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Mike Morris, Director Telephone: (202) 842-4273 Fax: (202) 371-0992

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Protesting is a First Amendment Right

Mike Morris, Director
Industrial Relations

(This article was first published in the January/February 2012 issue of The American Postal Worker magazine.)

Postal workers have heeded the call of the APWU to take the battle for our existence to the streets and to the offices of our Congressional representatives. I am very proud of the fact that our membership has mobilized with us in this struggle.

Postal employees have a right, protected by the First Amendment, to protest against the closure or consolidation of postal facilities.

Unfortunately, some local Postal Service managers have tried to put a damper on the lawful participation of our members in this regard. They have done so by citing ELM Section 667.12, which states:

“Employees in active status must not engage in campaigns for or against changes in mail service. This regulation must not be construed to infringe upon the rights to participate in labor organizations.”

Using this ELM citation as authority to quash the constitutional rights of the membership is inappropriate.

There is no question that postal employees have a constitutional right, protected by the First Amendment, to participate in public meetings and to make public statements opposing the closure or consolidation of postal facilities, and opposing the reduction of postal services, because those actions by the Postal Service are matters of public concern.

Insofar as postal employees are participating in lawful concerted activity with their fellow employees to oppose postal facility closures or the reduction of postal services, or to oppose legislation that would remove postal workers from federal health benefits and retirement programs, those activities are protected concerted activities under the National Labor Relations Act.

If a postal manager were to interpret or apply ELM Section 667.12 in a manner that would interfere with, restrain or inhibit employees from exercising these rights, such action would be unlawful.

Fifteen years ago, the Postal Service issued instructions to the field from the Vice President of Labor Relations regarding management’s policy, which remains in effect. The following guidelines, which were outlined by the USPS General Counsel and the Inspection Service, were issued on June 11, 1996:

• It is lawful for Postal Service employees to engage in peaceful informational picketing on public property.
  
  
• Picketing may take place on public sidewalks outside the Postal Service facility. Picketing cannot take place in the interior of Postal Service buildings such as the lobby area.
  
  
• Pickets may not block public entrances or exits or be situated in such a way as to prevent individuals from using the Postal Facility.
  
  
• Picketing should be peaceful. If there is violence on the picket line local police should be called to handle any disturbance. If individuals responsible for violent or disruptive activity are identified as Postal Service employees, they may be subject to disciplinary action as well as any criminal activity instituted by municipal authorities.
  
  
• Employees participating in informational picketing may not be disciplined for wearing their postal uniform while picketing.
  
  
• While Postal Service employees may engage in lawful informational picketing, it cannot be “on-the-clock.” Rather, postal employees must use annual leave or off-duty hours to engage in picketing. The determination whether to grant an individual annual leave should be guided by the same principles that managers use in granting normal annual leave requests. The fact that the employee indicates he or she needs annual leave to picket should not influence a manager’s decision to grant or deny an annual leave request.
  
  
• Postal Service management should not attempt to engage picketing employees in a debate as to the merits of the unions’ actions. Similarly, Postal Service management should not discuss the merits of the unions’ activities with employees who choose not to engage in informational picketing. Postal Service management should avoid any activity which may be perceived as harassment of picketing employees or any other activity which could conceivably have the possibility of interfering with the lawful picketing.
  
  
• Inasmuch as informational picketing is lawful, Postal Service management should not engage in any actions subsequent to the unions’ picketing activity which could be interpreted as retribution against those employees who chose to engage in informational picketing activities who were nonscheduled, off-the-clock or on approved annual or approved leave without pay status. Similarly, management should not “reward” those employees who chose not to engage in informational picketing activities. Violation of this guidance could result in unfair labor practice charges being filed against the Postal Service.
  
  
• Postal Service management should not engage in surveillance activities as they relate to lawful informational picketing.

Clearly, the USPS at the national level recognizes that the APWU is acting within its rights under the Constitution to organize protests against the closure and consolidation of postal facilities, the reduction of postal services, and the elimination of federal health and retirement benefits for postal employees. Any action by postal officials to interfere with, restrain or coerce postal workers participating in these activities should be documented and reported to APWU headquarters immediately.

Arbitration Hearing Held On Dispute Over Schedule of New Full-Timers An arbitration hearing was held Dec. 13-14, 2011, on the first two of several disputes that arose when management incorrectly implemented new provisions of the 2010-2015 Collective Bargaining Agreement. The disputes involve the placement of newly converted full-time employees into non-traditional schedules, and the denial of retreat rights to Clerk Craft employees on posted Non-Traditional Full-Time (NTFT) duty assignments in their former installations. The contract, which was ratified by union members in May, required the Postal Service to convert to full time all Clerk Craft part-time flexibles in Level 21-and-above offices and all part-time regulars, regardless of the size of their office. It also required management to convert all part-time flexibles and part-time regulars in the Motor Vehicle Craft. The conversions were effective Aug. 27, 2011. In accordance with Articles 7 and 8 of the Collective Bargaining Agreement, the newly converted regulars should have been placed in residual vacancies or given schedules of five 8-hour days. Instead, management placed most of the employees into newly-created NTFT assignments, many of them with just 30 hours of work per week. This was improper, because the NTFT positions had not been posted for bid, so they were not residual vacancies. Residual vacancies are positions that remain vacant after the completion of a voluntary bidding cycle. The union is asking the arbitrator to correct the contract violations by making all affected employees “whole” and instructing management to assign affected unencumbered/ unassigned workers to schedules of five 8-hour days. We will report on the arbitrator’s decision as soon as we receive it.

 

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