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Arbitrator: USPS must rescind policy on unpaid political leave

In July 2017, the Office of Special Counsel called on all federal agencies to disallow unpaid union official leave when its purpose was for an employee to engage in "partisan political activity." It claimed that allowing leave for that purpose violates the Hatch Act, which limits federal employees' participation in political campaign activities.

Furthermore, after finding that many federal agencies have leave policies allowing the activity, the OSC called for the removal of those policies so as not to systemically violate the Hatch Act. The U.S. Postal Service complied and changed its policy.

The American Postal Workers Union objected and took the case to arbitration. It argued that there are rules that prevent the Postal Service from changing its leave policy mid-term and from unilaterally making changes to any term or condition of employment without first consulting the union.

The arbitrator ruled in favor of the union. He stated that the Merit Systems Protection Board, not the OSC, is the agency tasked with determining whether Hatch Act violations have occurred. Therefore, an OSC opinion did not put the Postal Service under any obligation to change the policy without consulting with the union first.

"To be sure," the arbitrator wrote, "ignoring an OSC opinion or allegation creates the risk that OSC will institute proceedings before the MSPB. 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."

As a result, he ordered the Postal Service to rescind the changes it made to the leave policy and to "make whole any employees disciplined or whose LWOP requests were denied" when the policy was initially changed.

This outcome means that -- at least for now -- members of the American Postal Workers Union can continue to take leave without pay in order to volunteer for political campaigns.

That policy may ultimately change, but only if the OSC initiates proceedings before the MSPB and if the board indeed rules that volunteering for political campaigns while on unpaid leave violates the Hatch Act.

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