjuryconstituted an accident due to an unsafe

“Arbitral review of the reasonableness of management’s

action [in denying a transfer request] seeks to determine if the action is arbitrary, capricious or

discriminatory.”

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actandtheevidenceprovedthatavehicleaccident was only minor and occurred four years before an employee’s transfer request. (AIRS #46057)

“Full Consideration” Requirement Defined

Onearbitratordeterminedthattherequirementthatmanagementgive“fullconsiderationtotheworkrecordsofemployees”meansthattherecords“mustbecarefullyconsideredinlightof the employee’s full work record and individualcircumstances.”ArbitratorStallworthstressedthat“thenotionof‘fullconsideration’mustinvolvemorethanacursory or perfunctory examination of the work, attendance and safety records of an employeewhoseeksreassignment”andrequires“managementtodulyinvestigateandconsiderallfactorswhenreviewingarequestfortransfer.”Tosupportthisfinding,hereliedonlanguageintheTransferMemoandalsoinSection261oftheEL-311Handbookthatprovides “[w]henqualifiedemployeesarenotavailablewithinaninstallation,qualifiedapplicants from other postal installations mustbeconsidered.”NotethattheEL-311hasbeenreplacedbytheEL-312Handbookwhichhasasimilarprovisionin Section 232. 41. (See page 50 of this CBR.) In this case, the arbitrator found that management’s reason, that the employee hadaninsufficientsickleavebalance,was inadequate because management failedtotakeintoconsiderationevidencethattheemployee’sleavemayhavebeencoveredbyFMLAandtheemployeehadbeeninvolvedinaccidentsthatmayhaveresultedinsomeofhisabsences.Moreover,hecitedthefactthattheemployeedidn’treceiveanydiscipline

for safety infractions or because of attendance problems. (AIRS #34005)

Arbitrator King determined that the PostalService’sfailuretoinvestigatecontradictions between a transfer applicant’s attendance records and a supervisor’sevaluationofthegrievant’swork, safety and attendance record as goodtoverygoodbeforeitdeniedhertransferviolatedthetermsoftheTransferMOU.Hecitedthefactthatthe“MOUdirectsfullconsiderationoftheGrievant’swork,attendanceandsafetyrecord.”Inaddition,hesaidthat“[w]hileanemployee may be denied transfer based on attendance, full consideration demands that work and safety records be factored in beforemakingadecision.”Inthiscase,heconcludedthatthegainingfacility“didnotseek to reconcile what it determined to be a record of unsatisfactory attendance with theimmediatesupervisor’ssatisfactionwith[thegrievant’s]attendanceandhismore than satisfaction with her work performance.”“Adecisionbased[on]such contradictory assessments without anattempttoresolvetheconflictdoesnotamount to the full consideration mandated bythepartiesNationalAgreement,”hecontinued. (AIRS #36538)

In a recent award, Arbitrator Buckalew indicatedthat“[t]hefactthatanemployeehas no disciplinary record does not by itself require management to grant the [transfer] request, but where the employee requestingthetransferisqualifiedforthework and otherwise meets the criteria of the contract, there must be credible, persuasiveevidencethatthedecisionwas based on a full consideration of the work, attendance and safety records of the employee and thus not arbitrary and capricious.”Hestressedthat “[n]oevidencedemonstratingalessthansatisfactory work, attendance, and safety

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record was proffered here and there is noevidencethat…managementlookedbeyond the perfunctory comments of a fewsupervisorswhoworkedwithhersporadically.”(AIRS#46115)Alsoseefurther discussion of this case in other sections of this article.

In addition, another arbitrator foundthatthePostalService’sfailuretogiveanyconsiderationtoatransferemployee’srecordatthetimeitfilledavacantcustodialpositionin-houseconstitutedaviolationoftheTransferMemo.Moreover,sheindicatedthateventhough management argued that it could fillthepositionfirstthroughaninternalreassignment before it considered a transfer, such an argument wasn’t raised duringthegrievanceprocedureandtherefore could not be cited to sustain its burden of proof. (AIRS #26472)

In a case in which the evidenceshowedthat a manager in the installation where an employee desired a transfer had neverseenherOfficialPersonnelFolderanddidn’tconsider the losing facility’s evaluationof her work performanceortheOPF,thearbitratorsustainedthegrievance.Also,hefoundthat there was no basis for the manager’s determinationthatthegrievant’saccidenthistoryprovidedabasisfordenialofhertransferrequest.Hefoundthattwooftheincidents, one described as stress-anxiety and the other as dust, and the other two incidents were eight to ten years before

the employee requested the transfer. Moreover,heruledthatreassignmentofa letter carrier from the installation into thevacantcustodialpositionviolatedtheEL-304sincethegrievantwhodesiredtotransferintothepositionwasaqualifiedcustodian. (AIRS #44351)

Also, an arbitrator ruled that the PostalService’srelianceonanemployee’slowsickleavebalancetodenyanemployee a transfer was improper since ithad“anobligationtolookattheoverallworkrecord,andfurthermore,tofindoutthe circumstances surrounding the use ofsickleave.”Inthatcase,ArbitratorFranklinorderedthatthegrievantbeofferedthefirstpositiontoopeninhispresent grade or one grade below for whichhewasqualifiedintheFloridaofficestowhichhehadpreviouslyapplied.(AIRS #19332)

Another arbitrator indicated that the Postal Servicefailedtocomply with the TransferMemo’srequirement by merely placing an employee’s name on a list for reassignment since other employees ahead of

thegrievantonthatlistwhoreceivedreassignmentswereineligiblebyvirtueoftheirlengthofservice(i.e.18monthsfor transfers within a geographical district or 12 months for transfers outside a geographical district). Also, Arbitrator DruckerfoundthattheSanJuanofficedidn’tprovideessentialinformationtothegrievantandthelocalinatimelyway

An arbitrator ruled that the Postal Service’s reliance on an

employee’s low sick leave balance to deny an employee a transfer was improper since it had “an obligation to look at the overall work record, and furthermore, to find out the circumstances

surrounding the use of sick leave.”

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which delayed his consideration for a transfer.Finally,thearbitratorfoundthatinformation on the employee’s attendance that had been transmitted to the gaining officehadbeeninaccurate.Basedonthesefindings,thearbitratororderedthatinformation that is accurate and current be sent to the gainingoffice,and also to the union and grievantsothey“mayreviewthem for any inaccuracies within the matters that aresubjecttoobjectiveverification.”Inaddition,shedirectedthatif the employee still wished to transfer, he begivenanotheropportunitytotransferupon making another written request. She stressedthathisrequestbegiven“fulland fair consideration consistent with the provisionsoftheMOU.”(AIRS#42710&42712).

Specific Reasons For Denying Transfers

Factorsthathavebeenconsideredsufficientfordenyingtransfershaveincluded attendance and safety reasons, aswellasevidenceofdisciplinerecords.(SeeAIRS#46375;AIRS#46389;andAIRS#46376).However,managementhastoprovideaspecificreasonfordenying a transfer request and support it withspecificevidence.Inonecase,anarbitrator indicated that management’s “generalstatementthatanimpartialreviewwasconsideredand[agrievant’s]transferrequestwasnotapproved”wasinsufficient

to uphold its decision to deny the employee’stransfer.Henotedthatduringthegrievanceprocedureandatarbitration,“managementfailedtostatewhetherthegrievant’swork,attendanceorsafetyrecord was a factor for his transfer not beingapproved.”(AIRS#44054).Another

arbitration award found that the Postal Servicefailedtooffer“ascintilla of information”in support of an“affirmativedefense, that proper consideration

wasafforded[toagrievantseekingatransfer].”Thearbitratornotedthatthegrievant’sfirsttransferrequestwasneveracknowledged and following his second request, he was informed that the Postal Servicewasunder“hiringconstraints”andtheonlywayhecouldobtainapprovalwasiftheArealevelprovidedit.However,hefoundthatthePostalServicepresentednoevidencethatsuchhiringconstraintsexistedorthatArealevelapprovalwassought. Arbitrator Pecklers thus sustained APWU’sgrievance.(AIRS#39410)

Improper Reliance on FMLA Leave/Disability Absences

Also see AIRS # 45794 where an arbitrator noted that reliance on absences ofanemployeethatarecoveredbytheFamilyandMedicalLeaveActordisciplinethat has been rescinded and is no longer “live”isinappropriateindecidingtodenyan employee’s request for a transfer. In another case, an arbitrator found that

An arbitrator indicated that management’s “general statement

that an impartial review was considered and [a grievant’s] transfer

request was not approved” was insufficient to uphold its decision to

deny the employee’s transfer.

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therewas“norationalbasis,justificationorexcuse”forthePostalService’sdenialof an employee’s transfer request, citing her poor attendance record, since the employeehadneverbeendisciplinedfor attendance-related problems, her sickleaveusage“whichwastakenformaternity purposes has not been shown tobeoutofline,”andshehadonlybeentardyforafewminuteintervalsononlytenoccasions during the two years prior to her request. (AIRS #17134). Also see AIRS #34005,citedpreviously.

