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Overtime by Harry Bogert reprinted from the Salt City Post, APWU Local #2 reprinted from the Union Informer, Wichita Falls Area Newsletter The assignment of overtime for full time regular and transitional employees is governed by Article 8 of the National Agreement. The parties reconsidered and substantially revised Article 8 in the 1984 collective bargaining negotiations. That revision was undertaken in an attempt by the parties to deal with a severe problem of excessive overtime imposed on postal employees. As expressed in a memorandum of understanding negotiated by the parties in 1984, the parties recognize: "... that excessive use of overtime is inconsistent with the best interests of postal employees and the Postal Service, it is the intent of the parties in adopting changes to Article 8 to limit overtime to avoid excessive mandatory overtime and to protect the interests of employees who do not wish to work overtime, while recognizing that bona fide operational requirements do exist that necessitate the use of overtime from time to time." In addition, the APWU adheres to a basic philosophical position which has been fundamental in organized labor - that people who would not otherwise have an opportunity to work and earn a decent living, such as unemployed workers or part time flexible employees with insufficient hours, should be given an opportunity to work after regular employees have worked a reasonable number of hours at a fair rate of pay. Thus, premium pay has been recognized as a deterrent against excessive overtime work assignments by management, and as an encouragement to management to spread work among workers who would otherwise be underemployed or unemployed. Although the parties carefully considered Article 8 in 1984 and reached agreement on important principles, a number of problems arose over the interpretations and application of certain provisions of Article 8. Early 1992 marked the last in a series of national level arbitrations pertaining to these disputes over agreements reached in 1984. Transitional Employees Just as the parties were finally adjudicating the provisions of Article 8, the Transitional Employee classification was imposed by the arbitration panel in interest arbitration, for the 1991-1994 National Agreement. The panel ruled that there would be a new classification of postal employee, the Transitional Employee. But, the panel did not say what this Transitional Employee classification would entail. Only if the parties failed to hammer out exactly what a transitional employee was, would the panel rule on what he believed they should be. The parties met at the national level, and negotiated the Transitional Employee Memorandum of Understanding, or what later became known as TE-1. In my opinion, the parties took the existing provisions relating the part-time flexible classification, casual employee classification and the results of national level arbitrations and mixed them together to create the provisions of TE-1. TE-1 underwent many revisions and currently we are into TE-3, the language regarding overtime assignments to transitional employees has remained constant throughout all the revisions to the memorandum. Overtime Limitations & Rates The key overtime pay provisions of the National Agreement are found in Article 8, Sections 4 and 5 (1991-1994 National Agreement).
Overtime Work -- Transitional Employees Transitional Employees shall be paid overtime for work performed in excess of forty work hours in any one service week. Overtime pay for transitional employees is to be paid at the rate of one and one-half times the basic hourly rate. When an opportunity exists for overtime for qualified and available full-time employees, doing similar work in the work location where the employees regularly work, prior to utilizing a transitional employee in excess of eight work hours in a service day, such qualified and available employees on the appropriate Overtime Desired List will be selected to perform such work in order of their seniority on a rotating basis. The parties agreed on 10/19/88, in a Memorandum of Understanding, that with the exception of the month of December, the Postal Service may not permit or require employees to work beyond twelve hours in a day or sixty hours in a week: and employees have no right to demand to work beyond those limitations. Overtime Desired Lists Article 8, section 5 provides for Overtime Desired Lists (ODLs) to be used for the selection of full time regular employees for overtime assignments. The primary purpose of the overtime desired lists is to protect those full time regular employees who do not wish to work overtime. The secondary purpose of the overtime desired list is to formulate a procedure to distribute overtime among those full time regular employees who wish to volunteer for overtime. An ODL contains names of full-time regular employees who wish to work overtime listed by seniority. The non-Desired portion lists the names of those full-time regular employees who do not wish to work overtime by juniority. The lists are established at the local level though local negotiations. Such negotiations determine whether the ODL will be by section or by tour. The circumstances of each individual office and the preferences of the local membership will determine which type of list is more suitable for that office. Locals may negotiate multiple overtime desired lists having separate lists for before tour, after tour, and non-scheduled day overtime. Sectional ODLs can be divided by pay area, by tour, and incoming and outgoing section. Employees on "Sectional" ODLs may not be used in other sections to avoid the payment of penalty overtime. It must also be noted that there is not automatic right to overtime even though an individual is on an ODL> Employees on the ODL who are selected to work overtime must be qualified to perform the work and available to perform the work. To be qualified an employee must have the "necessary skills" to perform the overtime. Qualified and available employees on the applicable ODL must "be selected in the order of seniority on a rotating basis." Article 8.5.1b prevents overtime assignments to employees who are absent or on leave. An employee who is absent or on leave is considered unavailable. An employee is also considered unavailable after that employee has reached twelve hours in a service day or sixty hours in a service week. When an ODL does not provide sufficient qualified people to meet needed overtime, management may assign overtime to