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USPS Challenge to National Arbitration Decision on Hatch Act and LWOP is Dismissed

Back in August 2018, we circulated a copy of the National Arbitration Award issued by Arbitrator Stephen Goldberg on August 6, 2018 in a case concerning the use of Union LWOP for political activities under the National Agreement. The matter was heard in June 2018, briefed in July 2018, and decided in August 2018. The case was initiated by the APWU, with the NPMHU and the NALC intervening. It was generated by some stark political activity, succinctly described by Arbitrator Goldberg:

[T]he Office of Special Counsel (OSC), which [is a government agency that] has exclusive jurisdiction to investigate and prosecute alleged violations of the Hatch Act, received a complaint submitted by Senator Ron Johnson, Chairman of the U.S. Senate Committee on Homeland Security and Governmental Affairs. One of Chairman Johnson’s constituents, a Postal Service employee, had told Chairman Johnson that the Postal Service was incurring unnecessary overtime costs by releasing employees who were members of the National Association of Letter Carriers (NALC) to participate in the AFL-CIO’s Labor 2016 Program (Labor 2016).[1]

OSC investigated Chairman Johnson’s complaint, and on July 14, 2017, issued a report of the results of its investigation. (“Report of Hatch Act Investigation: Facilitating Labor Union’s Political Activity Through Use of ‘Union Official’ Leave Without Pay”.) OSC found the existence of a practice by which NALC would provide a Postal Service Headquarters Labor Relations executive with a list of carriers NALC had recruited and wanted released to participate in Labor 2016. The Labor Relations executive would disseminate the list to the relevant field offices, which would release the designated carriers on “LWOP – Union Official” leave status.

OSC found that such practices were long-standing, going back several election years. It further found that although these practices were intended to engender goodwill with the Union, they constituted a systemic violation of the Hatch Act, and created an institutional bias in favor of the NALC’s endorsed political candidates, a result prohibited by the Hatch Act.

Based on this investigative finding, and on political pressures from Senator Johnson and his supporters, the Postal Service unilaterally issued a Corrective Action Plan, which included changes to the ELM and its regulations on the use of Union LWOP and to the Form 3971. Those changes were made unilaterally, and without any bargaining or even consultation with the major postal unions.

Arbitrator Goldberg easily found that these unilateral changes violated the National Agreement, and ordered that they be rescinded. He also ordered the Postal Service to bargain with the APWU about any changes to Union LWOP. Follow the link below for the complete memorandum and additional details in this matter.

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