Department of Labor and AFGE Field Labor Locals (Authority decision, July 26, 1985)

Final FLRA decision. The Authority resolves exceptions to an arbitration award. Under 5 U.S.C. § 7123(a)(1), orders involving arbitral awards are generally excluded from judicial review unless they involve an unfair labor practice under 5 U.S.C. § 7116. This decision does not state that it involves one.

Plain-English summary

An arbitrator ordered the Department of Labor to distribute material through its internal mail system. The Authority found that the material was associated with partisan political activity barred by the Hatch Act. It struck the sentence requiring agency distribution.

Decision snapshot

• Authority: Arbitration review under 5 U.S.C. § 7122(a) and Hatch Act limits.
• Outcome: Sentence requiring distribution of political material struck.
• Key point: Agency mail could not be used to distribute proscribed partisan material.

Full text (FLRA public release)

[ v19 p322 ]

19:0322(45)AR

The decision of the Authority follows:

19 FLRA No. 45

U.S. DEPARTMENT OF LABOR
Agency

and

NATIONAL COUNCIL OF FIELD
LABOR LOCALS, AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
Union

Case No. O-AR-846

DECISION

This matter is before the Authority on an exception to the award of Arbitrator Martin Lubow filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

The grievance in this case concerned the Agency's obligation to distribute Union materials through the internal mail system under the terms of the parties' collective bargaining agreement. As part of the grievance, the Arbitrator addressed the issue of "(t)o what extent must the (Agency) accept obviously 'political' material for (d)istribution." In this respect, the Arbitrator, for example, questioned whether the Agency would have to accept for internal mail distribution a union leader "endorsement of an opposition candidate for president or urg(ing of) the defeat of a particular Congressman." Pursuant to his application of the terms of the parties' agreement, the Arbitrator ruled that these and similar such matters must be accepted by the Agency for distribution and that "political" matters have not been barred from distribution in this context. Accordingly, in this respect the Arbitrator ordered that future submissions shall be evaluated in a manner consistent with these principles.

In its exception the Agency contends that the award is contrary to provisions of the Hatch Act, 5 U.S.C. 7324, /1/ and implementing regulations, 5 CFR 733. In support, the Agency principally argues that the activity addressed by the Arbitrator in the context of directing that associated political materials must be distributed by the Agency is partisan political activity proscribed by the Hatch Act and implementing regulations and that consequently by directing the distribution of materials associated with such activity and similar partisan political activity, the award is deficient. The Authority agrees.

The Hatch Act, 5 U.S.C. 7321-7327, specifically prohibits certain partisan political activity on the part of Federal employees. U.S. Civil Service Commission v. National Association of Letter Carriers, 413 U.S. 548 (1973). Among the activities prohibited by the Act are "(e)ndorsing or opposing a candidate for public office in a partisan election or a candidate for political party office in a political advertisement, a broadcast, campaign, literature, or similar material." 5 CFR 733.122(b)(10). Because the Arbitrator in effect has ordered the distribution by the Agency of materials associated with such proscribed political activity, the Authority finds that the award is deficient under the Statute. Specifically, the Authority concludes that the award is deficient as inconsistent with the Hatch Act and implementing regulations because it effectively mandates that the Agency use official authority to facilitate proscribed political activity and associated materials by distributing through the Agency's internal mail system such political materials.

Accordingly, the award is modified by striking the second sentence. Issued, Washington, D.C. July 26, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ 5 U.S.C. 7324 pertinently provides:

(a) An employee in an Executive agency or an individual employed by the government of the District of Columbia may not--

(1) use his official authority or influence for the purpose of interfering with or affecting the result of an election; or

(2) take an active part in political management or in political campaigns.