The Service's action was triggered by a report of the Office of Special Counsel asserting that leave for that purpose was prohibited by the Hatch Act. (OSC Report)
The OSC investigation was triggered by a complaint submitted by Senator Ron Johnson, Chair of the Senate Committee on Homeland Security and Government Affairs. The Senator had received information from a constituent that thePostal Service was incurring unnecessary overtime costs by granting LWOP for employees to participate in election activities sponsored by the AFL-CIO. These activities included door-to-door canvassing, phone banks, and "get out the vote" efforts.
The OSC recommended that the Postal Service expressly prohibit use of LWOP for partisan political activity.
Following OSC's recommendation, the Postal Service modified its ELRM to specifically prohibit use of LWOP for partisan political activity and to require employees applying for such leave to certify that it wouldn't be used for such purposes.
APWU grieved the Service's actions, asserting that they were contrary several provisions of its CBA, including a Section that provided:
The leave regulations in Subchapter 510 of the Employee and Labor Relations Manual, insofar as such regulations establish wages, hours and working conditions of employees covered by this Agreement, other than PSEs, shall remain in effect for the life of this Agreement.
The CBA also required notice and consultation prior to any changes not otherwise inconsistent with the agreement.
The grievance was appealed to arbitration, and NALC and the National Postal Mail Handlers Union intervened.
Sustaining the grievance, Arbitrator Goldberg rejected the Postal Service's argument that its action was compelled by the report and that the dispute was therefore not subject to arbitration. He noted:
The Postal Service argument fails to take into account the limited authority vested in the OSC. As the Unions point out, the OSC does not have the power to determine whether a violation of the Hatch Act has occurred, much less to determine an appropriate remedy for such a violation. OSC is authorized only to investigate allegations of Hatch Act violations, to prosecute alleged violations before the Merit Systems Protection Board, and to issue advisory opinions. It is only the Merit Systems Protection Board which has the authority to determine whether a violation of the Hatch Act has occurred, and if so, to impose an appropriate penalty. An opinion or allegation by OSC of a Hatch Act violation is thus without legal effect, and, contrary to the Postal Service assertion, may be ignored without penalty.
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Sustaining the grievance, Arbitrator Goldberg rejected the Postal Service's argument that its action was compelled by the report and that the dispute was therefore not subject to arbitration. He noted:
The Postal Service argument fails to take into account the limited authority vested in the OSC. As the Unions point out, the OSC does not have the power to determine whether a violation of the Hatch Act has occurred, much less to determine an appropriate remedy for such a violation. OSC is authorized only to investigate allegations of Hatch Act violations, to prosecute alleged violations before the Merit Systems Protection Board, and to issue advisory opinions. It is only the Merit Systems Protection Board which has the authority to determine whether a violation of the Hatch Act has occurred, and if so, to impose an appropriate penalty. An opinion or allegation by OSC of a Hatch Act violation is thus without legal effect, and, contrary to the Postal Service assertion, may be ignored without penalty.
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There exists no basis for inferring that the arbitration provision of the National Agreement was intended to exclude any dispute in which the arbitrator’s decisionmay create the risk of legal proceedings against one of the parties.
For much the same reason, the Arbitrator found the Service's actions were inconsistent with its contractual obligations:
The OPS [sic] does not have the authority to enforce the Hatch Act; only the Merit Systems Protection Board possesses that authority. Hence, the OSC opinion that the ELM violated the Hatch Act is not that of a court (or agency) of competent jurisdiction, and the Postal Service may not rely on the OSC ruling as a defense to the otherwise valid Union allegations that the PostalService’s changes in the ELM violated Articles 5, 10.2, and 19 of the Agreement.
While noting that he was making no determination as to whether the OSC's view might ultimately prove correct, he ordered the Postal Service to rescind the changes to the ELM and make whole any employee who was disciplined or whose LWOP request was denied because they indicated they were requesting "union time" to engage in partisan political activity.
The OPS [sic] does not have the authority to enforce the Hatch Act; only the Merit Systems Protection Board possesses that authority. Hence, the OSC opinion that the ELM violated the Hatch Act is not that of a court (or agency) of competent jurisdiction, and the Postal Service may not rely on the OSC ruling as a defense to the otherwise valid Union allegations that the PostalService’s changes in the ELM violated Articles 5, 10.2, and 19 of the Agreement.
While noting that he was making no determination as to whether the OSC's view might ultimately prove correct, he ordered the Postal Service to rescind the changes to the ELM and make whole any employee who was disciplined or whose LWOP request was denied because they indicated they were requesting "union time" to engage in partisan political activity.
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