Inaddition,exclusivereliancebythePostalServiceonanemployee’slowsickleavebalancetodenyhistransferrequestwasfoundtobeaviolationoftheRehabilitation Act since management was fullyawaretheemployeeusedsickleaveforoperationsduetoaservice-connectedphysical disability. The disabling condition, a knee impairment, did not impact the employee’s ability to perform the essential dutiesofhisjobasacustodianthatwasalso the position to which he sought atransfer.TheEqualEmploymentOpportunityCommissionorderedthatthePostalServiceconductaninvestigation

into the employee’s entitlement to compensatory damages due to its failure totransferhimtoafacilityinHawaii,andprovidetrainingintheobligationsandduties imposed by the Rehabilitation Act to its managers. It noted that the employee had already been transferred totheHonoluluPostOfficebythetimeofitsdecision.Alsoinitsruling,theEEOCstressed that management failed to show that undue hardship would be posed by excusing the employee’s disability-related absences. It cited an August 27, 1993 MemorandumtoManagersonPostalServiceEmployeeRequestsforTransferswhichstatesinpart:“’[w]ewouldalsostrongly suggest that where there are one ortwoquestionswithregardtotheviabilityof the employee for the position, i.e., suchaslowsickleavebalance,thatitisincumbent upon responsible management to obtain additional information into that situation.’”(Rajterowksiv.Runyon,EEOCAppealNo.01956733,1/5/1998)Also see pages 51-52 for a copy of the Aug. 27, 1993 Memorandum to Managers re: Employee Requests for Transfer.

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Subjective or Speculative Reasons for Denials

In one of the earlier decisions that wasfavorabletoatransferee,ArbitratorDobranskiindicatedthattheServicecould not base its refusal to transfer anemployeeonsubjectivefactors.(AIRS #35752). This arbitrator, along withtwoothers(ArbitratorLevakinAIRS #46374 and Arbitrator Barker in AIRS #46375), disagreed with the Service’scontentionthattheTransferMemodelineatedprinciplespermitting“broadmanagerialdiscretion,”andheldthatthememoconstitutes“enforceablestandardsorcriteria”whichnarrowlyrestrict managerial discretion. Another arbitratoroverturnedthePostalService’sdenial of an employee’s request for transfer in part because it was based upon“impropersubjectivespeculationby…management.”Thearbitratorcitedthe fact that management improperly reliedonevidencethatthegrievanthadbeen on light duty while suffering from carpaltunnelsyndromeandfrominjuriesresulting from an automobile accident. The arbitrator found that such factors hadnotreducedthe“grievant’slongtermlevelofperformance”asevidencedbythefact that the employee passed a physical examination taken to secure her transfer (AIRS #27308).

ArbitratorHauckalsoruledthatthePostalService’sdenialofanemployee’stransfershouldbeoverturnedbecauseitwas“arbitrary.”Heindicatedthat“actionisarbitrarywhenitiswithoutconsideration and in disregard of facts and circumstances of a case, without rationalbasis,justificationorexcuse.”The

arbitrator determined that management inthePennsylvaniafacilitytowhichtheSeattle employee wanted to transfer deniedherreassignmentonthe“basisofaninaccurateevaluation:ofthegrievant’sOPF;ofthegrievant’seasilyascertainableworkhistoryasexperienced,judgedand openly shared by three different Seattlemanagers;and,ofthegrievant’smedicalcondition.”Hefurtherfoundthatmanagement“actedarbitrarilybysubmitting [the employee] to a physical examination which she passed, and thendecidingthatthegrievant’sphysicalexaminationrevealedproblemswhichjustifiedtransferdenial.”(AIRS#27308)

In another award in an NALC case, Arbitrator Williams cited a 1993 MemorandumforUSPSAreaManagersonTransferswhichsaidthat“[w]hileweunderstand that attendance is extremely important to all our operations, the use ofsickleavebalanceperseasasoledetermining factor is inappropriate. This is especially true in those situations where sickleavewasusedforaonetime‘seriousillness’ and other than that attendance was morethansatisfactory….Wewouldalsostrongly suggest that where there are one ortwoquestionswithregardtotheviabilityof the employee for the position, i.e., suchasalowsickleavebalance,thatit is incumbent upon responsible management to obtain additional information into that situation.”[Emphasis supplied] The arbitrator determined that where an employee was bypassed continuously while 15 other employees were reassigned to the gaining facility out of a total of 60 new employees added to the facility, management at the gaining facility failed to seek more information regarding the

UNREASONABLE DENIALS

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employee’ssickleaverecordwhentherewas no explanation regarding the reasons fora16-hoursickleavebalance.ThearbitratornotedthatthegrievantinalettertothePostalServiceprovidedsomeinformation that indicated he had on off-dutybackinjuryin1988inwhichhehadtobeadvancedadditionalsickleavebuthe had no back problem at this time, and alsohewashospitalizedfortenweeksina VA hospital. In addition, he found that forthelastsevenmonthsof1994,duringtheyearthegrievantsoughtatransfer,he had taken only two days ofsickleave.Arbitrator Williams concluded that“moreinformation in regard to thesickleavebalance was needed”and “[i]fithadbeenreceived,it probably wouldhavechanged the grievant’sstatusfromabypassedqualifiedtotransferatthenextopening.”(AIRS#46377)

Another arbitrator stressed that “[c]onsiderationsgroundedbothintheliterallanguageoftheMemorandumof Understanding [on transfers], and in the guiding spirit and intendment of the 1984 memorandum from which it gains its genesis, require that management abstainfromimplementingharsh,over-restrictivelimitationsontransfers,andthatthereasonsfordenyingaspecifictransferbesetforthindetail.”Moreover,heindicatedthat“[c]onsistentwith

concepts of due process, generally, and the requirements of the National Agreement,specifically,arbitraryandcapriciousresolutionsareimpermissible.”In addition, the arbitrator said that since selections among competing transfer requestsoccur,“uniformstandardsandcriteriamustbeestablishedandfollowed.”In this case, the employee was denied a transfer because of attendance reasons while 15 employees were transferred into the facility to which she desired a transfer. Theattendancedeficienciesrelieduponby

management were in a year in which thegrievantwas pregnant and included seveninstances of absences tied to nonscheduled days. However,theemployee’s record showed that for the following

elevenmonths,theemployeehadnoabsences. Arbitrator Barker indicated thatthePostalServicewasrequiredto“comeforwardwithspecifics,showingthat,eitheronanindividualbasis,takingintoconsiderationarepresentativetimeperiodreasonableinlength,thegrievant’sattendancewasdeficientorunsatisfactory;orinacomparativesense,measuredagainst other applicants for reassignment withwhomthegrievantwasappropriatelygroupedandcategorized,herattendancewasinferiorornotsufficientlymeritorioustowarrantapproval.”HefoundthatthePostalServicefailedtomakethisshowing,

Arbitrator Barker stressed that “[c]onsiderations grounded both in the

literal language of the Memorandum of Understanding [on transfers], and in the guiding spirit and intendment

of the 1984 memorandum from which it gains its genesis, require

that management abstain from implementing harsh, over-restrictive limitations on transfers, and that the

reasons for denying a specific transfer be set forth in detail.”

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and remarked that another employee who had been granted a transfer had a similar recordasthegrievant.(AIRS#46378)

In another award, an arbitrator indicatedthatthough“absenteeismmustbeamajorconsiderationingaugingwhether someone is to be accepted for atransfer”,managementatthefacilitytowhichthegrievantsoughtatransferfailedtotakeintoconsiderationthatthegrievanthadnotbeendisciplinedandthatoverhalf of the employee’s absences were scheduled as well as being related to his service-connecteddisability.Shestressedthatthegainingfacility’s“failuretotakeintoaccounttheGrievant’sservice-relateddisability and the twenty-four hours that he needed for VA appointments is a serious matter.”ArbitratorGold,however,declinedto base her decision on reasoning that the gaining facility’s standard of a 3% absence rate, with anything less being a reason for denying a transfer, was unreasonable orabasistosustainthegrievance.Sheindicatedinsteadthatthegrievant’srecordfell within that standard. (AIRS # 20845)

Poor Attitude as Inappropriate Reason for Denial

InAIRS#35752,theServicedeniedan employee’s request for transfer due to poor attitude ratings by the employee’s supervisorandsimilarreflectionsofthe employee’s conduct by the head of the installation to which he wanted to transfer. The arbitrator found that there wasnospecificevidencetosupportthenegativesupervisoryevaluationsandthatthesupervisoryevaluationsonthewhole rated him satisfactory in all other performance categories. In addition, the arbitrator was struck by the fact that the supervisorycommentsreflectedonthe

grievant’sstrongunionaffiliationswhichcast a discriminatory light on the transfer denial.Suchsubjectiveandambiguousperceptions could not be considered a basis for denying the employee a transfer.