qualified full-time regular employees not on the list. The following example is given in the 1984 Memorandum of Understanding: "if there are five available employees on the overtime desired list and five not on it, and if 10 work-hours are needed to get the mail out within the next hour, all ten employees may be required to work overtime. But, if there are 2 hours to get the mail out, then only the five on the overtime desired list may be required to work." When overtime work is required of employees not on the ODL, management is required to assign the work first to more junior employees on a rotating basis. Employees with greater seniority, who are not on the ODL are to be the last employee required to work overtime. Signing Up on the ODL The National Agreement requires that full-time regular employees desiring to work overtime during the quarter should place their name on the overtime desired list two weeks prior to the start of the each calendar quarter. Two National Level settlements have dealt with what happens to an employee once on the list. These settlements have addressed the right of an employee to withdraw their name from a list, and the right to add their name to an ODL only once during the quarter, not both. Also, management does not have to honor an employee's request to remove their name from the ODL, if that employee is needed for overtime work on the day of the request or if overtime has been pre-scheduled for the near future. Another National Level settlement reaffirmed an employee's right to carry their name forward when that employee successfully bids to another position. Desirees Passed-over In 1975 the APWU and the USPS settled a National Level Grievance which has become the cornerstone case outlining the remedy to overtime pass-over violations. This case involved an interpretations of the 1973 National Agreement determining what happens when an employee on the ODL is improperly passed over by management in selection of overtime and who has the necessary skills and is available, and another employee on the list is selected for the overtime work out of rotation. The parties agreed that the following would apply: "An employee who is passed over shall, within ninety (90) days of the date the error is discovered, be given a similar make-up overtime opportunity for which he has the necessary skills. Should no similar make-up opportunity present itself within ninety (90) days subsequent to the discovery of the missed opportunity, the employee who was passed over shall be compensated at the overtime rate for a period equal to the opportunity missed." This agreement also provides that if an employee on the overtime desired list is passed over for an employee who is not on the list, the employee passed over shall be paid for an equal number of hours at the overtime rate for the missed opportunity. These same principles apply in cases involving penalty overtime pay, except that management may spread overtime work among employees on the ODL., by seniority to avoid paying penalty overtime rates. Non-Desirees Forced to Work This settlement laid the foundation for remedies to all future overtime pass-over violations, by addressing what was due to the overtime desired employee improperly passed over. However, this settlement failed to address what was due to the employee who was not on the list and forced to work overtime instead of the Desiree. It always frosted me that an employee who wanted the overtime would be paid for not working, while the poor wretch who wanted to go home to begin with, received nothing for being improperly forced to work in their place. I finally came across a regional arbitrations award (C7C-4K-C33984 and 33986, Arbitrator John Fletcher, Des Moines IA) which states "... the grievants listed in these cases are entitled to be paid the penalty overtime rate for the hours they were required to work overtime when ODL employees were available and not contacted. Grievants are to be awarded the difference between the regular overtime rate received and the penalty overtime rate. Thank you Carl Casillas, National Business Agent, who advocated the case, and event greater thanks to the local officers who put it togeather at the lower steps! Using arguments presented in this Regional Award, I was able to present similar issues at the Local Level in our Region. To my knowledge we have two sustained grievances at Step 2 where the non-desired employees were paid an additional 25% for being improperly assigned to mandatory overtime, when desired employees were qualified and available. PTF's & Casual Before Desirees Two National Level Awards (M8-W-0027, and H1C-4K-C-273444) have dealt with using PTF, and Casual Employees for overtime instead of scheduling full-time regular who are on the overtime desired list. The Mail Handlers Union brought a National level case involving the use of PTFs for overtime assignments, prior to assigning FTR overtime desired employees to the work. The Arbitrator (Richard Mittenthal) found that Article 8.5 requires that overtime be offered to full time regulars before it can be offered to part time flexible employees. He stated: "... given this history, it is obvious that the real purpose of this contract clause was to restrict mandatory overtime for full-time regulars. Article 8, Section 5 has nothing to do with any order of preference between full time regulars and part time flexibles. There is not a shred of evidence that the subject was ever raised during the 1973 negotiations which lead to the current contract language. The union's attempt here to enlarge full-time regulars opportunity for overtime is the exact opposite of the 1973 negotiator's intent to reduce their exposure to overtime." A few years later Arbitrator Zumas carried the above ruling a step further. He found that the USPS did not violate Articles 7 or 8 in using casual employees on overtime instead of scheduling full time regulars who were on the overtime desired list. He found that "casual employees are non-career employees who, as a part of the supplemental work force, perform duties assigned to bargaining unit positions on a limited basis. They are not restricted to working straight time, and may perform overtime." He found there is no restriction as to how these casual employees may be utilized, except that part-time flexibles should be utilized at the straight time rate prior to the casuals. The arbitrator concluded by rejecting the union's contention that overtime is a benefit that casuals are not entitled to. Credits
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