We are enclosing a copy of National Arbitrator Maggie Brogan's decision in the RI-399 dispute concerning application of paragraph 10(a) - the "unless'' clause - of the 2018 Update MOU. Click here for PDF.

By way of background, in 2018, the NPMHU, the APWU, and the Postal Service concluded negotiations on an "Update'' to the RI-399 procedures. One of the primary goals of the Update MOU was to alleviate what the parties have referred to as the "black hole" of pending national and lower-level RI-399 grievances. To achieve that goal, the Unions agreed to withdraw a majority of pending disputes, and the parties agreed to conduct new inventories to determine what craffwas performing specific work as of the 9-1-2017 status quo date.

Of particular concern to the NPMHU during the negotiation of the Update MOU was that in certain locations jurisdictional practices were inconsistent with a National-level craft determination previously issued by the Postal Service. Absent an exception to the status quo date jurisdiction, those inconsistent jurisdictional practices would be cemented in place. To address that concern, the NPMHU proposed, and the parties agreed, to an "unless" clause, which applies exceptions to the determination of jurisdiction on the status quo as of September 1, 2017. That provision provides that

The status quo shall be determined by the jurisdictional work assignment practices as of September 1st, 2014, unless those practices were contrary to a National-level craft determination previously issued by the Postal Service ....

One of the local jurisdictional practices that was inconsistent with a National-level craft determination was the Automated Flat Sorting Machine, the AFSM 100, as enhanced in 2006 with automatic induction and automatic tray handling (Al/ A THS). A 2006 National-level craftdetermination by the Postal Service assigned the primary jurisdiction of the feed station to the clerk craft, the primary jurisdiction of the load and prep stations to the mail handler craft, and the primary jurisdiction of the employee operating the A THS to the mail handler craft. Notwithstanding that determination, there were a number of places where the clerks continued to perform the prep station work assigned to the Mail Handler craft. Accordingly, when inventories were created pursuant to the Update MOU, the NPMHU exercised its right under the "unless" clause of the Update MOU to challenge the application of the status quo jurisdiction date. While those disputes were pending, the Postal Service changed the assignment of the prep station work on the AFSM 100 with AI/ATHS to the Mail Handlers in Peoria and Wichita.

The APWU filed a dispute through the NDRC, contending that the Postal Service could not change the assignment pursuant to the "unless" clause until the underlying dispute was fully resolved whether by arbitration or settlement.

Arbitrator Brogan squarely rejected the APWU's position, finding that there was no support for the APWU's position in the Update MOU, its bargaining history, or in the relevant caselaw. As Arbitrator Brogan wrote, "[t]here is nothing in the language of the Update MOU which states that the Postal Service cannot change jurisdiction based upon its good faith determination that a correction was necessary and the work in issue is covered by a National­level Craft Determination." Of particular significance to Arbitrator Brogan was that, if the Postal Service were forced to ignore the prior National-level craft determination, the Postal would be required to utilize and pay clerk craft employees to perform the prep station functions on the AFSM 100 with Al while the dispute was pending. And, then, if the Postal Service were to prevail at arbitration that the prep station work should be performed by Mail Handlers, it would then have to pay substantial cross-craft damages to the Mail Handlers.

Put simply, Arbitrator Brogan concluded, the APWU's position if adopted would "lead to an unworkable process that obstructs, rather than improves, the RI-399 tripartite scheme, which was the goal of the Update MOU."

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