ArbitratorHardin’sdenialofanemployee’s request for transfer on the basis that he was unable to get along with his co-workers, and could not perform thedutiesofhisjobforabriefperiodwasconsidered improper (AIRS #46379). The arbitrator indicated that the Postal Servicecouldnotrelyonpoorattitudeor performance since these incidents occurred shortly after the employee startedworkforthepostofficeandanevaluationhadratedhimsatisfactoryandrecommended that he be retained as a permanent employee.

ArbitratorHardinalsosuggestedthatthePostalServicewasbarredfromalleging reasons such as poor attendance for its transfer decision since it did not raisethisobjectioninitsletterdenyingthegrievanthistransfer.

In another case, an employee had remarkedtothepostmasterofanofficeto which he desired a transfer that he didn’t“getalong”withmanagementverywell, and such a comment was one of the reasons for denying his transfer. ArbitratorFullmerindicatedthatwhilesuchacommentshowed“alackofjudgment”,the employee claimed he only meant he didn’tgetalongwithsupervisorswhodidn’tdirecttheworkforceefficiently.Also,he stressed that if an employee’s work record had been affected by not getting alongwithhissupervisors,hewouldhavebeendisciplined.However,thearbitratorfoundthatthegrievant’stenyearsatthefacility from which he desired a transfer didn’t result in any disciplinary action for insubordination. Therefore, he concluded, there was no accurate documentation that

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his work record was unsatisfactory. (AIRS # 33373)

Inarecentcaseinvolvinganemployee seeking to transfer back to a facility to which she continued to be assigned loaner hours and where she previouslyhadworkedeightyearsearlier,theMDOdeniedhertransferonthebasisthat“itwouldnotbeinthebestinterestofpostaloperations…toacceptyourtransfer.”TheevidenceshowedtheMDOinformedtheunionthathereliedonsupervisoryrecommendationstodeny the requested transfer. The head of the gaining installation questioned threeoftheemployee’ssupervisorsathis facility who made written statements bye-mailregardingthegrievant.Twocriticizedherin“generalterms”.Oneindicatedthattheshe“requiresalotofattention”and“sheisadisruptiveforce,atbest”;theothersaidshehad“lessthanacceptableworkperformance”.However,theformeradmittedinthegrievancerecord that he hadn’t disciplined the grievantorissuedanyofficialdiscussionsduetoherbehavior,andthelatteracknowledgedshehadn’tsupervisedherwhileshewasaloanerandnevercounseled or disciplined her. The third supervisorinterviewedinformedtheMDOshe had no problem with the transfer request, and the postmaster of the losing facility had no complaints about thegrievantorhertransfer.ArbitratorBuckalewfoundthattheevidencefailed to support a requirement that supervisoryevaluationsbe“validandtothe point, with unsatisfactory work records accuratelydocumented.”Heindicatedthat contrary to the requirement that full considerationbegiventoanemployee’swork, attendance and safety records and notbearbitraryorcapricious,“theMDOmisunderstood his contractual obligation

and relied on undocumented, and seeminglystaleand/ortrivial,complaintstodenyherrequestedreassignment.”(AIRS # 46115)

However,anotherarbitratorrejectedthe union’s argument that reliance on informationprovidedinasupervisoryevaluationofthegrievantthatwasn’taccurately documented was improper. The union had cited the fact that the supervisorhadn’trecentlysupervisedthegrievant.Thearbitratorfoundthatthoughthesupervisoryevaluationratedtheemployee’sattitudeas“poor”,theinstallationheadreviewingtheevaluationdidn’t base his decision on that rating but on his attendance and accident record for whichtherewassufficientdocumentation.Moreover,shenotedthatthesupervisorhadinfactbeenassignedtothegrievant’sunit in the past, and local management candeterminetheappropriatesupervisortocompleteanevaluation.(AIRS#45794)

Nepotism as Reason for Denial

InAIRS#9456,ArbitratorMartinheldthat an employee transfer may not be prohibitedmerelybecausecitizensofthesmall town to which she sought a transfer mightdisapproveofthreemembersofthe same family working at the same postal facility. The employee sought a transfer because she wanted to work in Arnold,Nebraskawhereshelivedratherthan commuting 40 miles to North Platte, Nebraska.TwoofherrelativesworkedintheArnold,Nebraskapostoffice;herfatheras a rural carrier and her husband as a substituteruralcarrier.Thegrievanthadan excellent record and was highly rated byherimmediatesupervisor.

The Postmaster denied the transfer, citing Paragraph 312.312 of the P-11 Handbookwhichforbadetheappearance

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ofimproprietyintheeventrelativesof then-current postal employees are appointed or promoted. (See Section 513.31 of the EL-312 Handbook on page 53 of this CBR for the similar current rule on nepotism or hiring/promotion of relatives) The arbitrator summarily dismissedthePostalService’sargumentonthebasisthattheprovisionwascompletely inapplicable to the situation of transfers.Moreover,thearbitratorsaidthatreliance on local employment conditions to denyatransfercouldnot“beexpandedtoinclude the possibility of gossip, and hard feelingsovertheemploymentofaqualifiedperson to the exclusion of another who did notgetthejob.”

However,seeAIRS#33748wheredenial of an employee’s transfer to a facility where his father was working as asupervisorwasupheldbasedontheabove P-11Handbookprovision.Thearbitrator noted that in this case, the grievantwouldhavebeenworkingunderasupervisorwhodirectlyreportedtothegrievant’sfather.Hereasonedthat“ifthetransferoccurred,and[thegrievant]laterbid on better assignments, or choice work schedules, his request could create the appearance of impropriety in the eyes of thepublicorotherPostalServiceworkersnomatterhowtheissuewasresolved.”

Re: Performance Record

In one of the better reasoned decisionsontransfers,ArbitratorLevakindicatedthattheServicecouldnotlimittransfers to those employees who exhibit “excellentperformance”(AIRS#46374).Under the circumstances in this case, the employee seeking a transfer had been givenanevaluationfromhisimmediatesupervisorashavingan“exemplary”record on the basis of his promptness, reliability and ability to relate with other employees and customers at the facility from which he was seeking a transfer.

Despitethisemployee’ssupervisoryrecommendation, the installation to whichhesoughtatransferrejectedhisapplication citing his lack of experience in performing at the standard casing and deliveryratesfortheareawherethefacility was located. In addition, local management felt that it had the discretion toselectonlythe“verybest”or“most

REQUIREMENT OF EXCELLENCE RULED IMPROPER

excellent”ofemployeesseekingtransferstovacanciesastheybecameavailable.

The arbitrator disagreed with the PostalService’shiringcriteria,findingthata prerequisite of excellence for transferees violatedParagraphsCandDoftheTransferMemobyunreasonablydenyingthetransferrequestandcontraveningfairness considerations as measures forjudgingapotentialtransferee’sperformance.

In another award, Arbitrator Kelly decided that though a maintenance employee who was seeking a transfer toaLevel5MaintenanceMechanicposition wasn’t on the promotion register forthatjob,hehadpassedtheentranceexamination and mailed in his application andthusmettheminimumqualificationsforthejobundertheTransferMemoandshouldhavebeenallowedtotransfer.HealsonotedthatthePostalService’sobjectionatarbitrationthatthegrievantwasn’teligiblefortheMaintenance

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Mechanicjobatthetimeherequesteda transfer had not been raised during thegrievanceprocedureandcouldn’tbeconsidered.(AIRS#39816)However,see AIRS # 41348 where Arbitrator Simon found that an employee who was denied a transfertoanET-10jobinanotherfacilitydidnothavetobeplacedaheadofnewhiresfortheposition.HeacknowledgedthatwhiletheEL-304indicatedthatamaintenance craft employee who is a careerpostalemployeewouldhavepreferenceoverentranceregistereligiblesforavacantmaintenanceposition,hedidn’thavetobeplacedaheadofnewhires in the pecking order until he had beencertifiedasqualifiedfollowingareviewofdocumentationfromhisformerfacility on the issue of work, attendance and safety records.

