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BACKGROUNDQ90C-6E-C 9446 00This case involves a grievance filed in Step 4 on May18,1994 under the 1990-1994 National Agreement between the APWU(Union)and the Postal Service .The parties agree that theissue in this case is whether Article 7 of the NationalAgreement prohibits the Postal Service from using "Belly Girls"or other similar-type temporary agency employees("temps")supplemental work force .In relevant part,Article 7 .1 of the 1990-1994National Agreement provides as follows :ARTICLE 7EMPLOYEE CLASSIFICATIONSSection l .Definition and UseA.Regular Work Force .The regular workfarce shall be comprised of two categoriesof employees which are as follows :1.Full-Time .Employees in this categoryshall be hired pursuant to suchprocedures as the Employer may establishand shall be assigned to regularschedules consisting of five (5) eight(8) hour days in a service week .2.Part-Time .Employees in this categoryshall be hired pursuant to suchprocedures as the Employer may establishand shall be assigned to regularschedules of less than forty (40) hoursin a service week, or shall be availableto work flexible hours as assigned bythe Employer during the course of aservice week .as a

2Q90C-6E-C 94 46800B.Supplemental Work Force .1.The supplemental work force shall beCasualcomprised of casual employees .employees are those who may be utilizedas a limited term supplemental workforce, but may not be employed in lieuof full or part-time employees .2 .During the course of a service week, theEmployer will make every effort toinsure that qualified and availablepart-time flexible employees areutilized at the straight-time rate priorto assigning such work to casuals .3 .The number of casuals who may beemployed in any period, ether thanDecember, shall not exceed 5% of thetotal number of employees covered bythis Agreement .4 .Casuals axe limited to two (2) ninety(90) day terms of casual employment in aIra addition to suchcalendar year .employment, casuals may be reesnployedduring the Christmas period far not morethan twenty-one (21) days .C.Transitional Work Force .1 .The transitional work force shall becomprised o noncareer, bargaining unitemployees utilized to fill vacatedassignments as follows :2 .Transitional employees shall be hiredpursuant to such procedures as theEmployer may establish .They will behired for a term not to exceed 360calendar days for teach appointment . . . .

3On March 10,Q90C-6E-C 94 468001994, APWU Executive Vice PresidentWilliam Burros sent the following letter to Postal ServiceManager Anthony Vegliante :By exchange of previous correspondencebetween the parties, I had assumed that theissue of using employees from temporaryagencies to perform bargaining unit work hadbeen resolved .Recently, Z received severalreports that the problem has not abated .The union interprets the contract asprohibiting the use of employees oftemporary agencies to perform bargainingunit work .The Supplemental Work Forceagreed to by the parties is limited toCasuals and Transitional employees .Thisinquiry is not intended to address thesubject of hiring temporary agency employeesas TEs or Casuals as other issues would beinvolved, including rate of pay and hiringprocedures etc .This is to request the employer'sinterpretation as to the use of "KellyGirls" or other employees of temporaryagencies to perform bargaining unit work .On May 12,1994, Manager William Downer responded toBurros as follows :Pursuant to the enclosed June 28, 1989, step4 settlement, temporary employees (i .e .,Kelly Girls) may be used to perform shortterm work and shall be considered as casualemployees pursuant to Article 7 .2 .B of theNational Agreement .

4The referenced June 28,Q90C-6E-C 94 468001989 grievance settlement(Case No .H7C-NA-C 35), executed by Burrus and Postal Service representativeSamuel Pulcrana, states as follows :The issue in this grievance is whether theuse of "Kelly Girls" to perform the shortterm work during the acceptance test periodof the Multi-Line Optical Character Reader(MLOCR) retry fit at the Suburban Marylandfacility was a violation of the NationalAgreement .During our discussion, we mutually agreedthat the use of temporary employees (ie .,Kelly Girls) in the circumstances describedin this case shall be considered as casualspursuant to Article 7 .2 .B of the NationalAgreement .Accordingly, we agreed to settlethis case .On May 18,1994, Burrus initiated the presentgrievance in a letter to Dowses,in which he stated :The referenced 6-28-89 grievance wasintended to resolve a specific factsituation and was not intended to interpretArticle 7 .2 .B o the National Agreement .The settlement, by its specific teems, doesnot represent the position of the union onthe use of "Temporary Agency" employees toperform bargaining unit work .The union interprets the contract asprohibiting the use of employees oftemporary agencies to perform bargainingAll bargaining unit work mush beunit work .assigned to bargaining unit employees,

