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Déjà Vu: EAS Pay Talks, Again?

Déjà Vu: EAS Pay Talks, Again?
By Brian J. Wagner
NAPS President

Déjà vu is a French phrase that translates as “already seen.” It is the feeling that one has lived through the present situation before. It feels as if NAPS just finished FY16-19 pay talks with the Postal Service and here we are again, getting ready for a new round of pay talks for FY20 and beyond. How is this possible? Here’s the scoop!

First, let’s review what happened with our previous FY16-19 pay-talks process. In September 2017, NAPS received the USPS’ initial FY16-19 EAS pay proposal. After many meetings and an agreed-on extension by both parties, NAPS received a final USPS EAS pay decision in July 2018.

As a result of that USPS decision and per the law, NAPS petitioned to seek fact-finding through the Federal Mediation and Conciliation Service (FMCS).

The FMCS convened a three-member panel in December 2018 to hear NAPS’ case. In April 2019, the FMCS fact-finding panel issued its report, which favored NAPS’ concerns regarding the USPS pay package. However, the Postal Service’s subsequent final FY16-19 pay package, issued in May 2019, remained largely the same as the agency first proposed two years earlier and failed to conform to Title 39.

Therefore, in July 2019, NAPS filed a complaint in the U.S. District Court for the District of Columbia seeking declaratory and injunctive relief against the U.S. Postal Service for its failure to pay its supervisors, managers and other professional and administrative employees in accordance with federal law. Legal proceedings move slowly and the COVID-19 pandemic further slowed the pace of our lawsuit.

A year after the lawsuit was filed, the district court, without addressing the merits of our case, dismissed the lawsuit on procedural grounds. In response, the NAPS Executive Board authorized an appeal of the district court’s decision to the U.S. Circuit Court of Appeals for the District of Columbia. NAPS filed the appeal in September 2020.

In February 2021, NAPS filed its first legal brief in the appeal. Under the court’s briefing schedule, the Postal Service will file its reply brief in mid-April, with a NAPS response brief due in mid-May. Oral argument by a three-judge panel of the appeals court likely will be in the fall.

It must be noted that NAPS’ pending legal appeal has nothing to do with the upcoming USPS/NAPS EAS pay consultation process for FY20 and beyond. Basically, NAPS is starting an entirely new EAS pay process—déjà vu!

Technically, NAPS and its members have consistently been living through EAS pay consultations since passage of the 1970 Postal Reorganization Act, referred to by NAPS as Title 39. As I have explained in previous columns, when it comes time for EAS pay talks with the Postal Service, it’s consultation—not negotiation. There is a difference.

It also is important to note that USPS EAS pay talks constitute a process governed by federal law and established under Title 39 U.S.C., sections 1003 and 1004. To summarize, sections 1003 and 1004 require the USPS to present NAPS with an EAS pay proposal that: 1) assures pay is comparable to the private sector for similar levels of work; 2) provides a fair and equitable pay differential in comparison to craft employees; and 3) assures that pay will attract and retain qualified and capable supervisory and other EAS—Executive and Administrative Schedule—managerial personnel.

The timing for pay talks between the Postal Service and NAPS also is governed by Title 39. Basically, once the largest postal union ratifies its final collective bargaining agreement with the USPS, the Postal Service shall, within 45 days, make a proposal for any changes in pay policies and schedules and fringe benefit programs for members of the supervisors’ organization (NAPS) that are to be in effect during the same period as covered by the collective bargaining agreement.

On March 8, the National Association of Letter Carriers, the largest postal union, ratified its new bargaining unit agreement with the USPS. Therefore, on that date, per Title 39, the 45-day clock started for the Postal Service to provide NAPS with a new EAS pay proposal. As I write this column in late March, we have not yet received the pay proposal.

Once NAPS receives the USPS EAS pay proposal, NAPS officials will consult with USPS officials to address questions and concerns, as well as NAPS’ own proposals. This may require many meetings, similar to what occurred during FY16-19 pay consultations—déjà vu!

Again, these meetings are consultations—not negotiations. In the end, the Postal Service will, under the law, provide NAPS with a final EAS pay package after giving our recommendations “full and fair consideration.” The EAS pay package must be issued within 90 days, unless the deadline is mutually extended by the parties.

As in the past, if NAPS is satisfied with the USPS’ final EAS pay package, the Postal Service will proceed to implement it. If NAPS is not in agreement, we will have the option, just as in 2018, to challenge the USPS pay package and seek fact-finding by an FMCS-established panel—déjà vu!

Regardless, the USPS can implement its final pay proposal even if NAPS elects to seek fact-finding. Per Title 39, the USPS is not obligated by law to accept any recommendations from NAPS or a fact-finding panel.

Again, please note that NAPS’ pending lawsuit against the Postal Service is retrospective, covering the FY16-19 pay years. Therefore, as NAPS prepares for a new round of EAS pay talks, our focus will be on achieving a fair and equitable EAS pay decision that does not have the déjà vu results of FY16-19, but one that is reasonable and acceptable to our membership.

Finally, there is no déjà vu with my May ice-cream-flavor-of-the-month recommendation: crème brûlée.