Note also that an arbitrator refused tooverturnmanagement’sdecisiontodeny a transfer on the basis that it was improperlyimposinga“bestqualified”standard.Heruledthatsuchadecisionwas“notunreasonableorunfair”sincethePostalServicedidn’thavetograntthe request merely on the basis of an employeemeetingminimumqualificationsfor the position. Arbitrator Wolf stressed thatthereferenceintheTransferMOUto“minimumqualifications”onlyrelatestoan employee’s satisfaction of a Standard Position Description’s requirements. Moreover,accordingtothearbitrator,evenifanemployeeisqualified,heorshemaybedeniedatransfer“aslongasthegroundsfordoingsoarereasonable”and“thereisareasonablebasisforbelievingthattheGrievant’swork,attendanceorsafetyrecordisunacceptable.”Inthiscase,sinceoneofthreesupervisoryevaluationsfromlocationswheretheemployee worked indicated that the employee“requiredaddedmonitoring”,

andthesupervisorconsideringtheemployee’srecordknewtheevaluatingsupervisorpersonallyandtrustedhisjudgment,thearbitratorindicatedthathecouldnotsaythatsuchanevaluationwasunreasonable in reaching his decision. (AIRS # 33013)

However,anotherarbitratorstatedthat“[w]hiletheTransferMemoaffordsmanagement some discretion in evaluatingtheminimalqualificationsofapplicantsanddeterminingthattheyhave‘acceptablework,attendance,andsafetyrecords’, management’s discretion is not unfettered.”Hewentontosaythat “[w]hereevidenceemergesthatanapplicant’s transfer request languished on the roster while subsequent applicants bypassedtheGrievantandwereultimatelygranted transfers for which he was qualified,theArbitratoriscompelledtofindaviolationoftheMOUwhichisintendedtoprovideanorderlyandequitabletransferprocess, as opposed to the arbitrary andunreasonabledenialreflectedintheinstantaward.”(AIRS#35206)

Re: Safety Record

In an award, Arbitrator Torres determinedthatthePostalServiceset“anarbitrarilyhighstandardofreviewfortransferapplicants”whereanemployeewas denied a transfer based on his experiencing one work-related accident. Shestressedthat“thisarbitrarilyhighstandard is not in keeping with the language and intent of the National Memorandumwhichsetsastandardof‘acceptable’[regardingwork,attendanceandsafetyrecordsforapplicants].”Themanagerwhodeniedthetransfertestifiedthathereviewedtheattendancefilesof all transfer applicants who had three unscheduled absences. (AIRS #28578)

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Another arbitrator found that the PostalService’srelianceonanemployee’ssubmissionoffiveCA-1formsindicatinghehadbeeninvolvedinaccidentswasinsufficienttoprovideabasisfordenyinghistransfer.Henotedthatthegrievantonly lost work time as a result of one of the accidents and for only a few days, and there was no indication as to whether or not the days off following the accident werescheduledworkdays.Moreover,hestressedthat“allPostalemployeesare obligated to submit an accident report for any and all accidents regardless of howsignificantorseveretheaccidenthasbeen.”Inthiscase,therefore,thePostalServiceisimproperlyrelyingonthisrequirementtodenythegrievantanopportunity to transfer, according to the arbitrator. In addition, Arbitrator Condon foundthattheonlyreasongivenbythePostalServicefordenyingtheemployee’stransfer at the time he requested a transfer wasthatitwasn’t“inthebestinterestsofthisoffice”andtherefore,noexplanationhadbeengiventhegrievant“astowhatwas unacceptable so that he could attempt toimprovehimselfinordertobeeligiblefortransfersometimeinthefuture.”(AIRS #16479)

Also see AIRS #46057 where thePostalService’sdecisiontodenyan employee’s transfer based on an allegedly unsatisfactory safety record wasoverturned.Thearbitratorfoundthatthefirstofthetwoaccidentsuponwhichmanagementrelied,whichinvolvedanoccupationalinjuryduetorepetitivemovement,shouldnothavebeenconsidered since there was no showing it was due to an unsafe act and the other accidentwithavehiclewas“veryminor”since it resulted in no damage or discipline totheemployee.ArbitratorMilesstressedthatthePostalServiceunreasonably

denied the employee’s transfer request sinceitfailed“togobehindthelimitedinformationsetforthintheEmployeeAccidentHistory”andreviewtheForm1769 or speak with management from the employee’s facility about the items listed. (However,notethatinAIRS#45155another arbitrator found that the Postal Service’sdenialofanemployee’srequestfortransferbasedsolelyonthe“safetyandhealthdisplay”ofanemployee’saccidenthistory indicating four accidents within a five-yearperiodofthedateherequesteda transfer didn’t warrant sustaining the employee’sgrievance.ShereasonedthatthePostalServicedidn’thavetorefertoForm1769sincethe“safetyandhealthdisplay”hadabriefdescriptionof the nature of the accidents and the Transfermemodoesn’trequirethat“theseriousness of each accident listed be exploredandevaluated.”)

Re: Attendance Record

An arbitrator in an NALC case ruled thatanArea’stransferpolicyhad“anexcessivelyhighstandardindenyingtransfer requests beyond that required for an employee to be termed satisfactory, and beyond and inconsistent with the standard expressed in the intent and mandate of the memo agreement guidelines.”Hecontinuedthatthe“guidelines[forallowingtransfers]donotsuggesttheDallasrestrictivenessofonlyexceptionalemployeesabovetheaverage,butrathertheopposite,thatthebenefitoftransferconsiderationsaretobe extended to employees in general, ifqualifiedandsatisfactory.”ArbitratorJacobowskiarrivedatthisconclusiononthebasisofevidencethatDallasapprovedonly one carrier transfer as compared to

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hiring142carriersfromtheoutsideoveratime period of approximately six months. The arbitrator also noted that there was merittotheunion’sclaimthatDallas“hasanexcessivelyrigidstandardonsickleaveusage”whichwasshownby“[t]heirgeneralruleofthumb…thatasickleavebalanceoflessthan50%indicatesapoorattendancerecord.”Hequestionedwhether this standard was reasonable givenELMSection513.391.cwhichindicates that in the case of considering anemployeeforrestrictedsickleave“[n]omimimumsickleavebalanceisestablished below which the employee’s sickleaverecordisautomaticallyconsideredunsatisfactory.” (See page 54 for a copy of ELM 513.391.c.) In addition, the arbitrator found that under

theTransferMOU,thereisan“obligationtoconductfurtherobjectiveinquiry”toseeif there are mitigating factors in the case ofanemployeewhohasalowsickleavebalance. (AIRS #46373)

Arbitrator Williams cited Arbitrator Jacobowski’s reasoning in a case where another employee had been denied a transfer to a Dallas facility. The basis for thedenialwas“unsatisfactoryattendance”but the arbitrator indicated that the Postal Servicefailedtogivefullconsiderationtothe employee’s acceptable attendance during the year preceding the transfer and didn’t take into consideration any mitigating circumstances related to his past absences as well as his exceptional work performance record (AIRS #16851).

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Dual Standards by Losing/Gaining Facilities Rejected

Somearbitratorshavedecidedthat where management at a losing facilityappliesonestandardtojudgethe performance and attendance of an employee whereas management at the gaining facility applies another standard to deny the transfer request, there is a violationoftheNationalAgreement.Inone of the cases, an employee was recommendedbyhercurrentsupervisorfor transfer to another facility with a statementthatsheis“anemployeewhoworkshardandisreliable”,andlacksany“livediscipline.”However,theemployeewas denied the transfer by management at the other facility on the basis that she had an unacceptable attendance record. Inreviewingtherecord,thearbitratornoted that for one of two years prior to the transfer, she had only three occasions ofunscheduledsickleavetotaling11.75hours, and in the other year she had two occasionsofunscheduledsickleaveinthe amount of 36.50 total hours. The arbitrator noted that her record showed scheduledsickleaveoccurrencesforthoseyearsbutscheduledsickleaveallowedthepostmasteradvancenoticetolocateanotherpart-timeflexibleemployeetoworkthosehours.Healsostressedthatthesupervisor’sevaluationoftheemployeeindicatedshewas“reliable”andthereforemanagement“wassatisfiedthather attendance record did not interfere withhisutilizationofherservices”atthat facility. Accordingly, he concluded that management failed to afford full consideration to the employee’s record when she applied for a transfer and thus

OTHER ISSUES

violatedtheNationalAgreement.(AIRS#44272)

In another award, an arbitrator indicated that denial of an employee’s transfer on the basis of a lack of explanationforhislowsickleavebalanceand because of a comment that he did not “’getalong’withmanagementverywell”wasimproper.ArbitratorFullmerindicatedthattheevidencedidn’testablishthatthegrievanthadincurredanydisciplineduringhis ten years at the facility from which he desired to transfer, including any for poor attendanceand/orinsubordination.Heremarkedthat“[t]heEmployeris essentiallyaskingforadualstandard”…“[o]neapparentlyistobeapplicableat[the employee’s current worksite] where theGrievant’sattendancewas,atleastthroughdisciplinaryinaction,rated‘accept-able’…[t]heotheristobeapplicableat[the facility to which he desired to transfer] wheretheGrievant’sattendance…wasratedby[thepostmaster]as‘unaccept-able’inatransfersetting.”Hesaidthatthesame considerations applied to the gain-ingfacility’sevaluationthattheemployeecouldn’tgetalongwithsupervisors.Heconcluded,therefore,thatsincethegriev-ant had an acceptable work record and acceptable attendance record during the tenyearsheservedinhiscurrentfacility,“[t]herecertainlywasnothingindicatingthatany‘unsatisfactoryworkrecords’were‘accuratelydocumented’withthelanguageof[theTransferMemo].”(AIRS#33373)

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USPS Noncompliance With Ratios

ArbitratorLevakruledthattransferrequests normally are to be accorded priorityoverregistryhiringsandthattheratiossetoutbytheTransferMemoaremerely“minimumstandard(s)”andnotacap that can be imposed by management to limit the number of transfer applicants (See AIRS #46374). In order to comply with the memo, therefore, the USPS is required to hire no fewer than the numbers set out in the ratios.

