The United States Postal Service must reverse a new policy that banned employees from taking unpaid time off to campaign for political candidates, a 3rd party arbitration ruled. The decision came after postal unions challenged the policy as violating their collective bargaining agreements and First Amendment rights.
Postmaster General Megan Brennan announced these changes to leave without pay last year following an independent investigation that found the agency engaged in “systemic violations” of the Hatch Act, leading to an “institutional bias” in favor of certain candidates.
The law prohibits federal employees from engaging in certain political activity while on the clock or in official capacity. Hatch Act violations, reported by the Office of Special Counsel, totaled $90,000 of overtime to cover for employees who took time off to campaign in advance for the 2016 election. “We concluded that the USPS practice of facilitating and directing carrier releases for the unions’ political activity and the use of union official LWOP for such activity resulted in an institutional bias in favor of [the National Association of Letter Carriers] endorsed political candidates and that this violated the Hatch Act,” said Adam Miles. He was acting Special Counsel at the time.
USPS acted to remedy the problem, as OSC directed, which led to a new policy that the agency sent to unions in October 2017.
NALC, American Postal Worker’s Union, and the National Postal Mail Handlers Union collectively brought their challenge before an arbitrator. USPS can not make changes to wages, hours, or working conditions without engaging in negotiations, they argued, meaning the Postal Service was in violation of its CBA’s. The arbitrator ruled OSC’s guidance was non-binding and postal management was still required to bargain over the changes.
“I have found the changes to be inconsistent with the agreement, and as such, they cannot be fair, reasonable and equitable,” arbitrator Stephen Goldberg wrote in his decision. He directed USPS to rescind its policy changes and to “make whole” any employee who was denied LWOP to engage in partisan political activity.
“The award protects employees’ rights to request LWOP to volunteer through their union to participate in important political activities, like the upcoming November elections,” APWU said in a statement. “Postal employees have the legal right to campaign and participate in politics, subject to limits under the Federal Hatch Act.”
In the 2016 election, 97 NALC employees took LWOP to participate in “get out the vote” activities, which led to a complaint to OSC by Sen. Ron Johnson, R-Wisc.
Paul Hogrogian, National Postal Mail Handlers Union president said Johnson’s “political pressures” pushed USPS to issue the policy changes in the first place. “Those changes were made unilaterally, and without any bargaining or even consultation with any major postal unions,” Hogrogian said. “Arbitrator Goldberg easily found that these unilateral changes violated the national agreement and ordered that they are rescinded.”
Facility and district managers grant postal workers LWOP requests based on needs of both the employee and the postal service, as well as potential costs to the agency. In the cases in question, HQ didn’t coordinate leave requests with proper staff to ensure employees taking time off wouldn’t be disruptive to local opportunities.
The IG found local supervisors had originally raised concerns about the operational impact of employees’ leave, but they were ignored. In some cases, the employees’ supervisors declined the requests before higher-level managers overruled them. This created “systemic violations” of the Hatch Act, OSC said. The IG found employees disproportionately took time off—about 82% of the cumulative 2,776 days.
Brennan said that the intent wasn’t to create any bias toward a candidate, just to keep the union happy. “It is in our best interest to maintain good relations,” she said since 90% of the USPS workforce is covered by CBA’s.
USC was also careful not to dissuade unions or employees from being politically active. “The postal unions and individual employees and members are permitted, and should be encouraged, to maintain PAC’s endorse candidates, and enlist union members to support their electoral agenda on their own time,” OSC wrote in its report.
The Postal Service is now planning to fight the ruling, it announced. The agency plans to challenge that decision and will ask the Justice Department to intervene on its behalf. “The Postal Service intends to formally request that the U.S. Attorney’s Office for the District of Columbia file a petition in federal court seeking to have the arbitration award vacated,” said Dave Partenheimer, an agency spokesman. “We will work closely with the U.S. Attorney’s Office and are also seeking support and additional guidance from the Office of Special Counsel in connection with that effort.”