5Q90C-6E-C 94 46800excluding the exceptions recognized byArticle 1 .6 and Article 32 .The Postal Service denied the grievance in a letterdated January 24, 1995, which states :The issue in this grievance is whethermanagement is in violation of the NationalAgreement whenever "temporary agencyemployees" are used to perform bargainingunit work .The Union contends that the NationalAgreement prohibits the use of employees oftemporary agencies to perform bargainingunit work .It is the position of the Postal Servicethat the use of such employees is permittedunder the terms of Article 7 .Previousagreements between the Postal Service andthe APWU clearly indicate that the PostalService may use temporary employees toperform short-term work as long as suchemployees are considered as casual employeespursuant to Article 7 .1 .B .In addition, the APWU has previously statedits position in correspondence to SherryCagnoli, Assistant Postmaster General, fromWilliam Burrus, Executive Vice President,APWU, dated May 27, 1992 .That letterstated, in part :I have been made aware of a number ofoccasions when the Postal Service hasemployed non-career employees, including"Kelly Girls" and other temporaryservice employees .

6Q90C-6E-C 94 46800The Union interprets Article 7 of theNational Agreement as limiting the rightof the Postal Service to employ noncareer employees .All non-careeremployees (Transitional employeesexcepted) are governed by the terms ofthe supplemental work force, includingthe 5 total number that can beemployed .The postal service agrees with the Union'sposition, as clearly stated in that letter,that temporary agency employees may be usedon a short-term basis as long as theme areconsidered as part of the supplemental workforce .It is also the Postal Service's positionthat employees of temporary agencies may beutilized in accordance with the provisionsof Article 32, and in such cases, they arenot considered as casual employees pursuantto Article ? .1 .BThe May 27,Union notes,1992 letter from Burrus to Cagnoli,theis only partially quoted in the Postal Service'sStep 4 decision .That letter also included the followingparagraphsThis is to inquire as to the USPS'interpretation of the National Agreementregarding the right to employ a supplementalwork force .The union was recently notifiedof your intent to employ non-careeremployees to operate the test Delivery BarCode Sorters (DBCS) at selected sites .Iinquired of Mike Guzzo whether or not thePostal Service intended to include theemployees utilized within the 5%authorization far the supplemental work

7990C-6E-C 94 46800force .To date, I have not received aresponse .Cagnali's July 14, 1992 response to this letter stated :It is the position of the Postal Servicethat when such employees ire used to operateDelivery Bar Code Sorters daring testing,those employees are to be included in the 5percent contractual limit on thesupplemental work farce .Several other pieces of correspondence between theparties relating to the Postal Service's use of temps were putinto evidence in this case, including :"A May 21,1973 letter from Senior Assistant Postmaster GeneralDarnel Brown to APWU President Francis Filbey,which states ;This letter confirms the agreement betweenthe American Postal Workers Union and theU . S . Postal Service regarding staffing ofthe Central Mark-up System duringconversion .Management shall fallow theprovisions listed below regarding suchstaffing during the conversion phase of thesystem .l.Determine if qualified employees can bedetailed td the central mark-up functionconsistent with the terms and conditionsof the national Agreement .2.After such determination, managementshall utilize such qualified employeesand, if necessary, arrange for temporaryclerical support to supplement the

