SERVING OUR CLIENTS AND COMMUNITY DURING COVID-19

Protecting U.S. Postal Workers From Whistle-blowing Retaliation

As drastic changes to the U.S. Postal Service (USPS) result in mail delivery delays, some postal workers have chosen to speak publicly about how these changes are impacting their work environment. Given the highly-politicized news coverage of postal service changes leading up to what is expected to be a largely mail-in presidential election, postal workers who refuse to remain silent may face retaliation from their employer.

IMG_0999-300x169Last month, Frank Bollinger, a union official representing approximately 900 members of South Jersey Area Local 0526, gave an interview to NJ Advance Media in which he described the problems he saw at work and the negative impact they were having on both his union members and the general public. After the interview was published, Mr. Bollinger received a threatening letter from his employer that indicated his job might be in trouble for speaking publicly about workplace issues. Specifically, management responded to Bollinger’s interview by sending him a letter demanding his appearance at an investigative interview. The letter had a threatening tone, reading in part that the investigative interview would be Bollinger’s “Day in Court” and that he was facing “a very serious matter.” After NJ Advance Media published a second story, outing the employer’s letter to Mr. Bollinger, management at the USPS backpedaled and backed down. Although the post office management has since canceled the investigative interview, Mr. Bollinger questioned whether he could be disciplined for speaking out or if his speech was protected under the National Labor Relations Act (NLRA).

The NLRA, however, does not apply to federal, state, or local government employees, many agricultural workers, or employees who work on interstate railroads and airlines. Congress enacted the NLRA in 1935 to protect the rights and general welfare of private sector employees, encourage collective bargaining, and curtail certain private sector labor management practices that were harming workers and the U.S. economy. It is considered an unfair labor practice for an employerto interfere with, restrain, or coerce employees in the exercise of their rights under the NLRA. Under the NLRA, employees have the right to organize, form labor organizations and labor unions, appoint representatives to engage in collective bargaining, and engage in other “concerted activities” for the purpose of collective bargaining or other workplace safety and fairness issues. Concerted activities are activities that bring workers together as a cohesive group to address work-related issues. Some examples of concerted activities are talking with co-workers about wages and benefits, circulating a petition to improve hours, participating in a concerted refusal to work in unsafe conditions, and joining with co-workers to talk directly to the employer, to a government agency, or to the media about problems in the workplace. An employer cannot fire, discipline, threaten or “coercively question” an employee for any of these activities. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. However, a private sector employee is not protected under the NLRA if he or she says or does something egregiously offensive or knowingly false, or if he or she publicly disparages the employer without any underlying labor controversy.

Although the NLRA does not apply to Mr. Bollinger as a public employee, his statements could be protected under federal whistle-blower laws and the First Amendment. There are strict requirements for federal employees to gain whistleblower protections for engaging in protected activity under federal law.  First, a federal employee must disclose a violation of a law, rule or regulation, gross mismanagement, a gross waste of funds, an abuse of authority or a substantial and specific danger to public health or safety.  Second, the employee must avoid using normal channels if the disclosure is in the course of the employee’s duties, report the wrongdoing to someone other than the wrongdoer, and suffer an adverse employment action. Finally, the employee must take internal steps to seek redress through proper channels before filing a complaint with the U.S. Merit Systems Protection Board.

Postmaster General Louis DeJoy has come under fire recently for making several changes to the USPS that many believe are politically motivated and impede the proper functioning of the postal service. In his interview, Mr. Bollinger confirmed that mail delivery was being delayed and blamed it in part on the removal of sorting equipment from a South Jersey processing and distribution center. Bollinger also reported that because the removals are impacting jobs, mainly by resulting in reductions in overtime and staffing, his union was investigating management’s claims that the equipment removal was due to reduced volume and demand. The decisions of USPS management are also impacting the public, and if motivated by a desire to influence the upcoming presidential election, are certainly contrary to public policy.

Ultimately, even though the NLRA does not apply to postal workers, there are other avenues that federal employees can seek redress for engaging in protected activity. USPS will not be able to threaten its employees into silence or retaliate against them for voicing concerns about recent changes to the postal service that are unlawful, create a danger to public health or safety or constitute a gross mismanagement or waste of funds. Employees who speak out against wrongful activities for the public benefit can ultimately prevail against those abuses of power.

You can read the NJ Advance Media interview with Mr. Bollingerher here.

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