The Hatch Act and the Postal Service practice of giving time off to union representatives has now gone to arbitration, an arbitration decision has been issued and, no doubt, more litigation will be coming in the near future.
Results of the OIG Investigation at USPS
In July 2017, the Office of Inspector General (OIG) for the Postal Service issued a report of its investigation into the amount of leave without pay (LWOP) given by the Postal Service to employees to help the union achieve its political objectives in the 2016 election.
Based on the report, the Postal Service absorbed the resulting overtime expenses. The agency did not appear to consider its operational needs as a result of giving a number of employees time off to help the union achieve its political objectives. The requests were granted without coordinating with operating agency officials. The efforts by the National Association of Letter Carriers (NALC) were largely geared to help Hillary Clinton in her campaign for president and other Democrats running for office.
The union members involved in the union’s political campaign were paid by the Letter Carrier Political Fund, which was the NALC political action committee.
In granting requests to approve about 2,776 days away from work to union officials to work on a union’s political activities, the Postal Service did not take into account the agency’s operational needs and did not coordinate the requests with operating officials according to the OIG.
The OIG report did not address the relevance of the Hatch Act to the granting of leave without pay in order to further the union’s political objectives during the election.
Results of OSC Investigation
Subsequently, the Office of Special Counsel (OSC) conducted its own investigation into the use of leave without pay (LWOP) by Postal Service employees to participate in political activity.
The OSC issued its report in July 2017.
OSC concluded that the union’s Labor 2016 program was “political activity” for Hatch Act purposes.
As a result, the actions of the Postal Service in providing federal Postal workers to work in the election as was done in this case were a violation of the Hatch Act. OSC reached this conclusion because “The collective involvement of USPS management in the Labor 2016 program constitutes a systemic violation of the Hatch Act”.
The rationale of OSC was that the Hatch Act violations were largely based on actions by the agency and not by any one employee. OSC writes in its report that the findings were provided to the Postal Service and the organization will take action to comply with the recommendations.
The overall conclusion of OSC was:
OSC identified institutional Hatch Act issues not exclusively attributable to any one employee, so disciplinary action is not appropriate in this case. But USPS must prevent future violations through changes in its practices regarding union official LWOP. OSC already has communicated the need to take corrective action to USPS, and agency representatives appear ready to take steps necessary to comply with the Hatch Act. OSC asks USPS to notify OSC of its correction action plan no later than August 31, 2017. OSC attorneys are available to assist USPS in its efforts to take corrective measures.
Actions by the Postal Service
The Postal Service took the OSC report seriously and moved out quickly. In October 2017, the agency notified the American Postal Workers Union that it intended to implement a Corrective Action Plan to ensure it was complying with the Hatch Act. The union quickly filed a grievance and the issue ultimately went before arbitrator Stephen B. Goldberg.
In his award on August 6, 2018, the arbitrator essentially upheld the union’s version of events.
The arbitrator ordered the agency to rescind its actions to ensure compliance with the Hatch Act and to “make whole any employees disciplined or whose LWOP requests were denied because they indicated they were requesting ‘union official’ LWOP to engage in a partisan political activity.”
As a result of the arbitration award, the Postal Service issued the following statement:
The Postal Service intends to formally request that the United States Attorney’s Office for the District of Columbia file a petition in federal court seeking to have the arbitration award vacated,” said Dave Partenheimer, a spokesman for the agency. “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.
Different Perspective, Different Opinions: Short and Long-Term Implications
The Postal Service labor relations process is a complex system. When an arbitrator gets involved, the process is likely to become even more complex than usual.
Federal agencies are cognizant of their responsibilities of accomplishing their mission and complying with the assortment of laws and regulations that apply to them.
An arbitrator, usually paid by both the agency and the union, often has a much different perspective. His or her job is to resolve a dispute. The outside opinions of other organizations and regulations often seem less relevant to an arbitrator. He (or she) will often look more closely at a labor agreement as the most important document. An agency will often not take that approach.
In this case, the arbitrator downplayed the role and responsibility of the Office of Special Counsel and the Inspector General for the Postal Service. Instead, he focused on a labor agreement. That is not surprising as that is what arbitrators are usually paid to do.
The result is likely to be that a court decision (or two) will eventually be forthcoming that will look closely at the role of OSC in interpreting the Hatch Act and the responsibility of the Postal Service to comply with the multiple laws and regulations it must adhere to.
In the short term, the union’s objectives have probably been met. They can use federal Postal employees to help achieve their political objectives in the upcoming midterm elections.
The agency will, presumably, have to absorb the overtime costs or other costs involved so, in effect, the federal government will be helping to fund the union’s political activity.
In the longer term, this case will provide interesting guidance on how the Hatch Act will be interpreted and applied to maintain political neutrality of federal employees and agencies during an election season.