table of authorities historical background...

The Merging of Federal Employee Labor Relations with the Standard for Private Sector Labor Relations:The Experience with the Postal Service

© American Bar Association http://www.bna.com/bnabooks/ababna/annual/99/annual52.pdf

This paper was originally prepared as a class assignment for a labor law seminar at SetonHall University School of Law, Newark, N.J.

The information in this paper may prove useful to persons unfamiliar with the history of theU.S. Post Office and the U. S. Postal Service. Any opinions expressed herein are entirely theauthor’ s and do not represent the views of the American Bar Association or the AmericanPostal Workers Union or the United States Postal Service.

Stephen N. J. Sasala, Esquire P.O. Box 25511(908) 206-9301 Newark, N.J. 07101-7511Emai [email protected] FAX (973) 471-1841



THE NATIONAL LABOR RELATIONSACT AND THE POSTAL

REORGANIZATION ACT:

THE MERGING OF FEDERAL EMPLOYEELABOR RELATIONS WITH THE STANDARD

FOR PRIVATE SECTOR LABOR RELATIONS:THE EXPERIENCE WITH THE POSTAL SERVICE.

Labor Law SeminarEmphasis on National Labor Relations Act

May 11, 1992Stephen N. J. Sasala



TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

HISTORICAL BACKGROUND . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

DISCUSSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20


i


TABLE OF AUTHORITIES

CASES

Hitchman Coal & Coke v. Mitchell, 245 U.S. 229, (1917) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

N.A.L.C. v. Blount, 305 F. Supp. 546 (D.C.D.C. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Post v. U.S., 148 U.S. 124 (1893) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Railway Mail Ass'n v. Murphy, 44 N.Y.S.2d601 (Sup. Ct. 1943) . . . . . . . . . . . . . . . . . . . . . . . 19

Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

United Fed'n of Postal Clerks v. Blount, 325 F. Supp 879 (D.D.C. 1971) . . . . . . . . . . . . . . . . . 17

United Fed'n of Postal Clerks v. Blount, affd 404 U.S. 802 (1971) . . . . . . . . . . . . . . . . . . . . . . 17

United States v Branch 60, National Asso. of Letter Carriers, 312 F Supp 619 ( D.C.Conn 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

REGULATIONS

Executive Order No. 362 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Executive Order No. 402 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Executive Order No. 1142 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Executive Order No. 1471 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Executive Order No. 11491 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

STATUTES

5 U.S.C. § 3333(C) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

5 U.S.C. § 7311(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

5 U.S.C. § 7513 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10


ii


18 U.S.C. § 1918(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

EIGHT HOUR LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

LLOYD-LAFOLLETTE ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

NATIONAL LABOR RELATIONS ACT, § 7 (29 U.S.C. §157) . . . . . . . . . . . . . . . . . . . . . . . 16

UNITED STATES CONSTITUTION

I

First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the freeexercise thereof; or abridging the freedom of speech, or of the press; or the right of the peo-ple peaceably to assemble, and to petition the government for a redress of grievances. 18

V

Fifth Amendment

No Person shall be held to answer for a capital, or otherwise infamous crime, unless on apresentment or indictment of a Grand Jury, except in cases arising in the land or naval forces,or in the militia, when in actual service in time of War or public danger; nor shall any personbe subject for the same offence to be twice put in jeopardy of life or limb; nor shall becompelled in any criminal case to be a witness against himself, nor shall be compelled in anycriminal case to be a witness against himself, nor be deprived of life, liberty, or property,without due process of law; nor shall private property be taken for public use, without justcompensation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

XVII

Seventeenth Amendment

Election of Senators.

The Senate of the United States shall be composed of two Senators from eachState, elected by the people thereof, for six years; and each Senator shall have one vote.


iii


The electors in each state shall have the qualifications requiste for electors of the mostnumerous branch State legislature.

When vacancies happen in the representation of any State in the Senate, theexecutive authority of such state shall issue writs of election to fill such vacancies:provided, That the legislature of any State may empower the executive thereof to maketemporary appointment until the people fill the vacancies by election as the legislaturemay direct.

