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A Tale of Two Representations
By Ivan D. Butts
NAPS National President
Hello, my NAPS brothers and sisters. I hope you all have a wonderful, blessed Christmas and New Year with your family. As I write this column, it’s a couple weeks before Christmas, but I am excited about yet another opportunity to bring well wishes to you and yours this New Year.
There is a famous opening line from Charles Dickens’ “A Tale of Two Cities—“It was the best of times, it was the worst of times. ...” This phrase highlights a significant conflict between family and love, hatred and oppression, good and evil, light and darkness and wisdom and folly.
I don’t know to what degree the issue of representation resonates, but it’s a must-have conversation. And not just for me at this moment, but for every NAPS member in order to address a false narrative being spoken across the country and leading EAS employees to make decisions that not only could have financial consequences, but potentially career-ending consequences, as well.
I am speaking about these two tracks of “representation” for EAS employees. One is “representation in pay and fringe benefits,” the other is “representation in disciplinary and adverse actions.” I want to focus on the latter.
The U.S. Supreme Court upheld the right of assistance from union representatives during investigatory interviews in 1975 in NLRB v. J. Weingarten Inc., 420 US 251. The Weingarten rule affords an employee the right to representation during any investigatory interview they reasonably believe may lead to discipline. It is important to stress that employees must request union representation because management (or postal inspectors or OIG agents) are not required to notify them of their right to representation.
This right also is affirmed in the USPS ELM 651.2:
“Subject to prohibitions regarding Executive and Administrative Schedule (EAS)/Craft representation, employees have free choice of representation. Representatives designated by employees, if postal employees and if otherwise in a duty status, are granted a reasonable amount of official time to respond to notices of proposed disciplinary action, to prepare for and represent the employee at a hearing held in accordance with 652.24, and/or to represent an employee who has appealed a letter of warning or emergency placement in a nonduty status in accordance with 652.4. Employees covered under these provisions may request representation during investigative questioning if the employee has a reasonable belief that disciplinary action may ensue.”
This federal law and postal policy establishes one truth in “Disciplinary and Adverse Actions” [emphasis added]: Every employee has a right to representation. Discipline is defined as Letters of Warning and Letters of Warning in Lieu of Time-Off Suspensions. Adverse actions are defined as discharges, suspensions of more than 14 days, furloughs for 30 days or less and/or reductions in grade or pay.
So, why NAPS? I will go on the presumption that, in disciplinary cases, UPMA represents EAS employees as NAPS does—at no cost to members (or at least I hope so). However, when we look at UPMA’s Adverse Action Legal Defense Plan (AALDP), we see a stark difference. Let’s look at UPMA’s AALDP:
EAS with MSPB Appeal Rights:
Adverse Action (removals/demotions/suspensions)—$3,000 up front. The claimant will be responsible for 25% of the total cost with a $3,000 maximum cap. UPMA will pay 100% of the additional costs beyond $3,000 through the end of the MSPB initial decision. Claimant will be responsible for the full cost of appealing beyond MSPB initial decision.
EAS without MSPB Appeal Rights (administrative appeal under ELM 652.2):
Removals/Demotions/Suspensions—$3,000 up front. The claimant will be responsible for 25% of the total cost with a $3,000 maximum cap. UPMA will pay 100% of the additional costs beyond $3,000.
Eligibility—To be eligible for AALDF benefits, you must be an active EAS member of UPMA for at least one year prior to the date of an initial proposed adverse action [emphasis added]. Membership effective date is determined by the date the Form 1187 is processed at the UPMA National Office. If attorney fees are awarded by a percentage (i.e. 50%), the same percentage will be used when refunding the member's used portion of their retainer.
Before we look at the NAPS Disciplinary Defense Fund (DDF), I need to emphasize a few points. We hear UPMA is enticing EAS supervisors and managers to join the organization and receive free membership for one year.
Your “free membership” gets you zero representation from any adverse action initiated against you by the USPS—zero, nada, zilch. This “free membership” exposes you and your USPS career to the risk of termination without support.
The second point is it is not assured that you will be represented by UPMA even if you are beyond your year of “free membership.” You will need to survive the UPMA approval process to receive representation. UPMA rules state:
“For any decision regarding either the AALDP or Legal Defense attorney representation that may fall outside the scope of these procedures and guidelines or for further interpretation of these guidelines, the UPMA National Executive Board will conduct a review and determine the appropriate UPMA action; 80% approval of the UPMA National Executive Board is required before AALDP may be used.
“In the event that the AALDP Attorney advises the UPMA National Executive Board that a case is not justifiable to pursue, the UPMA National Executive Board (with 80% approval) reserves the right to cease the use of AALDP.”
Now, let’s look at the NAPS DDF per the NAPS Constitution & Bylaws, Article IX, Section 2:
“The DDF only is to be used for active and associate members, including individuals who were members in good standing at the time of retirement. To be eligible for representation through the DDF, an active member must meet the following criteria:
“(a) the active member must have signed an application for NAPS membership sixty (60) days [emphasis added] from the effective date of promotion from the craft, or
“(b) the active member must have been a NAPS member no fewer than ninety (90) days prior to the charge being issued, and
“(c) any additional criteria outlined in the ‘Disciplinary Defense Fund: Procedures and Guidelines for Branch Presidents’ in the NAPS Officer Training Manual.”
In full transparency, NAPS has a provision that states, “NAPS is not obliged to defend each and every member, regardless of the charges they may face. The integrity of NAPS, both national and local, and the interests of the Postal Service must be considered when receiving a request for DDF advocacy. This provision is needed if an EAS employee’s allegations are so severe and heinous that representation cannot be accomplished.” In my 33 years of NAPS advocacy, I’ve never seen this provision used. NAPS fights for its members.
The cost of the NAPS DDF to members is zero! Additionally, NAPS has a provision to provide additional financial resources in DDF cases to cover evidentiary expenses, if needed.
As members receiving and reading this column, I need a favor from you: Talk to your friends and coworkers who may have fallen for the false narrative being touted by some UPMA members and leaders that is leading them astray.
Ask them, “In these tough financial times we are facing, why would you jeopardize your career and family for 12 months of ‘free membership’ that gives you no security?”
Next month, we will look at representation in pay and benefits and see who has the legal right to represent all EAS employees.