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No Fact-Finding Finale Yet
Brian J. Wagner
Let me first take a moment to wish you and yours a happy holiday season and all the best for a safe, healthy and prosperous New Year.
What is amazing is that, while we are in the 2018 holiday season with 2019 right around the corner, we remain engaged in discussions with the Postal Service over the pending FY16-19 EAS pay decision, with only one year remaining in the period covered by the pay package.
We hope to reach a resolution on completion of the fact-finding process NAPS initiated in June after our National Executive Board determined the initial USPS pay decision was unacceptable. Looking ahead, what do we expect to happen and how do the pay-consultation and fact-finding processes work? Here’s the scoop!
As I wrote in my November 2017 column, the law governing the pay-consultation and fact-finding processes is found in Title 39 of the United States Code. The law, which is based on a “meet-and-confer” model, requires the Postal Service and NAPS to strive to resolve differences that may arise over USPS proposals to change EAS pay and benefits.
After consulting with NAPS over potential changes, the Postal Service is required to inform NAPS of its final pay decision and to do so speedily. The law expects the pay-consultation process to be accomplished in 90 days unless voluntarily extended by the Postal Service and NAPS.
When pay talks were not completed in December 2017 and the USPS requested an extension of the time for further consultation, NAPS agreed in a spirit of cooperation and good faith. We expected the extension to be short-lived. Unfortunately, it was not. NAPS received the Postal Service’s FY16-19 EAS pay decision on June 28, 2018.
After reviewing the USPS pay decision, the NAPS Executive Board on July 6 unanimously decided to petition the Federal Mediation and Conciliation Service (FMCS) to initiate fact-finding under Title 39 to more extensively review the pay decision. While NAPS welcomed some parts of the pay decision—increases in promotional pay, changes in the minimum and maximum pay ranges and upgrades of EAS-12 administrative assistants—we questioned the Pay-for-Performance (PFP) section of the pay decision because it did not adequately compensate EAS employees for their hard work and contributions to the success of the Postal Service.
In good conscience, NAPS could not accept a USPS pay decision where approximately 19,000 EAS employees would not receive a pay increase in FY18 and possibly even more in FY19, especially after FY17, when approximately 5,600 EAS employees did not receive a PFP payout. When the USPS issued a modified July 20 pay decision, NAPS also deemed this proposal inadequate, as well as contrary to law, prompting NAPS to continue to pursue fact-finding.
Under the Title 39 fact-finding process, a three-member panel of supervisory and managerial pay experts reviews the Postal Service pay decision and provides non-binding recommendations to the Postal Service on appropriate changes to the underlying package. The FMCS has assisted NAPS and USPS in assembling a three-member panel, comprising chairwoman Susan E. Halperin, Robert S. Hite and Joshua M. Javits.
NAPS and the USPS will present their cases to the panel at a hearing scheduled for Dec. 10-11 at NAPS Headquarters. Under the law, following the hearing and the panel’s report on its findings and recommendations, the Postal Service is required to consider the panel’s recommendations and reach a final pay decision, explaining its justification for its final decision.
So, when can NAPS expect to receive a final fact-finding EAS pay decision? First, we must wait for the fact-finding panel to submit its recommendations to the Postal Service, which could take up to 30 days after we complete our presentations.
Then, the Postal Service has 15 days, after giving full and fair consideration to NAPS’ and the panel’s recommendations, to present their final pay decision to NAPS. In addition, the parties may voluntarily agree to an extension of these time deadlines, as warranted. Therefore, a final USPS EAS pay decision for FY16-19, at the earliest, likely will not be received until early 2019.
Unfortunately, the law governing fact-finding does not guarantee a level playing field; the USPS is not obligated to accept any of the fact-finding panel’s recommendations. Again, as long as the USPS has met the statutory requirement of providing fair and full consideration to the panel’s recommendations, the USPS has met its statutory obligation. The Postal Service’s EAS pay decision, following completion of fact-finding, represents the ultimate fact-finding finale.
And, finally, December is the finale of my 2018 ice-cream-flavor-of-the-month recommendations: gingerbread cookie dough!