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(This article was first published in the Sept/Oct 2006 issue of The American Postal Worker magazine.)

‘Protected Rate’ Wage-Increase Dispute Settled

Greg Bell, Director
Industrial Relations

The APWU and the USPS recently settled a dispute over the Postal Service’s unilateral change to the way it calculates general pay increases for employees in a “protected rate” status.

An employee involuntarily assigned to a lower-level position is, under certain circumstances, eligible for protected-rate status, which means the employee continues to be paid the wage he or she received in the former higher-level position. Prior to the Postal Service’s implementation of the change, general wage increases for employees in a protected rate status would be calculated on the basis of the salary of their former higher-level position.

The imposed unilateral change calculated the general wage increase on the basis of the salary of the lower-level position. The union became aware of the change in 2005, after we received a copy of an internal USPS memo that indicated that the change had taken place in November 2002.

We immediately filed an unfair labor practice charge with the National Labor Relations Board (NLRB), arguing that such a unilateral change violated the terms of the collective bargaining agreement.

We were successful in persuading the Labor Board to issue a complaint against the Postal Service, and the case was scheduled to be heard on July 10. Several days before the hearing, however, the Postal Service conceded that it was wrong, and that the action taken was not authorized. The APWU therefore agreed to settle the complaint, with the concurrence of the NLRB.

Significance of the Settlement

First, it should be noted that under the Bush administration’s NLRB, unions have rarely been successful in getting the board to issue complaints against employers. In most cases, the NLRB will defer a union-filed charge to the parties’ contractual grievance procedure for resolution.

The NLRB settlement is significant for several reasons. The “cease and desist” language is much broader than that typically found in a settlement. The Postal Service has promised the board that it will not “in any other manner” violate the National Labor Relations Act. In addition, the settlement does not contain a standard “non-admissions” clause, which employers typically use to deny wrongdoing.

The settlement also contains “default language” providing that if the Postal Service fails to comply with the affirmative terms of the settlement (the “we will” provisions), the allegations in the complaints will be deemed “admitted,” and the General Counsel’s office may move for summary judgment on the complaint and obtain a board and court order.

In addition, the Postal Service must restore the status quo with respect to the manner in which general pay increases are applied to the wages of employees in special pay categories, and in the future “will take no action inconsistent with the collective bargaining agreement.” The settlement provides that after restoring the status quo, the Postal Service “will continue applying this method unless we obtain the Union’s consent to a contract modification.”

Finally, back pay is to be paid to all affected employees: They will receive what they would have been entitled to had the general wage increases been properly applied (to the salary in the higher-level position).Affected employees will be notified by the Postal Service.

Conduct on Postal Property

On May 24, Arbitrator Linda Byars ruled in favor of the union in a national-level dispute concerning proposed revisions to the Code of Federal Regulations regarding conduct on Postal Service property (Title 39,CFR 232.1).

The disputed revisions provided that “when conduct that is a violation of Federal or state criminal law is committed on Postal Service property, it is also a violation of Postal Service regulations, and that fine and/or imprisonment penalties of 39CFR 232.1(p) may be imposed for such conduct when Federal and state prosecution of the criminal law violation are declined.” It was the APWU’s position that double-jeopardy issues would be created by these revisions, and that such revisions are contrary to the just-cause provisions of the Discipline Procedure (Article 16) of the National Agreement.

Prior to the March 10, 2006, arbitration hearing, the Postal Service notified the APWU that the contested pro-posed change, which was posted in the Federal Register, was never made, and therefore the grievance “lacks merit and is moot.” The APWU responded that the union had no record of receiving notification from the Postal Service that the proposed revisions had been withdrawn, and requested that such notification be provided. However, the Postal Service refused to offer a withdrawal notice.

At the arbitration hearing, both parties acknowledged that the proposed revision was never implemented. But the Postal Service held the position that although the proposed regulation was never implemented, it had the right to decide to implement the regulation in the future. Because of this assertion, it was acknowledged that the union’s appeal was not moot. The question then became how to preserve the union’s appeal rights should the Postal Service decide to implement this change in the future.

Management took the position that in order to protect the APWU’s appeal rights, the arbitrator must rule on the merits. The union position, on the other hand, was that the Postal Service’s withdrawal of the proposed regulation would protect the APWU’s right to challenge a possible future revision without requiring an arbitration decision on the merits of a revision that might never be made.

Arbitrator Byars ruled that in order to make the union’s appeal to arbitration moot, the Postal Service must with-draw the proposed revision as well as the notice to the APWU of the proposed revision. She rejected the Postal Service’s argument that the grievance was moot since a final rule containing the proposed revisions to the federal regulations on conduct on Postal Service property had not been issued. (Case#Q90C-4Q-C 95053266)

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