8Q90C-6E-C 94 46800regular work force during the conversionphase .Although such arrangements maybe made with organizations such as KellyGirls, Inc ., or other similarorganizations, the temporary employeesshall be considered as casuals inaccordance with Article VII of theNational Agreement and compensated atLevel 5, Step 1 except that payment fortheir services shall be made directly tothe organization supplying theemployees .3 ."Post and fill permanent mark-up systempositions as soon as possible afterminimum staffing requirements have beendetermined .A December 5,1990 agreement between Clerk Craft AssistantDirector Cliff Guffey and Postal Service representative JoyceOng remanding a grievance from Step 4 on the following basis :The issue in this grievance is whethermanagement violated the National Agreementwhen temporary employees were hired toperform data input in the AIS office .After reviewing this matter, we mutuallyagreed that no national interpretive issueDuringis fairly presented in this case .our discussion, we mutually agreed that thiscase will be remanded to the local level forapplication of the settlement in Case No .H7C-NA-C 35 which states, in part :During our discussion, we mutuallyagreed that the use of temporaryemployees (ie ., Kelly Girls) in thecircumstances described in this caseshall be considered as casuals pursuant

9Q90C-6E-C 94 46800to Article 7 .2 .B of the NationalAgreement .Accordingly, we agreed to remand this caseto the parties at Step 3 far furtherprocessing, including arbitration,ifnecessary . . . ."A November 12,1993 letter from APWU President Moe Biller toPostal Service Vice President Joseph Mahon,Jr ., which states :This is an inquiry and a statement ofposition by the American Postal WorkersUnion concerning the staffing of PostalService Business Centers . . . .These sitesaxe staffed by substantial numbers ofemployees employed by outside contractors,and by Postal Service employees assigned toEAS positions called "Customer ServiceRepresentative, Expedited ServiceSpecialist," or "Mailpiece Design Analyst ."Our inquiry is whether the employees ofoutside contractors assigned to these sitesare being counted as casual employees, forpurposes of Articles 1 and 7, as we believethey must be .If they are being counted ascasuals, please provide the Union withdocumentation or other evidence of that factwhich will permit the Union to ensurecontinuing compliance with that requirement .Our statement of position is that theemployees in the three EAS positions listedabove are performing duty assignments whichshould be assigned to the bargaining unit .Please state whether or not the PostalService will assign this work to bargainingunit employees .

10According to the Union,Q90C-6E-C 94 46800the situation described in this lettersubsequently became the subject of a separate grievance .UNION POSITIONThe Union initially states that it is not challengingin this case how the Postal Service hires casuals or comes toemploy any ether category of workers .Its basic position isthat temps are not casual. employees and that Article ? limitsthe composition of the supplemental work force to casuals .The Union asserts that the term "casual" as used inthe National Agreement means a postal employee who holds alimited-term postal appointment,is on pastel employment rolls,and is paid directly by the Postal Service .who is a"casual" is themeaning the parties always haveapplied to that term in Article 7 .Union states,This definition ofIt also is supported, theby Sections 419 and 432 of the ELM,"casual employees" as "'nonbargaining unit,with limited-term appointments" .which describenoncareer employeesNational Arbitration decisionsalso have recognized and used this definition,and haveestablished . that the term "employed" in Article 7 .1 .8 .1 means"hired" .The Union points out that the temps at issue in thiscase do not enjoy any of the qualities that undisputedly definea casual .They do not have appointments,they are paid by anemployment agency and not directly by the Postal Service,andthey do not show up anywhere on postal employment rolls .Ast

11Q90C-6E-C 94 46800testified to by Union witness Phil Tabbita, who has beentracking the employment of casuals since 1984, temps are notincluded in the casual count reports provided to the Union on aregular basis by the Postal Service .The Union contends that if temps are not casuals,which undisputedly they are not,then they cannot be part of asupplemental work force defined in Article 7 as being made up ofonly casual employees .The Union further argues that Article 7describes the only categories of workers who can work within theAP'WU bargaining unit -- the regular work force,work force and the transitional work force .the supplementalThere is no issuehere that temps fit into the regular or transitional work force,and the evidence demonstrates they do not fit into thesupplemental work force .Therefore,the Union insists, Article7 must be read to prohibit the Postal Service from using tempsto perform bargaining unit duties .The Union maintains that the Postal Service's argumentthat Article 7 .1 .B does not require that casuals be "hired" is anew argument .As such it should not be entertained by theArbitrator under National Arbitration precedent .In any event,the Postal Service has presented no evidence to contradict thedefinition of casuals established by the Union which includesthe fact that casuals are hired .from the ELM,decisions .This is clear,the Union says,the National Agreement and past arbitral