Also see an award by Arbitrator Fletcherinwhichhe determined that management failed to comply with the requirement that at least one outofeveryfourvacanciesbefilledby reassignments inanofficeof100 or more man-years.Hecitedevidencethatfollowingreceiptofagrievant’stransferrequestforeitheraclerk or carrier position six employees were hired at the Port Arthur Texas facility towhichhesoughtreassignment.Heindicatedthatthreeclerkvacancies,andone carrier, one rural carrier and one custodianvacancywerefilledbytheseoutsidehiresatthetimethegrievantunsuccessfully sought a transfer. (AIRS #18139) Another arbitrator found that wheretheevidenceshowedthatfouremployeeswerehiredasMPEMechanicsfortheSanJuan,PuertoRicoP&DCatthesametimeanMPEMechanicsought

to transfer to that facility unsuccessfully, thePostalServiceviolatedtheAgreementbynotusingthe“agreeduponfour-to-oneratioinfillingvacancies.”(AIRS#43860)

In another award, an arbitrator found thatthoughthePostalServicesubmittedevidencethat16employeeswerehiredinto the maintenance department around the time an employee was denied transfer and six of them were transferees, it didn’t provideactualdatesforthesetransfersinrelationtothedatethegrievantappliedfor a transfer or show whether the

applicants were “rankedamongthemselves.”(AIRS # 28578 and AIRS # 28777) Another arbitrator acknowledged that though the PostalServicecan place employees invacancies“firstthroughpromotion, internal reassignment

andchangetolowerlevel,transferfromotheragencies,[and]reinstatements”,management has to comply with paragraph“B”oftheTransferMemowhich requires that at least one out of everyfourforofficesof100ormoremanyearsandoneoutofeverysixforofficesof less than 100-man years must be reassignmentsundertheTransferMemoifthoseemployeesarequalified.ArbitratorFranklinthenfoundthat“theService,inseveralfacilitiesinFlorida[to]whichthegrievanthadsoughtatransfer,wenttotheregister before going to the applicants for reassignment.”InonefacilitythePostal

Note that reporting requirements set out in Paragraph C of the

Transfer Memo make it necessary for the Postal Service to disclose to local unions, upon request on

a “semiannual basis,” information necessary to determine if a 1 out of 4 ratio is being met between reassignments and hires from

entrance registers in offices of 100 or more man years.

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Servicehiredacustodianoffthestreetbeforeconsideringthegrievantfortransferthere and thus didn’t comply with the MOU,accordingtothearbitrator.(AIRS#19332)

Athirdawardindicatesthatevenifthere are local concerns for hiring off of the register, when an employee seeks a transfer,thePostalServicemustcomplywith the minimum prescribed ratio of reassignmentsforqualifiedemployeesinrelation to hiring from the street. In this case,however,ArbitratorTorresindicatedthat such a ratio had been met when the PostalServicedeniedanemployee’stransfer request. (AIRS # 12872)

Also,ArbitratorFullmerrejectedanargumentbythePostalServicethatitcomplied with the requirements of the TransferMemobyacceptingtransfersinone out of three cases in which employees werehiredoffthestreet.Hedeterminedthat management’s failure to assert during thegrievanceprocedureorinitsopeningstatement that the postmaster relied upon“localeconomicandunemploymentconditions”or“EEOfactors”inmakingthedecisionnottograntthegrievant’stransferbarred it from arguing that its compliance withratiorequirementsjustifieditsnotgrantingthegrievantatransfer.(AIRS#33373) Also see AIRS # 22766 for similar reasoningregardingthisprovision.

Note that reporting requirements set outinParagraphCoftheTransferMemomakeitnecessaryforthePostalServiceto disclose to local unions, upon request ona“semiannualbasis,”informationnecessary to determine if a 1 out of 4 ratio is being met between reassignments and hiresfromentranceregistersinofficesof 100 or more man years. The national union can obtain access to information onreassignmentrequeststhathavebeenreceivedbyallinstallationsonanannual

basis. The statistics to which the union hasaccesscoverallnonsupervisoryemployees whether or not they are coveredbytheAPWUcontract.

Deliberate Violation Of Transfer MOU

Findingthatapostmaster’sstatementthatnovacanciesexistedatafacilitywasbeliedbyevidencethatnumerouspostalworkers had been hired from off the street. ArbitratorHowardheldthattheUSPShadwillfullyanddeliberatelyviolatedprovisionsset forth in the transfer memo when it denied a transfer applicant’s request. The unionwasabletoprovethatpositionshadbeenavailableatthetimearequestfor transfer was made by introducing the seniority roster which showed that numerous new hires had been made to clerk and carrier positions.

The arbitrator also found that a reason alleged for denying the employee a transfer, his attendance record, was totally lacking merit. The attendance record relied upon by the employer was merelybasedonarecordofsevendaysof absence during a 35-day period when theemployee’sservicewiththeUSPSextendedoveraneight-yearperiodoftime (see AIRS #46381). Proof similar tothatofferedinthiscasemayinfluenceanarbitratortoawardmoreextensiveremedies (See Remedies Section below).

Another arbitrator determined that thePostalServiceviolatedtheNationalAgreement by denying an employee’s transfer where she had only three safety incidents that were not her fault andresultedinnoinjury,shehadnoattendanceproblemasevidencedbynolivediscipline,shehadasatisfactoryworkevaluation,andshehadbeenqualified

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ontheflatsorter.ShestressedthattheNationalAgreementprovidesthat“requestsfromqualifiedemployeeswillnot be unreasonably denied and sound judgmentmustbeexercised”andthat“managersmustnotdenydeservingandqualifiedemployeesopportunitiesfor reassignment because of unfounded reservationsconcerningperformance.”(AIRS #29586)

Remedies in Transfer Cases

Remedies afforded employees who havebeendeniedtransfersimproperlyhaveincludedawardsofretroactivesenioritytothedayheorshewouldhavebeen originally assigned to the position requested or the date another party actually was assigned to the position desiredbyagrievant(AIRS#9456;AIRS#27308;andAIRS#18139).Inaddition,an employee has been awarded monetary remedies for the round-trip mileage incurred because of the continuing need to commute to the postal facility from which she was seeking a transfer ($22.60 per day) for the period of time after shefiledagrievance(AIRS#46381).

Another arbitrator ordered that an employee,whowasremovedduetoherLWOPstatuswhilewaitingtobeacceptedfor transfer, should be made whole for lostbenefitsandwagesfromthedatehertransferrequestshouldhavebeenapprovedincludinganyaccumulatedleavetime taken in an effort to locate another facility into which she could transfer (AIRS #17134). Arbitrator Suardi ordered that thePostalServiceretroactivelypromotethegrievantwhosoughtatransfertothejobintowhichanewhirewasimproperlyplaced and directed also that he be paid all back pay due to the difference in his pay and the other position, as well as

out-of-schedule pay due to differences in the schedules of the two positions (AIRS #44379). A simple remedy due to management’s failure to respond to a request for a transfer in a timely manner, which in this case was approximately fourmonthsafterdiscoveringtherequesthadbeenfiledwithoutaresponse,wasawarded by another arbitrator. Arbitrator SicklesdirectedthatthePostalServiceceaseanddesistfromviolatingtheNational Agreement and awarded the grievantalumpsumpaymentof$175.(AIRS #36598)

In addition, one arbitrator granted an employeealternativeformsofrelief:

To be afforded a prompt opportunity •within a period of 90 days to transfer toapositionintheofficetowhichhedesiredatransfer,or;To delay the transfer for six months •inorderthathecouldhavethetimeto relocate his family back to the cityinwhichtheyhadpreviouslylivedandtowhichhehadsoughthisoriginal transfer (AIRS #46382).

