During Tuesday morning’s business session at the 2024 National Convention, delegates were given an update on the NAPS v. USPS lawsuit. NAPS Legal Counsel Bruce Moyer greeted members and provided a timeline of the case and the background of Attorney Andrew Freeman.
Freeman and his firm, Brown, Goldstein & Levy, were hired by former NAPS President Louis Atkins to assist NAPS in fact-finding for the USPS 2016-19 pay package. “Andy told us at that time—and I seconded his belief,” Moyer said, “that we were not in for a sprint, but a marathon. It now has become a super marathon!”
NAPS filed the lawsuit after the Postal Service rejected a 3-0 fact-find-ing determination and recommendation regarding the 2016-19 pay package by a Federal Mediation & Conciliation Service (FMCS) panel. “NAPS filed suit in the district court, then appealed the initial decision of the district court to the so-called second-highest court in the country—the District of Columbia Court of Appeals,” Moyer declared. “There, we won a resounding victory and the case was remanded to the district court, where it is today.
“We’ve asked Andy to provide a better understanding of the suit, where it stands, the gains we’ve made and what remains. He is a principal partner in the law firm of Brown, Goldstein & Levy in Baltimore and is regarded by his peers as a superb litigator, earning respect for the many verdicts, judgments and settlements he has obtained for his clients. He is supported by a terrific legal team that has helped to advance our cause through the federal courts.”
Freeman told delegates he has had the privilege of representing them in this “way-too-long of a marathon” over what should have been in the 2016-19 pay package. “I was hired in 2016,” he informed delegates. “The 2016-19 pay package was first presented by the Postal Service in July 2018. It was inadequate in a variety of ways, prompting NAPS to ask for fact-finding under the 1970 Postal Reorganization Act.
“That consisted of three independent fact-finders appointed through the FMCS. We had a hearing in December 2018. In April 2019, the panel unanimously ruled for NAPS on every single issue.”
Freeman described how the FMCS panel recommended a broad set of policy changes to correct the NPA, provide locality-based pay adjustments and increase pay nationwide. In May 2019, the Postal Service rejected the recommendations.
In July 2019, NAPS filed suit. UPMA then intervened in the case, disagreeing with NAPS and agreeing with the USPS that NAPS’ lawsuit should be dismissed.
“Meanwhile,” Freeman explained, “the 2016-19 pay package went into effect Jan. 6, 2019. What we primarily are fighting over is the pay you received from January 2019 through the first eight months of 2021, as well as the Postal Service’s refusal to recognize NAPS’ representation of postmasters and most Area and Headquarters EAS employees.”
In July 2020, the district court ruled NAPS did not have a right to enforce its rights in court. “The court’s rejection of our lawsuit turned out to be a blessing in disguise,” Freeman said. “We filed an appeal in 2020 and had to wait a year.
“There was lots of work to brief and argue the case. But, in February 2022, the DC Court of Appeals ruled for us on every issue and clarified a number of issues, including holding that NAPS does, as we asserted, represent postmasters.”
After the Court of Appeals ruled, the case was remanded to the trial court, yet the Postal Service still refused to provide any salary-related information. “The law requires the USPS to provide adequate information to NAPS with respect to pay,” he stressed. “Yet the USPS never had given NAPS basic information about what it pays EAS employees.
“We had to ask the trial court to order the Postal Service to provide that information. It took from fall 2022 to August 2023 to finally get the court to order the USPS to comply.
“In April 2024, the USPS grudgingly gave us basic information for what each member of the EAS, as well as members of the clerk and carrier ranks, were paid for the years the contested pay package was in effect—from January 2019 through August 2021. It was a lot of data, but that’s what computers are for.
“We hired an expert to analyze the Postal Service’s data. We will file a report at the end of this month on what she finds regarding the inadequacies you were paid.”*
Freeman pointed out the appeals court held that the law requires the Postal Service to provide “some differential” in rates of pay between “supervisory and other managerial personnel” and “employees in the clerk and carrier grades.” The appeals court also held that the Postal Service had found that a 5% differential was appropriate under the law.
“If the court finds there are lots of supervisors who make less than the carriers and clerks they supervise, it will raise questions about the sufficiency of the 5% supervisor differential,” he said. “Is 5% enough? Back in the ’70s, NAPS, in a similar lawsuit against the USPS, won a district ruling (later overturned) that the differential should be between 20% and 25%.
“In the private sector, 20-25% is pretty common. That’s not because those private organizations are overly generous. They pay that differential primarily to attract talented people to be supervisors and offset the impact of overtime and other pay measures earned by the rank and file.”
Freeman also pointed out that Title 39 requires the Postal Service to consider private-sector compensation. “The agency completely ignored that requirement. The appeals court said it could not ignore that requirement. But the USPS did not conduct a market survey; it only hired an expert after the fact, in preparation for the fact-finding. And he looked at just six categories among the thousands of job titles in the EAS ranks.”
Freeman told delegates the legal process will proceed through the rest of this year with depositions of NAPS and USPS experts, followed by dispositive motions in 2025. He said that, on the previous Saturday, when he addressed the NAPS Executive Board during its board meeting, Executive Vice President Chuck Mulidore remarked, “Good things come to those who wait.”
“Some good things have occurred,” Freeman observed. “The appellate court’s decision in February 2022 for one, in which NAPS won on each issue we presented to that court. The right NAPS has under the law gives us significant power.
“The court ruled that NAPS represents all EAS employees—including supervisors, postmasters and other managerial personnel—that’s the law. Although the Postal Service and UPMA argued against NAPS’ representational rights, the appeals court held that NAPS has the right to represent all EAS employees, including postmasters—there is no more uncertainty about that.”
“As for the remainder of the case,” Freeman added, “I can’t tell you what the judge will decide or when. But the law directs that there be some supervisory differential and that it be ‘adequate and reasonable.’
“We are optimistic that the trial courts will agree with us that the minimum salary for supervisors and managers needs to be substantially higher to comply with that requirement.”
* The expert’s report, filed with the district court on Aug. 30, demonstrates that tens of thousands of carriers and clerks made significantly more than their respective supervisors. Whether comparing base pay or base hourly rates (i.e., total dollars paid divided by total hours worked), many thousands of EAS supervisors and managers were not paid the required 5% differential above many thousands of the carriers or clerks they supervised.
The report is available at www.naps. org on the “Forms and Documents” page.
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