Arbitrator Newman Rejects the Postal Service's Arguments
RE: National Arbitration Decision: NACI Background Check (pdf)
We are extremely pleased to announce that the NPMHU has prevailed in its national arbitration against the Postal Service over the ability of the Postal Service to separate employees who have completed their probationary period based on the results of a National Agency Check with Inquiries (NACI) background check without providing those employees with access to the grievance and arbitration process. A complete copy of the award is attached.
By way of background, when applicants for Postal employment receive a job offer, they begin a background check process referred to as a NACI review conducted by the Postal Inspection Service. Employees are permitted to work while the NACI process is pending. In some cases, the Postal Service separated employees based on the results of the NACI process after the employee had completed their ninety-calendar day probationary period. In or around 2020, the NPMHU became aware that at the regional level the Postal Service began challenging the arbitrability of post-probationary NACI separations, arguing that such actions are non-disciplinary administrative separations that fall outside the scope of the National Agreement’s arbitration clause. The NPMHU, along with the other Postal unions, filed grievances at the national level challenging the Postal Service’s conduct. A hearing was held before Arbitrator Margo Newman.
Arbitrator Margo Newman rejected the Postal Service’s arguments, and in her Award, she makes two important findings:
First, Arbitrator Newman rejected the Postal Service’s position that a grievance protesting the separation/removal of a non-probationary employee based upon an unfavorable NACI report is not subject to the grievance and arbitration process under Article 15. At the heart of this finding was Arbitrator Newman’s recognition that the “only express prohibition to access to the grievance procedure in the National Agreement is Article 12.1(A), where the parties agreed that probationary employees do not have “access to the grievance procedure” to challenge a separation. Arbitrator Newman noted that there is “no similar provision anywhere in the National Agreement with respect to non-probationary employees.”
Second, Arbitrator Newman held that in any such arbitration, the Postal Service “must prove that it had just cause for the separation/removal under the principles of Article 16.” Arbitrator Newman noted the basis for the separations based on a NACI review is alleged past misconduct by the employee and that, therefore, these separations are “more akin to . . . off-duty misconduct cases.” Recognizing that arbitrators “treat these cases as disciplinary . . . disputes,” she found that “[t]here is no question that . . . the just cause provision of Article 16 applies.”
Arbitrator Newman also rejected the Postal Service’s request that she find that an unfavorable NACI would in all instances constitute just cause for removal/separation. Instead, she held that the “facts of each case must be considered and weighed individually, in line with specific criteria relevant to job performance. . . .”
In short, Arbitrator Newman ruled that if “the Postal Service wishes to have an unfettered right to separate an employee due to an unfavorable NACI report, it must find a way to do so within the employee’s probationary period.” Once that period passes, if the Postal Service makes a determination that an unfavorable NACI merits separation, that decision is subject to review through the grievance-arbitration procedure and, ultimately, by a neutral arbitrator applying the principles of just cause.
Reference: www.npmhu.org