Another circumstance was where an employeewasnotgivenconsiderationforatransferatthesametimeajunioremployee was allowed to transfer into thedesiredfacilityandseveralmonthslaterwasconvertedtoafull-timeregularposition.Thegrievant’stransferwassubsequentlyapprovedbutheremainedapart-timeflexibleinthenewfacility.Thearbitratordeterminedthatthegrievantshould be reimbursed for the difference betweenpayhepreviouslyreceived,asafull-time regular employee in the position he held before the transfer, from the date of his transfer until the date he would be made a full-time regular. (AIRS #18023) Also, when an employee’s transfer was not completed within 90 days as required byParagraphEoftheTransferMOU,

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anarbitratorruledthatthegrievantwasentitled to be awarded ninety minutes of overtimeforeachdayhehadtotravelfrom his home in Albuquerque, New Mexicotothefacilityfromwhichhewasseekingatransfer(SantaFe,NewMexico)and mileage reimbursement at the IRS rate for the one and a half year period it took before he was actually transferred to Albuquerque(AIRS#44243).(However,see AIRS # 27748 where an arbitrator deniedaunion’sgrievanceregardingdelays in reassigning transferees which extended beyond the 90-day period set out by the MOU.)Anotherarbitrator ordered that in addition to granting an employee a transfer, the PostalServiceshould pay him for missedovertimeopportunitiesorforanyout-of-schedule work performed as a result ofthecontractviolation(AIRS#44351).However,seeAIRS#46115whereanarbitratorrejectedas“speculative”aunion’srequestthatagrievantbepaidovertimethatshewouldhaveearnedifshe had been allowed a transfer. Yet the arbitrator awarded her a make whole remedyforlostwagesandbenefitsshewouldhaveearnedinthefacilitytowhich she desired a transfer (excluding overtime),andasenioritydateonemonthafter her initial transfer request (AIRS #46115). Note also that another arbitrator rejectedarequestforcompensationinthe amount of $25 per day for lost annual leaveandadditionalexpenses incurred by an employee seeking a transfer (AIRS #46383).

SincetheTransferMemoindicates

that relocationandinterviewexpenses“willnotbepaid”bythePostalServiceand“mustbeborne”byemployees,arbitratorsfor the most part will refuse to order such broad relief. However,onearbitratordetermined that an employee was entitled to a monetary remedy of $1641.39 due to movingexpensesincurredbecauseoftheunreasonablenessofthePostalServiceactions in cancelling the employee’s approvedtransfer.However,hefoundthat some of the expenses incurred by the employee, such as pay for employee labor,

house paint, painting tools, an unused hotel room, one day ofannualleave,local mileage to buy paint, for example, werenotevenpaid by the PostalService

incircumstancesinvolvinginvoluntaryreassignments.Healsostressedthat “[i]nviewoftheunusualanduniquenatureofthisgrievance,[he]specificallyrulesthat this opinion and award are limited to the facts presented herein and shall not beprecedentsetting.”(AIRS#30608)Another arbitrator determined that an employee, who had improperly been deniedconsiderationforatransferovera four-year period when more than 32 employees were hired, should be awarded avacancyassoonaspossibleandbegranted a seniority date preceding that held by the sixth employee who was hired into the facility. In addition, the arbitrator ruled that his relocation expenses from KansasCity,Mo.totheSt.Thomas,VirginIsland gaining facility be paid to him as if he had been transferred to that facility atthePostalService’srequest(AIRS

Since the Transfer Memo indicates that relocation and interview

expenses “will not be paid” by the Postal Service and “must be borne” by employees, arbitrators

for the most part will refuse to order such broad relief.

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#16754).In a settlement at Step 1 of an

employee’sgrievancechallengingthePostalService’sdenialofhisrequestfortransfer based on his safety record and concerns about his mental handicaps, thePostalServiceagreedthat“[t]heGrievant’srequestforany transfer will beapproved”and“allrestrictedmedicalinformation in the possession of the supervisorwillbedestroyed.”However,when the employee sought a transfer toOrlando,Florida,managementattheOrlandofacilityresponded by denying his transfer based upon his accident and attendance records. The arbitrator determined that a reasonable interpretationoftheTransferMOUrequirementsisthat“itistheheadofthereceivinginstallationwhichisgiventhediscretion as to accepting transfer from otherinstallations.”Moreover,hefoundthat“itwouldhavebeenunlikelythattheGrievantandUnionwouldhavebeenplacated by an assurance of the strained language that a subsequent transfer [bythegrievant]wouldbe‘approved’,subjecttothe‘approval’ofthereceivinginstallation.”Therefore,thesettlement’sprovisionthat“any”transferwillbeapproveddoesn’tallowthereceivinginstallation to bar a transfer, and the PostalServicefailedtocomplywiththesettlement when it did, according to the arbitrator (AIRS #42743).

An arbitrator determined that anemployee,whowasdeprivedofconsideration of his transfer, would be

awarded a Window Clerk position in theofficetowhichhedesiredatransfer“withinareasonabletime,nottoexceedsixmonthsfromthedateofthisAward.”However,sincetheemployeedidn’tindicate a willingness to transfer to any position other than a Window Clerk position when he requested the transfer, andtherewasnoevidencesuchapositionexistedinthepostofficetowhichthe employee wanted to transfer at the time he made his request or that such a positionwasfilledduringtheperiodoftime

management failed to consider his transfer request, the arbitrator declined to award back pay, out-of-schedule pay orretroactiveseniority to the grievant(AIRS#31097).

ArbitratorSilverdeterminedthatanemployee who was awarded a transfer as a result of another arbitration award, shouldhavebeenplacedinaLevel5DistributionClerkjobratherthantheLevel4MailProcessorpositionhewasawardedwhenhewastransferred.Hebased his decision on the fact that if he had been placed on the rolls as of the date of his transfer request, he should havebeenentitledtoaLevel5positionahead of transitional employees who wereplacedatthatlevel.ThearbitratorreliedontheEL-311Handbook,Section261.12whichprescribedthat“generalvacancieswithinaninstallationmustbefilledbypromotingorreassigningcareerfull-time or part-time employees who are performingsatisfactorily,andifqualifiedemployeesarenotavailablewithintheinstallationqualifiedapplicantsfromother

An arbitrator determined that if a transferee had been placed on the rolls as of the date of his transfer request, he should have

been entitled to a Level 5 position ahead of transitional employees

who were placed at that level.

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postalinstallations‘mustbeconsidered.’”NotethattheEL-311hasbeenreplacedbytheEL-312HandbookwhichhasasimilarprovisioninSection232.41. (See page 50 of this CBR.)SincetheTEswhowereplacedinthejobweren’tcareeremployees, and notwithstanding the fact thattheemployeedidn’thaveschemeknowledge, the arbitrator ruled that he shouldhavebeenplacedinthatjobandshould be made whole for the difference betweentheLevel4MailProcessorsalarylevelandthatofaLevel5DistributionClerk from the date of his transfer until hewasultimatelygrantedLevel5status(AIRS #35168).

Another arbitrator ruled that the Postal Service’sloweringinstepplacementofanElectronicTechnicianLevel9who transferred to another facility as a CustodianLevel3violatedtheNationalAgreement. The arbitrator found that the grievant“wasgivenmaterialinformation[before the transfer] that was in error byServicemanagementthatledhimtoacceptalowerleveltransferthathewouldnothaveotherwiseaccepted”,andtobelievethathewouldbepaidatStepCofLevel3.Therefore,ArbitratorFritschordered that management take action to correct his erroneous placement in Step B ofLevel3andcorrectsubsequentsalaryactions that would be affected by this erroneous placement. Also, he ordered thatthegrievantbepaidappropriateback pay for the period in question (AIRS #41569).

Status of a Transferee

AvoluntarytransferunderArticle12.6andtheTransferMemoresultsinareduction in status for an employee from afull-timeregulartoapart-timeflexiblestatus.ThememoprovidesatSectionG

that employees will not be reassigned to full-time regular positions to the detriment ofcareerpart-timeflexibleemployeeswhoareavailableforconversionatthegaininginstallation.Inaddition,itprovidesthatemployees will be reassigned consistent witheachcraftarticle.Theseprovisionsrequire that an employee start a new period of seniority, and in the case of clerksbeplacedatthebottomofthePTFroll (See Articles 37.2.D.6 and 37.2.D.2 & 3.b, 38.3.E, and 39.1.B.3 at pages 55-59 of this CBR).

Note that a Step 4 settlement in a MaintenanceCraftcaseindicatesthatoccupational group seniority from both a former and new installation could not be usedtoplaceaMaintenanceMechanicLevel5,whohadtransferred,onaPERforanMPE-8positionaheadofotheremployeeswhoalreadywereonthePERincludingsevenwhowereMM-5satthenew installation (See page 60 for a copy of the Step 4 Settlement). The APWU andPostalServiceagreedthatwhenanemployee transfers to a new installation, he or she begins a new period of seniority, exceptfordefinedServiceSeniority.(Article38.2.EdefinesServiceSeniorityandincludesalltimeintheMaintenanceCraft regardless of installation.)

See also AIRS #40721 which states thatanemployee“whotransfersbacktoher/hisoriginalinstallationwithinoneyear of the original transfer does not lose seniority per Article 37.2.D.6 due to thespecificlanguageofArticle12.2.Eexemptingsuchemployees.”(See page 61 for language of Article 12.2.E.)

