by Greg Bell APWU Industrial Relations Director

In the March/April 2006 issue of the American Postal Worker, I wrote about a 2003 court decision that overturned the federal government’s longstanding practice of charging employees “military leave” for non-workdays spent training in the armed forces. The Postal Service, however, had taken the position that the court decision does not apply to its workforce. We initiated a national-level dispute over the matter, which is now pending national-level arbitration.

Since that article appeared, there have been several new developments in the law, including a Merit Systems Protection Board ruling that indicates that postal employees are indeed eligible for back pay for non-workdays during a time when they are undergoing armed forces training.

USERRA

The Uniformed Service Employment and Reemployment Rights Act of 1994 (USERRA), prohibits discrimination against employees of federal agencies, including the Postal Service, who are in the armed forces. Among other things, the law specifically prohibits the denial of any employer benefit on the basis of an employee’s military service.

Title 5, Section 6323, of the U.S. Code grants federal employees who are in the National Guard or the armed forces reserves up to “15 days” of paid military leave.

Although the federal code does not apply to postal employees, USPS regulations provide the same entitlement of paid military leave.

In July 2003, on appeal from a decision of the Merit Systems Protection Board (MSPB), a federal appeals court overturned the government’s longstanding practice of charging paid military leave for non-workdays while performing military service.

‘Butterbaugh’ Rules

In Butterbaugh v. Department of Justice , the court clarified how paid military leave should be computed, ruling that the term “15 days” – as it appears in Title 5 of the U.S. Code – should be interpreted as 15 workdays, rather than 15 calendar days.

The court ruled that agencies should not have charged military leave for non-workdays; the agencies should have charged leave only for those days on which the employees would have been required to work.

Although the appeals court reversed the MSPB decision, it remanded the case to the MSPB for further proceedings. The MSPB then remanded the case to an Administrative Judge at the regional level of the MSPB to determine what corrective action should be taken.

The administrative judge, however, dismissed the case after the parties submitted a written settlement agreement resolving their claims. The APWU is not privy to the provisions of the settlement.

Backing Butterbaugh

A March 7 MSPB ruling made it clear that in accordance with the Butterbaugh decision, postal employees can pursue claims for back pay for improperly charged military leave. In Miller v. USPS , a postal employee asserted that the Postal Service improperly charged leave for his military absence, which caused an improper reduction in his annual leave.

The MSPB found that although postal employees are not covered under Title 5 of the U.S. Code, the Postal Service has a policy in effect under Section 517 of the Employee and Labor Relations Manual (ELM) that calls for charging employees military leave for non-workdays. This policy, however, the MSPB explained, does not invalidate the intent and effect of USERRA.

The MSPB stated that its role is “to enforce employee rights derived from agency rules, regulations, procedures, and negotiated collective bargaining agreements.” The board ruling says: “The fact that the appellant in this case is not covered by 5 U.S.C. §6323, but instead is covered by an agency rule, does not affect our authority to consider this case under USERRA.” This is the same argument that the APWU has made in the national-level dispute that is pending arbitration.

The Postal Service is the largest single employer of National Guard and reserve members outside of the Defense Department. According to some analysts, the decision could cost as much as $200 million, so the Postal Service may appeal the Miller ruling. The court it would appeal to, however, is the same court that issued the Butterbaugh decision, and it is unlikely that this court would overturn the landmark ruling.

Back Pay

One issue that was not addressed in Miller was how far back the back-pay awards should cover.

In October 2004, the Office of Personnel Management issued guidance on Butterbaugh , directing agencies to cut off claims that are more than six years old. In July 2005, however, the MSPB ruled that affected employees could file back-pay claims for military leave back to when USERRA became law, October 1994.

In the national-level dispute, the APWU contended that affected postal employees should be paid retroactively to Oct. 1, 1994 . But there have been other developments in the law that suggest that the MSPB will consider pre-USERRA violations as well.

As noted in this magazine a year ago, in November 2005 the federal government appealed a ruling of an administrative law judge who considered pre-USERRA violations in the context of a USERRA appeal (C ollins v. Dept. of Agriculture ), and requested review by the full MSPB. However, in November 2006, the MSPB denied review. In affirming the administrative judge’s initial decision, it ordered back pay for improperly charged military leave back to 1990 ( Collins v. Dept. of Agriculture ).

Similarly, in Garcia v. State Department , the MSPB held that in the context of a USERRA appeal, violations dating back as far as the 1980s can be considered. In this early 2006 ruling, the board reasoned that claims of improper charging of military leave were equally prohibited by the Veterans Reemployment Rights Act (VRRA), a pre-cursor to the USERRA.

The MSPB found that there are no statutory limitations periods on such claims – the only time-barred defense is that of “the equitable doctrine of laches,” an inexcusable delay by the plaintiff bringing suit and prejudice to the defendant resulting from that delay.

In light of these two recent MSPB rulings, it is the APWU’s position that affected employees are entitled to compensation for all lost time and benefits: The APWU believes that claims for back pay under USERRA should include pre-USERRA violations and therefore should extend retroactively beyond Oct. 1, 1994 .

Making MSPB Appeals

In sum, the March 2007 MSPB ruling established that postal employees are allowed to file claims for back pay for improperly charged military leave.

Affected members who wish to assert their individual rights to back pay do not need to await the outcome of the APWU’s national-level dispute. For information on how to file an appeal with the MSPB, visit www.mspb.gov . The appeal should claim back pay for the entire period during which the employee performed military service and was employed by the federal government and the Postal Service. Military service records and attendance and/or payroll records should be acquired from the Postal Service before an appeal is filed. You must demonstrate the losses that you may have suffered (e.g., reduction in annual leave or leave without pay due to the improper charging of military leave).

To obtain relief under USERRA, the appellant must show that as a result of an agency’s improper administrative practice, he or she was forced to use other kinds of leave in order to fulfill the military duty.

source: May/June 2007 issue of The American Postal Worker magazine

Related Link:

Postal Employee Challenges USPS Over Military Leave (March 11, 2007)