A third-party arbitrator has ruled that unionized postal employees may continue to take unpaid leave to campaign for political candidates, but the U.S. Postal Service says it plans on challenging the ruling.

Earlier this month, independent arbitrator Stephen Goldberg rejected USPS’ changes to the Employee and Labor Relations Manual (ELM) that restricted postal workers from taking leave-without-pay to engage in “partisan political activity.”

The American Postal Workers Union and the National Association of Letter Carriers challenged the new language in the manual, arguing that the ELM barred “unilateral changes affecting wages, hours,
and other terms and conditions of employment.”

In his Aug. 6 ruling, Goldberg determined that USPS violated the unions’ collective bargaining agreements, and ordered the agency to rescind the language on political activity.

“I have found the changes to be inconsistent with the agreement, and as such, they cannot be fair, reasonable and equitable,” he wrote.

In a blog post following the ruling, APWU told its members they can continue to take leave without pay for political activity in the upcoming midterm elections in November.

“APWU members can continue to volunteer in political campaigns under the long-standing leave-without-pay rules in the Employee and Labor Relations Manual (ELM),” the union wrote.

However, the Postal Service said it plans to challenge the arbitrator’s ruling.

“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,” Dave Partenheimer, a USPS spokesman, said in a statement.  “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.”

In fall 2016, the Office of Special Counsel received a complaint from Sen. Ron Johnson (R-Wis.) that the Postal Service had incurred unnecessary overtime costs by allowing its unionized workers to take unpaid leave to attend AFL-CIO’s Labor 2016 Program.

The Labor 2016 program, according to the arbitrator’s ruling, sought to elect Hillary Clinton and pro-union candidates across the country by engaging in such activities as door-to-door canvassing, phone banking, and other “get out the vote” efforts.

The Letter Carrier Political Fund, NALC’s political action committee, paid union members who participated in the get out the vote efforts.

“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,” Goldberg wrote in the ruling.

However, the postal unions argued that OSC may only offer advisory, non-binding opinions about possible Hatch Act violations. Only the Merit Systems Protection Board, they argued, has the authority to decide whether the Hatch Act has been violated.

Goldberg agreed, adding that OSC’s opinions on potential Hatch Act violations has no legal effect, and “may be ignored without penalty.”

“To be sure, ignoring an OSC opinion or allegation creates the risk that OSC will institute proceedings before the MSPB,” he added. “The possibility that it will do so does not, however, lead to the conclusion that the Postal Service need not abide by its contractual commitment to arbitrate.”

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