In addition, the number of hours afforded a transferee cannot be guaranteedinadvanceofatransferbecausecontractualprovisionsunderArticle 7, Section 1.A.2 allow management significantleewaytoschedulepart-time

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employees to less than eight hours a day or 40 hours a week of work (AIRS #500617).

However,despitethechangeinstatusofatransferee,theTransferMemomakesit clear that under no circumstances can an employee be requested to resign from his or her position prior to obtaining a transfer and thus protects an employee againstlossofbenefits.

Lock-In Periods And Return Rights

With regard to lock-in periods for an employee who transfers, an award makes itclearthatthe“voluntaryrelease”ofanemployeebyaninstallationhead“excusesthe operation of the lock in periods in the transferMOU.”CitinganNALCaward(AIRS #46384), Arbitrator Buckalew said thattheaward“supportsmyfindingthatthe purpose of the lock-in period is to work as brake on employee transfers of right butsuchbrakesarenotrelevantwhenthe installation head supports the transfer outsidethelock-inperiods.”(AIRS#40721)

TheTransferMemospecifiesthatexceptionstothe12or18-monthservicerequirements in the new facility are when an employee is released earlier by an installation head or requests to return to theinstallationwherehe/shepreviouslyworked. In the case of reassignments withinageographicalareacoveredbya District or to the geographical area coveredbyadjacentDistricts,theMOUalsoprovidesthatwhereanemployeecansubstantially increase the number of hours (8 or more hours per week) by transferring to another installation and the employee meets the other criteria, the lock-in period will be 12 months instead of 18 months.

Inanaward,ArbitratorMarshallruledthatArticle12.2.E“implicitlyindicate[s]thatan employee who requests to return to a prior facility within one year of the transfer, beitvoluntaryorinvoluntaryhasretreatrights.”Therefore,hedecidedthatundertheTransferMOUandArticle12.2.E,anemployee who requested retreat rights to return to a facility from which he obtained avoluntarytransferwasentitledtoreturntothesame“craftand/orinstallationwithinoneyearfromthedate”heleftthatfacility.Hefurtherindicatedthatthedenial of the employee’s transfer back was unreasonable since he had an acceptable work, attendance, and safety record, as well as no disciplinary record at the facility to which he transferred. (AIRS #34794)

Procedural and Other Arguments

Re: Receipt of Request

Severalarbitrationawardshavedealtwith the issue of whether a request for transferhasbeenreceivedbythePostalService.InacaseinwhichthePostalServicecontendedthatithadnotreceiveda written transfer request and therefore properlyassignedanavailablepositionasaBuildingEquipmentMechanic(BEM-07)toanewhire,ArbitratorSuardicredited the union’s argument that transfer requests at the Waterloo, Iowa officetowhichtheemployeedesiredtotransferwere“unorganized.”Hesaidthat“themerefactadocumentmaynotbeinafile‘…isnotdispositiveof(the)issue’ and that the absence of a letter inafile‘…doesnotmeanpersethatitwasnotsent.’”Hefoundtestimonyofthegrievanttobecredibletotheeffectthathepreparedandhand-deliveredthe

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letter requesting a transfer and frequently asked management if any openings wereavailableorexpectedatthefacilityto which he desired to transfer. (AIRS #44379)

Re: Scope of USPS Acknowledgement

Another award concerns the scope ofthePostalService’sobligationunderArticle 12.6 in acknowledging a transfer request. The arbitrator indicated that management’s written acknowledgement ofagrievant’sapplicationfortransferwithout any indication as to why he had not beenselectedfortheposition“technicallysatisfiedtherequirementsofArticle12.6.”“Whileanacknowledgementincludingan indication as to why he had not been selectedforthepositionwouldhavebeena more thorough response under Article 12.6,Management’scontentionthat[it’srepresentative’s]acknowledgement…ofthegrievant’sapplicationfortransfer/downgrade to the maintenance craft does satisfythe…contractregulations.”(AIRS# 33800) Re: Reporting Date Requirements

In other sections of the Transfer Memo,thereisarequirement that no less than 30 days notice be afforded to a losing installation before a transfer is allowed tooccur;however,losinginstallationsarepreventedfromdelayingtheprocessbeyond90days.IfthePostalServicedeviatesfromtheserequirementstheymaybesubjecttopenaltiesimposedbyarbitrators.Forinstance,thePostalService’sfailuretonotifyemployeesthatareportingdatehadbeenvetoedbytheirownpostmasterwasdeemedsufficientgroundsforreinstatingannualleavethat

the employees had used in anticipation of movingontheearlierdate(AIRS#46385).SeealsoRemediesSectionaboveforadditional citations on this issue. Re: Losing Facility’s Authority To Settle Grievance

Additional arguments can be made tosupportagrievanceoveratransferdenial.Onesuchargumentisthatamanagementdesigneeinthegrievanceprocedure lacked authority to settle thegrievance.Inonecase,aunionstewardaswellastheService’sStep1representativetestifiedthatmanagement’srepresentativewasunabletoapprovetransfers. Arbitrator King stressed that the PostalServicehasaresponsibilityunderArticle15ofthegrievanceproceduretoassurethatitsdesigneeshaveauthoritytosettleagrievanceandareawaretheyhavesuchauthority.Heconcludedthatinviewofevidencetothecontraryinthiscase,thegrievancemustbesustained.(AIRS #36538) Also see AIRS # 20845 in which Arbitrator Gold noted that it was inappropriate for a postmaster in a losingfacilitytodenyagrievanceonthebasisthatshelackedcontroloverthepolicyofthegainingfacilitythatrejectedan employee’s transfer. The arbitrator stressedthat“[a]nyemployeefilingagrievanceinonelocationthathasanimpact on another location has the right toexpectthathisorhergrievancecanberesolved.”Inaddition,shecitedArbitratorMartin’sreasoninginAIRS#19236that“thePostalServiceisasingleentityemployer.”AlsoseeAIRS#34794inwhichArbitratorMarshallruledthatthePostalService’sdesigneesatalosingfacilityhaveauthorityundertheNationalAgreementtosettleagrievancedespite

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the fact that a potential gaining facility was notinfavorofanemployee’stransfer.

Re: Stale Discipline

AnotherawardoverturnedthePostalService’sdenialofanemployee’stransferrequest, which cited three suspensions fortardinessinthegrievant’sOfficialPersonnelFolder.Thearbitratorfoundthat the discipline cited was more than sevenyearsoldandshouldhavebeenremovedfromthegrievant’sOPFaftertwoyears.SheruledthatthePostalServicethereforedidnot“give‘fullconsideration’tothegrievant’srequestforreassignmentortofairlyevaluatehispastrecord.”(AIRS#17073) Also see AIRS #46373.

Re: Arbitrability

Though the preferable course of actionistofileagrievancewithin14days from the date a transfer request is denied or soon after learning that an unreasonable delay has occurred since the time an employee’s request was filed,theremaybeinstancesinwhichtheunionlackssufficientknowledgethataviolationexistsduetohavinginadequateinformation. In one such case, an arbitrator determined that a local union’s grievancechallengingthePostalService’sdelay in reassigning an employee was arbitrable despite management’s argument thatitwasn’tfileduntilayearaftertheemployeewasreassigned.Theevidenceshowed that the employee contacted the union immediately following his reassignment to determine whether his contractualrightshadbeenviolatedandthe union initiated requests for information regarding the maintenance department anditsstaffinginSanJuan,PuertoRico.

However,thePostalServicerefusedtoprovidetheinformationandtheunionhadtofileunfairlaborpracticechargeswith the National Labor Relations Board whichfinallyweresettledbytheparties.Theunionthereafterfileditsgrievance.Arbitrator Thomas determined that Article 15.1“precludesthefilingofgrievancesbasedonsuspicionandsupposition”and“[k]nowledgeofthebasisofagrievanceinvolvinginterpretation,applicationorcomplianceisunderstandablyrequired.”She stressed that there were so many variablesforwhichinformationwasnecessarybeforethisgrievancecouldbefiled,suchas“theactualnumberofmaintenancemechanicvacanciesavailable;thenumberofindividualshired,promoted, reassigned, transferred, or reinstatedintoavailablevacancies,whenthesepositionswerefilled,thenumberofreassignments requested, whether local economic, unemployment conditions andEEOfactorsarevalidconcerns,andtheexistenceof‘unusualcircumstances’amongothers.”Also,“[h]oldingthatagrievanceshouldbefiledonthebasisofguessworkleadstoanoverburdenedgrievanceprocedure,”accordingtothearbitrator (AIRS #43860)

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Mutual Exchanges or Trades

AnalternativetotransferringundertheTransferMemoisbyamutualtradewhichinvolveschangingplaceswithanotheremployeewhohasadvertisedthathe or she desires to exchange positions. MutualexchangesaregovernedbySection351.6oftheEmployeeandLaborRelationsManualwhichstatesthat:

.61 General Policy. Career employees may exchange positions (subject to the provisions of the appropriate collective bargaining agreement) if the officials in charge at the installations involved approve the exchange of positions. Mutual exchanges must be made between employees in positions at the same grade levels. The following employees are not permitted to exchange positions:

Part-time flexible employees with a. full-time employees.Bargaining employees with b. nonbargaining employees.Nonsupervisory employees with c. supervisory employees.