fx12Q90C-6E-C 94 46800The Union also points out that although the PostalService's Step 4 position makes brief mention of Article 32,theparties have not joined issue on the interpretation andapplication of Article 32 or .Article 1 to the temps described inthis case .The Union argues that prior remedial settlementsrelied on by the Postal Service did not change the limits ofArticle 7 .In the case of each of the three cited settlements -- Filbey/Brown(1990)(19?3) ; Burrus/Pulcrano(1989)and Guffey/Ong-- the parties explicitly described a type of work orproject and a particular location to which they worked out aremedy for the Postal Service's impermissible use of temps inthe supplemental work force .Bath the Burrus/Pulcrano andGuffey/Ong settlements resolved grievances over the use of tempswhich had already ended .stresses,By their very terms,the Unionnone of these settlements can be read to have modifiedArticle ?oThe Union insists that the Postal Service has providedno substantiation for its claim that these settlementsimplicitly changed the rule of Article ? to allow the PostalService to use temps so long as it treats them like casuals .Moreover,the Postal Service has not actually treated temps likecasuals .Despite the settlements that were reached,Service has never,the Postalas a matter of established practice,any temps as casuals .counted

313Q90C-6E-C 94 46800The Union also maintains that the Burrus/Cagnoli(1992)and Billar/Mahon(1973)correspondence cited by thePostal Service were limited to specific fact situations .the 1989 Burrus/Pulcrano grievance settlement,most proposed,Article 7,Likethese letters atas a resolution to an obvious violation ofa remedy whereby the temps would be counted ascasuals .The Union asserts that its willingness to negotiateremedies to violations of Article 7 in the past does notobligate the APWU to similar future agreements or demonstrate anagreement to allow the Postal Service unfettered opportunity touse temps within the supplemental work force .Permitting anexpansion of Article ? contrary to its express terms,argues,the Unionundermines the protections limiting the supplementalwork force that the APWL1 has negotiated over many years .Finally,the Union insists that it is not sufficientor permissible for the Arbitrator to rewrite the NationalAgreement to include temps in the definition of casuals or torequire that they be treated like casuals,allay the Union's concerns .or both,in order toNot only has the Postal Service notcomplied in even limited circumstances with treating temps ascasuals, but the overarching issue in this case is aboutnegotiated limits an who can perform bargaining unit work otherthan the career employees represented by the Union .

14Q90C-6E-C 94 46800EMPLOYER POSITIONThe Postal Service asserts that in addition to hiringemployees,it has used contract employees,including temps,first collective bargaining agreement .since before the parties'Temps have bean used as part of a supplemental work force toperform both bargaining unit and nonbargaininq unit workgenerally in situations when a specialized skill has been neededor if the Postal Service has difficulty recruiting appointees .Contract employees are obtained under the Procurement Manual,incontrast to those casual employees who axe hired as appointeesunder the provisions of the ELM cited by the Union .The Postal Service contends that there is no languagein Article 7,or elsewhere,in the National Agreement whichprohibits the use of temps as part of the supplemental workforce .It points out that while Article 7 .1 .A and ? .1 .Cspecifically define regular work force anti transitional workforce employees as persons who"shall be hired pursuant to sodaprocedures as the Employer may establish",there is no suchlanguage or requirement in Article 7 .1 .B relating to asupplemental . work force comprised of casual. employees .Article7 does not address haw such employees will be procured nor doesit even remotely imply that casual workers need be an postalrolls .The Postal Service argues that the glaring absence ofany requirement that cas

American Postal Workers Union, AFL-CIO 1300 L Street, NW, Washington, DC 20005 February 19, 2003 To: Local Presidents National Business Agents National Advocates Regional Coordinators Resident Officers From: Greg Bell, Directort?) Industrial Relations Re: Award on Use of "Kelly Girls" Enc