NLRB Ruling is One More Step in AMS Struggle
Greg Bell, Director
(This article appeared in the Nov/Dec 2006 issue of The American Postal Worker magazine.)
A recent decision by the National Labor Relations Board overturning the dismissal of a Postal Service “unit clarification” petition is the latest chapter in a long-running dispute over management’s exclusion of the Address Management System (AMS) Specialist position from the APWU bargaining unit.
A unit clarification (UC) petition is a formal request to the board to determine whether particular positions are part of a bargaining unit. The dispute over the AMS Specialist position began in 1997 when the APWU filed our own unit clarification petition with the board to have the disputed AMS position, as well as five other EAS (Executive and Administrative Schedule) positions, included in the APWU Clerk Craft.
In December 1999,a settlement was reached in which the parties agreed to “fully and completely resolve any and all issues, and all currently pending grievances” regarding the APWU’s unit clarification petition. The union agreed to withdraw its petition, and it was specifically agreed to arbitrate the dispute over whether the EAS positions, including the AMS Specialist position, properly belonged in the Clerk Craft.
The agreement also stated that “the parties shall apply the national-level arbitration awards which are issued as a result of this settlement agreement as broadly as possible in an effort to resolve other pending EAS grievances raising the same or similar issues or arguments.”
However, after Arbitrator Carlton Snow sustained the APWU’s grievance over the AMS Specialist position in 2003,finding that both the position and work belonged to the Clerk Craft, the Postal Service refused to comply, and the APWU filed a lawsuit to compel compliance. The Postal Service countered by filing its own unit clarification petition with the board.
The NLRB’s regional director granted our motion to dismiss the UC petition, finding that the parties had agreed to arbitrate the issues and holding that processing the Postal Service’s petition would violate management’s commitment to resolve these issues through arbitration. Thereafter the Postal Service requested review of the regional decision, which was granted by the NLRB.
The Latest NLRB Ruling
In its most recent decision, the three-member panel’s Republican majority determined that the 1999 settlement agreement contained “no express agreement that the Employer would refrain from exercising its right to file a petition with the Board.” It also stated that the settlement agreement “did not contain a provision making the decision final and binding.”
In a strong dissent, NLRB member Wilma Liebman wrote that the “majority’s approach is untenable,” stressing that the “obvious intent of the parties was to make the arbitration proceeding final and binding, which implicitly precludes the filing of a petition with the Board.”
In reaching this opinion, Liebman wrote, she was guided by the specific terms of the 1999 settlement, that it “represents an understanding between the parties to fully and completely resolve any and all issues, and all currently pending grievances regarding the [union’s] Unit Clarification petition.”
Moreover, she noted that “Insofar as the Postal Service’s current petition involves the same issues as the Union’s earlier petition, they too are necessarily covered by the arbitration agreement.” She further noted that the parties intended that “anticipated arbitration awards would establish controlling precedent.”
Board member Liebman also observed that the majority failed to “explain why the Union would agree to dismiss its own unit-clarification petition and arbitrate the issues raised – incurring expense and delay – only to permit the Employer to opt-out of an unfavorable arbitration award and return the matter to the Board.”[Emphasis in the original]
If the award was not intended to be final and binding, she continued, “the arbitral procedure would be illusory; and resort thereto, an exercise in futility.”
The Struggle Continues
Despite the unfavorable outcome at the NLRB, the APWU still has a pending case in the U.S. District Court for the District of Columbia seeking to enforce Arbitrator Snow’s finding that AMS Specialists are “part of the APWU bargaining unit” and that “it is a violation of Article 1.2 of the National Agreement to exclude the position and disputed work from the bargaining unit.”
In this case, the APWU also seeks an order from the court that would direct the Postal Service to arbitrate other grievances over EAS positions in accordance with the terms of the 1999 agreement.
Simply put, the APWU is arguing that the arbitrator’s decision gives the union both the AMS work and the AMS Specialist position, and the NLRB has no jurisdiction overwork assignment disputes, only over unit-placement disputes.
A decision is pending on APWU’s motion for summary judgment. It is notable that this court previously ruled in an interim decision that Arbitrator Snow’s award is final and binding, and denied a USPS motion to dismiss APWU’s complaints.
The court also denied the Postal Service’s petition to stay the lawsuit pending the NLRB’s decision on the unit clarification petition.