Theadvantageofexchangingpositionsviaamutualtradeisthatafull-time regular transferee can retain full-time regular status and all transferees retainsomeseniority,i.e.thatofthejuniortrading employee.

ThecraftarticlesthatcoverseniorityintheeventofamutualexchangeareArticles 37.2.D.7, 38.3.I, and 39.1.B.12 (See pages 42 to 44).

APWUmembersmayplaceandviewads of other members seeking mutual trades on Crossroads which is located on APWU’s website.

In an award in which an employee’s request for a mutual trade was denied, ArbitratorCannavoindicatedthattheELM

(andtheEL-311Handbook)requirethat:“1)theexchangeofpositionsmustbeapprovedbytheofficialsinchargeattheinstallationsinvolved;2)mutualexchangesmust be made between employees in positionsatthesamegradelevels;and3) mutual exchanges of positions does not necessarily mean that the employees involvedtakeoverthedutyassignmentsofthepositions.”(NotethattheEL-311HandbookhasbeenreplacedbytheEL-312Handbook.)Inthiscase,thearbitrator noted that both employees wereatthesamegradelevelanditwasirrelevantthatonewasawindowclerkandtheotheranFSMoperatorsince“theredoesnotnecessarilyhavetobeamutualtakeoverofdutyassignments.”In addition, he found the argument that thePostalServicewasn’ttoconsiderthe request since one of the two parties involvedinthemutualtradedidn’tsubmitawrittenrequest,lackedmerit.Henotedthat management was well aware that both employeesdesiredthetrade.Moreover,ArbitratorCannavorejectedthebasisfor management’s denial of the trade, that there were no clerk openings in the Flushingareaandthatthefacilitywasatcomplement and was suspending hiring andreassignments.HefoundthatthePostalServicewouldnotbecreatingaposition but rather replacing one employee with another. Also, according to the arbitrator,evenifthegrievanttransferredtotheotherfacility,Flushingmanagementwouldhavetoposthispositionforbidandtrain a successful bidder. Citing another award, he further ruled that though mutual exchanges are discretionary,“’thatdiscretionshouldnotbeabused’”and“’absentcriteria…towhichconsiderationofmutualexchangeswouldbesubject,fairnessdictatesthattheEmployer’srejectionof

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thegrievant’srequestbeappraisedusinga‘dueconsideration’yardstick.”Also,“wherea‘dueconsideration’provisionisat issue, management’s determination muststandunlesstheUnioncanprovethat the determination was arbitrary andcapriciousormadeinbadfaith.”Accordingly,ArbitratorCannavoconcludedthat the appropriate criteria for determining whether“dueconsideration”hasbeengiventoamutualexchangerequestisto apply criteria including attendance, discipline,andsafetyrecord.“ForthePostalServicetogive‘dueconsideration’to a criteria that isnotrelevantto the success of a mutual exchange is, in fact, an abuse ofdiscretion,”he stressed. “Onceitisdetermined that the requesting employees are at the same grade level;andonceit is determined thattheyarequalifiedandhavegoodworkrecords,”accordingtothearbitrator,“themutualexchangeshouldbeeffectuated”which was not done in this case. Instead, theFlushingpostmasterreliedon“unacceptableandirrelevantcriteria…todeprivethesetwoemployeesfromhavingamutualexchange”whichconstitutedanabuse of discretion.

ArbitratorCannavofurtherrejectedthe argument that no remedy was availableinthiscasesinceoneoftheemployees seeking the mutual exchange hadresigned.“ForthePostalServiceto rely on this fact in arguing that there isnoremedyavailabletotheGrievant

because there is no one to swap with wouldpermitthePostalServiceto‘eatthefruitoftheforbiddentree’”…sinceitpreventedthemutualexchangeinthefirstplace,accordingtothearbitrator.Hethus ordered that management transfer thegrievanttotheappropriatefull-timepositionintheHartfordConnecticutareawiththeseniorityhewouldhavehadbutfor the improper denial of his request for a mutual swap. (AIRS #42856)

In another case, an arbitrator decided that management’s denial of a mutual exchange, on the basis that the

postmaster deemed it necessary topreservevacanciesforemployees who would be excessed, was improper.Hefound that this “blanketrejectionof consideration of mutual exchanges”…“intheabsence

of some understandable and reasonable explanation, appears contrary to the implicit right of career employees under Section512.4[oftheEL-311Handbook]tobeconsideredformutualexchanges.”NotethattheEL-311hasbeenreplacedbytheEL-312HandbookwhichhasasimilarprovisioninSection717.1.c.(See page 62). Healsodeterminedthat“theconsideration standards set out in Article 12andtheMOUrelativetotransfersareapplicabletomutualexchanges.”Therefore, since there was no consideration of the employee’s request for a mutual exchange, he sustained the union’sgrievance.(AIRS#46386)

An arbitrator found that a “blanket rejection of consideration of mutual exchange” … “in the

absence of some understandable and reasonable explanation,

appears contrary to the implicit right of career employees under

Section 512.4 [of the EL-311 Handbook] to be considered for

mutual exchanges.”

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However,inseveralolderNALCawards,arbitratorshaveupheldmanagement’sdecisiontorejectmutualexchanges. In one case, three employees wantedtoengageinamutualexchange;i.e., one employee desired a transfer to Austin from Tucson, another employee desired to transfer from Austin to San Diego, and a third employee wanted to transfer from San Diego to Tucson. The three-way mutual exchange was denied by Tucson management on the basis that its budgetary restraints placed it under a complement cap and it would not be replacing losses. The union argued that the postmaster’s denial based on budgetary contraints amountedtoa“blanketpolicy”inviolationoftheMemorandumofUnderstandingon Transfers that requires installation heads to afford full consideration to all reassignment requests. At the hearing, the PostalServiceintroducedintoevidenceminutesfromnationallevelnegotiationsontheissueoftransfers.ArbitratorLevakfoundthattheparties“wereconcernedonly with transfer requests made at the timeanofficeisinahiringmode,andwereaimed at making certain that prior to hiring from entrance registers installation heads wouldgivefullconsiderationtotransferrequests.”HethenconcludedthatthissituationdoesnotinvolveArticle12.6oftheMemorandumofUnderstandingonTransferssincetheMOUisconcernedsolelywith“thosesituationswhereaninstallationisinahiringmode”andat“notimewastheTucsonofficeinahiringmode….”Heindicated,however,thatunderthecraftandELMprovisionsonmutual exchanges, the requirement is that“dueconsideration”begiventosuch requests. Since management set forthvalidArticle3economicreasonsfor denying mutual exchanges during its

hiringfreeze,hesaid,itsactioncannotbe considered arbitrary and capricious (AIRS #46387). In a second award, an arbitratoralsodeterminedthattheMOUon Transfers does not apply to mutual exchanges and criteria was absent in the ELMregardingsuchtrades.Heruledthat denial of the employee’s request was proper where hiring at the facility to which the employee desired a transfer was being done only in the case of attrition. (AIRS #46388)

In another award, an arbitrator ruled that the denial of a mutual exchange on the basis of an employee’s record of four accidentsconstitutedaviolationoftheNational Agreement. She determined thatthegrievantwasonlyactingincompliance with the mandates of the PostalServicetoreportaccidents,hewasneverdisciplinedforanyoftheaccidents,andonlyreceivedmedicalattentioninthe case of one where he incurred wasp stings.Shefoundthatthe“solereasonforthedenialoftheGrievant’srequestfor the mutual transfer was the number of reportedaccidentsonhisrecord”basedinpart on testimony of a manager that when a carrier has three accidents, whether or not at fault, he or she is considered to be “apersonsusceptibletobeinginvolvedinaccidents.”CitinginpartELMSection819,whichstatesthat“[e]valuationsmustnotbebasedsolelyonthenumber…of…accidents,butalsoonhoweffectivelythe opportunity for accidents to occur was reduced,”ArbitratorLalkafoundthedenialofthetransferviolatedtheAgreement.(AIRS #46383) See page 63 for a copy of ELM Section 819.

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Article 12.6

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Article 37.2.D.7

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Article 38.3.I

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Article 39.1.B.12

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Article 39.1.G

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Article 39.1.B.3

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Industrial Relations DepartmentAmerican Postal Workers Union1300 L Street N.W.Washington, D.C. 20005

Non-ProfitU.S. Postage

PAIDWASHINGTON,DCPERMITNO.919

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