Court Limits Postal Workers Washup Class Action Lawsuit

Court Limits Postal Workers "Wash-Up" Class Action Lawsuit

APRIL 25, 2005

A federal judge has limited a class-action lawsuit against USPS regarding management's failure to not compensate

New York Metro employees for wash-up periods. Prior to the elimination of blanket fixed wash-up time, all employees were paid for wash-up. Employees were allowed to leave their work stations 12 or 15 minutes before their lunch periods began to wash up. The change in the wash-up rule meant that employees denied wash-up time had to work up to the beginning of their lunch period.. Although several arbitrations were decided in favor of the postal workers--no compensation was granted for the wash-up periods off-the-clock .

So, on July 9, 2001 the Postal Workers filed suit in Southern New York District court alleging USPS violated the Fair Labor Standard Act (FLSA) and the New York State Minimum Wage Act (NYSMWA) by its: 1) suspension of fixed 12-minute/ 15-minute twice-daily wash-up periods for employees in one district; and (2) relocation of clock-in and clock-out stations at a processing and distribution center . Over 3,000 employees submitted opt-in forms to join the suit.

Background

The nearly 10-year dispute started when New York postal officials dumped an old contract provision that allowed all APWU members blanket, fixed 12-minute or 15-minute twice-daily wash-up periods for employees in one district. Postal officials on April 9, 1996 replaced the provision with a policy allowing paid wash-ups only for employees doing dirty work or handling toxic chemicals.

Three members of the Postal Service's New York management concluded that the LMOU's blanket fixed wash-up was inconsistent with the "reasonableness" standard set by Article 8.9 of the National Agreement and should be contested. The Human Resources Director met with members of the Postal Service operations staff and identified those job functions that were more likely to be involved in dirty work and with what frequency. From those discussions, the HR Director developed lists of job functions, and divided them into the following three categories reflecting whether the nature of the job function would likely give rise to a need for wash-up:

"Job titles are listed under the headings "usually not," "sometimes" and "more likely." This guideline lists those jobs which Management has assessed to be those that are usually not involved in dirty work, sometimes involved in dirty work and more likely to be involved in dirty work. The amount of reasonable wash-up time granted per Article 8 Section 9 would be dependent on the work performed on any given day. Not all employees perform the same work every day, nor are they necessarily involved in "dirty work or work with toxic materials" on a daily basis. Indeed, it is feasible that a job classification under "more likely" might not, on any given day, necessitate the need for wash-up as contemplated under Article 8.9 of the National Agreement. This key is to use common sense and make a decision on a case by case basis."

These lists were ultimately distributed to Postal Service management to help managers assess when to grant wash-up requests

USPS explained that the policy was changed because the postal service's cleaning standards have risen since the provision was enacted. But local union officials insisted that the wash-up period was still necessary for all workers. The Union argued that Postal workers "handle mail packages that contain live animals and hypodermic needles" and "window clerks handle potentially dirty cash."

The Postal Service brought the wash-up issue to the LMOU bargaining table, seeking to negotiate the blanket, fixed wash-up provisions.

The parties were unable to reach agreement on the issue of wash-up time, and they declared an impasse on or about April 1, 1996. The impasse was appealed to local impasse arbitration pursuant to the National Agreement.

By letter dated April 9, 1996, the Postal Service informed the Union that effective May 4, 1996, and for the duration of the negotiation impasse period, it would no longer implement blanket fixed wash-up, and that "employees will be allowed reasonable wash-up time as provided for under Article 8 Section 9 of the National Agreement." On May 4, 1996, the Postal Service implemented the impasse period wash-up rules.

The Postal Service instructed its managers to follow Article 8.9 during the impasse period following May 4, 1996, stating that "the amount of wash-up time which is granted should relate to the work performed by the employee. Time could vary with each request due to the fact that the work performed by different individuals and even the work performed by the same individual could vary from day to day and time of day." The Postal Service also directed its managers that "this policy does not mean that there should be blanket denial of wash-up time. Rather, wash-up time should be granted consistent with the terms of Article 8 Section 9 of the National Agreement," and that wash-up time was to be used for washing up only; employees were not to be permitted to get coffee, change clothes or wait by the time-clock during the wash-up period.

According to the suit, "during the impasse period, the Postal Service refused all employee requests for wash-up time, including those made by employees engaged in dirty work."

The issue of eliminating blanket fixed wash-up went to arbitration as contemplated by the National Agreement: arbitration began on January 7, 1997, included 92 days of testimony, and was resolved on March 31, 2000, when Arbitrator George R. Shea ruled that the blanket fixed wash-up periods provided by the LMOU were consistent with Article 8.9 and should be reinstated. The Postal Service reinstated blanket fixed wash-up on June 2, 2000.

In April 14, 1999, the clock-in claims were heard at an arbitration hearing.

On July 14, 1999, Arbitrator Joseph S. Cannavo ruled that the Postal Service should "restore time clocks to their pre-May 4, 1996 location," but he denied the Union's request for an award of money damages, reasoning that such an award would be "punitive," since the employees "did not lose money." Arbitrator Cannavo also noted that only Tour One employees had grieved the rule, that the exact amount of time lost was difficult to calculate, and that, ultimately, "no exact remedy could be fashioned for each employee."

The Postal Service alleges improper solicitation of 3,000 postal workers to Class Action Suit

On April 22, 2002, attorneys for the postal workers attempted to submit approximately 3,000 opt-in forms which created another dispute between the parties.

The Postal Service argued that "a plaintiff cannot send a notice to other potential plaintiffs until he has made a factual showing to the court and has won the court's approval." But the court ruled "the FLSA, on its face, is silent on the issue of notice to potential class members. The court stated further that USPS did not cite any "authority for the proposition that if opt-in consents were improperly or illegally obtained, blanket cancellation of the consents is the appropriate remedy."

On March 10, 2005, the court ruled in favor of postal workers which allowed over 3000 "opt-ins" . However, for statute of limitations purposes, the court limited period in which compensatory claims for some of the postal workers to May 21, 2002-- when the first consents were filed and docketed with the court.--- and not dating back to 1996 or April 22, 2002.

source: El v. Potter, 2005 U.S. Dist. (S.D.N.Y., Mar. 10, 2005) and El v. Potter, 2005 U.S. Dist. (S.D.N.Y., Dec. 06, 2004)