NALC Delivers Halt To Excessing of Certain Clerks

Omar Gonzalez, APWU Western Regional Coordinator

The Letter Carriers’ Union prevailed in arbitration securing an award by Arbitrator Nolan prohibiting the Postal Service from reassigning any clerk craft employee who does not meet the definition of full-time employee under the NALC contract into a full-time carrier craft position.

The case which involved the NALC, Mailhandlers and APWU took 2 years to reach disposition. The appeal evolved from the reassignment of a clerk who had a non-traditional assignment (NTFT) into the carrier craft as a Full-time carrier. The NALC grieved claiming the former clerk should have been reassigned as a PTF carrier. NALC challenged management’s right to transfer (reassign) a clerk who does not meet the NALC definition of Full-time employee into a full-time carrier position under their CBA Article 7 and that USPS/APWU CBA cannot violate the USPS/NALC CBA. The APWU argued that their contract clearly defined NTFT employees as full-time even if they hold 30-hour per week jobs. The Mailhandlers argued basically in support of NALC. Management sided with the APWU and added their points about “NTFT employees”.WHO IS RIGHT?
Arbitrator Nolan said both APWU and NALC were correct but since USPS negotiated with different unions and reached different terms man-agement cannot reasonably promise contradictory things to different unions. If management negotiates conflicting agreements, it is stuck with the result….” in short, when dealing with cross-craft assignments, the gaining bargaining unit’s contract must apply.

Management complained that if NALC wins it would paint them into a corner and limit their ability to engage in cross-craft excessing. The arbitrator didn’t buy it. “If complying with the agreement [management] negotiated with the NALC creates a problem with the APWU, that is a problem for those two parties to resolve,” said Arbitrator Nolan.

NOW WHAT?
The impact on the clerk craft, which management often claims is over-staffed, remains to be seen. The APWU’s Industrial Relations Depart-ment interprets the CBA and will eventually, it is presumed, issue a position on the matter. Regional Coordinator Omar Gonzalez, however, stated that the award will certainly affect the Article 12 involuntary reassignment process. “How exactly that plays out remains to be seen. Unfortunately, it appears too many postal parties continue to believe NTFTs are employees. NTFTs are assignments!,” Gonzalez said.

Full arbitration award (PDF) NolanAward_USPS-NALCNTFTExcessingAward

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Here is the position of  NALC printed in the Postal Record 2012-NTFT clerks excessed into letter carrier craft

In the 2011-2015 American Postal Workers Union National Agreement, the APWU and the USPS agreed to create clerk jobs called non-traditional full-time (NTFT) positions. Many of these clerks work regular schedules of fewer than 40 hours per week. The following issue has recently come up: Does management have the contractual right to excess NTFT clerks who work fewer than 40 hours per week into full-time letter carrier positions?

NALC’s position is a resounding no!

The APWU agreement defines these employees as full-time and the NALC agreement defines them as part-time regulars. So which agreement must the USPS comply with? The answer is both.

National Arbitrator Snow ruled on a similar issue in a 1998 national arbitration award (C-18159, 194N-4I-D 96027608). The issue in that case dealt with the question of whether management had to make cross-craft assignments under Article 29 of the NALC agreement when a letter carrier loses driving privileges, while the APWU agreement prohibited such assignments. National Arbitrator Snow ruled that the Postal Service is obligated to comply with both agreements made with unions.

The APWU agreement may define these employees as full-time, but we believe the provisions of Articles 7 and 8 of the NALC contract quoted above clearly define them as part-time regulars. They must be considered to be in the category of part-time regular when it comes to excessing these clerks into our craft. Therefore, in order to be excessed into full-time positions in the letter carrier craft, these employees must meet the definition of full-time in the NALC National Agreement.

NALC believes that a clerk who works fewer than 40 hours could be excessed only into another part time regular position, not into a full-time letter carrier position.

On February 16, 2014, Arbitrator Dennis R. Nolan agreed with NALC.

The following are excerpts from the arbitration decision:

The NALC filed this grievance as a class action on November 7, 2011 to contend that the Postal Service violated Articles 3 and 12 by improperly excessing a clerk craft employee into a full-time city letter carrier position. The parties could not resolve the dispute in the grievance procedure, so the Union demanded arbitration. The APWU and NPMHU intervened because of the potential impact on their represented employees.

It begins with a 2011 MOU between the APWU and the Postal Service that provided for the use of Non-Traditional Full-Time (NTFT) duty assignments. The MOU allowed the Postal Service to create NTFT assignments in the clerk and motor vehicle crafts consisting of 30-48 hours a week. The object of those assignments was to give the Postal Service more flexibility while providing more work opportunities for APWU employees, and thereby reduce the possibility of layoffs (termed “excessing” in this agency). In return, the Postal Service agreed to convert clerk craft part-time flexible (PTF) employees to full-time status. In the three-month period provided, about 9,000 employees were converted.

The APWU thought that the converted employees would all be placed in traditional 40-hour, 5-day schedules. Instead, the Postal Service classified them as unassigned regulars and gave them NTFT schedules of less than 40 hours. The APWU naturally grieved. On July 29, 2012, Arbitrator Shyam Das denied the grievance, finding that “in the unique circumstances” of the case, management’s action did not violate the agreement.

That left many of the 9,000 converted part-time APWU employees working NTFT schedules for fewer than 40 hours a week. That alone would not have affected the NALC. What happened next did. The Postal Service excessed many of those employees — an NALC witness testified without contradiction that the number was about 700-750 — into the carrier craft. At that point, of course, NALC employees were affected. As a result, the NALC filed about 70 grievances, including this one.

The Mail Handlers agree with the NALC’s main point that the Postal Service may not transfer an NTFT clerk craft employee working less than 40 hours a week to a full-time carrier craft position.

The Postal Service’s argument partially tracks that of the APWU but adds some additional points.

As to that fundamental question, there is only one fair answer. The problem arises only because the Postal Service negotiates with different unions whose individual agreements contain different provisions and different definitions. So long as the negotiated terms in a particular contract affect only the employees in that bargaining unit, the parties can make whatever bargains they wish. Separate contracts may provide that the Postal Service will treat clerks in one fashion, carriers in another, and mail handlers in a third, even if the issues addressed are exactly the same in each case. But when provisions in one contract affect employees in a different bargaining unit, the representative of those employees has a legitimate objection.

In short, when dealing with cross-craft assignments, the gaining bargaining unit’s contract must apply.

The Postal Service’s other argument asserts that upholding the grievance would paint the Postal Service into a corner and limit its ability to engage in cross-craft excessing. The metaphor is inaccurate. The NALC did not paint the Postal Service into a corner, much less the arbitrator. If there was any corner-painting, it was by the Postal Service itself. Had it not negotiated the NTFT MOU with the APWU, or if it had not tried to apply it in this fashion, there would have been no grievance. If complying with the agreement it negotiated with the NALC creates a problem in its relations with the APWU, that is a problem for those two parties to resolve.

For the reasons stated, I sustain the grievance and find that the Postal Service may not reassign into a full-time carrier craft position any clerk craft employee who does not meet the definition of full-time employee specified in the Postal Service’s Agreement with the NALC. The reassignment of Anthony Leonetti must therefore be vacated.

The Postal Service’s breach of the Agreement may or may not have harmed any identifiable carriers. The record does not contain evidence on that question, so I will remand that issue to the parties. If any identifiable carriers did suffer losses, the Postal Service must make them whole.