This amendment shall not be construed as to affect the election or term of anySenator chosen before it becomes valid as part of the Constitution. . . . . . . . . . . . . . . . . 9

OTHER AUTHORITIES

Annotation, Validity, Construction, and Application of Provisions of 5 U.S.C. § 7311(3) and (4)Prohibiting Federal Employees from Striking, Asserting Right to Strike, or being Member of Or-ganization known to assert right to Strike against Government, 23 A.L.R. Fed. 691, § 7 (1991) 14

Bowyer, Matthew J., They Carried the Mail, (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Cullinan G., The Post Office Department (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Cullinan, Gerald , The United States Postal Service (1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Developments in the Law- Public Employment[Part 1 of 2], 97 Harv. L. Rev. 1611 (1984) 3, 8

Doherty, William C., Mailman U.S.A. (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Gibson, The Supreme Court and Freedom of Expression From 1791 to 1917, LV FordhamL.Rev. 263 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Meltzer & Sunstein, Public Employee Strikes, Executive Discretion, and the Air TrafficControllers, 50 U. Chi. L. Rev. 731 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Raskin, The Air Strike is Ominous for Labor, N. Y. Times, August 16, 1981, at § 3, 1, col. 2 . 14

Reagan R. & Hubler R., Where's the Rest of Me? (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Rosenblum & Steinbach, Federal Employee Labor Relations: From the "Gag Rule" to ExecutiveOrder 11491, 59 Ky. L.J. 833, (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 17


iv


Sorkin, Alan L., The Economics of the Postal System, (1980) . . . . . . . . . . . . . . . . . . . . . . . . . 13

Staff of Senate Committee on Post Office and Civil Service, 94th Cong., 1st Sess., Explanation ofthe Postal Reorganization Act and Selected Background Material (Comm. Print 1975) . . . . . . 13


1


HISTORICAL BACKGROUND

The Post Office and it's successor, the Postal Service is one of the largest employers in the

United States. Sorting and distributing the mail is an extremely labor intensive business. No matter

how many improvements in automation for sorting the mail are made, someone will still have to deliver

it. That someone is still the letter carrier for the foreseeable future. The National Association of Letter

Carriers (Hereinafter NALC) is one of the oldest labor organizations in the United States.

However before we talk about the workers let me discuss some Post Office history.

From its beginnings, the Post Office has been involved in controversy. Originally the post office was

part of the Treasury Department and it did not become an independent department with Cabinet level

status until the first third of the nineteenth century. The functions and organization of the Post Office

as we know it today was a gradual process of change and adaptation which was accelerated during the

Civil War.

The fact that Post office operations extended into virtually every inhabited place in the United

States ensured that the Post Office would become involved in domestic politics. Vast sums of money

are involved in Post Office operations and businesses which use the mails frequently are concerned

with paying the lowest possible rates. Even today, the Postal Service employs about one quarter of the

federal civilian work force and in earlier years the percentage was far higher. Congress took note of all

these facts and kept its hands into Post Office operations until the dissolution of the Post Office

Department and the creation of the Postal Service in 1970. Practically every Presidential

Administration regarded the Post Office as the ideal place to put the politically faithful, no matter what

the cost in postal operational efficiency.

In 1970 Congress passed the Postal Reorganization Act which dissolved the Post Office


1 Gerald Cullinan, The United States Postal Service, 10-12 (1973).

2


Department. This Act took away the Cabinet Post of Postmaster General and created an "Independent"

Postal Corporation which would control its own finances unlike the Post Office Department which

returned all receipts to the treasury and depended on Congress for its finances. One main feature of

this Act was to state that the Postal Service was to be run like a Business and not to be dependent on

public appropriations for its operations.

This modern period from 1970 on saw postal mail volume increase but the number of

employees decrease as automation was being brought into play. There are many calls to repeal the

private express statutes and open up competition in the delivery of letter mail. Labor- Management

relations, never harmonious, collapsed with the postal strike in March,1970.

On March 17, 1970 over 210,000 postal employees went out on strike. This strike started with

the letter carriers in New York City. In a short time it had spread to every large metropolitan area in

the United States. The NALC did not condone this wildcat strike but it could not stop it right away.

NALC President Rademacher worked tirelessly to get the men back and after a week 98% of the

employees were back to work. No one had thought that the postal workers would strike because they

had never done so in the past despite some terrible provocations. The general public supported the

postal employees but probably only because the strike lasted only a week and did not result in any

stoppage of dividend, pension, wage, or welfare checks. This strike ended the impasse in Congress

over the Postal Reorganization Act and resulted in a large increase in wages for postal workers.1

" The Postmaster was almost always one of the leading politicians in the town, and all his

employees were at his personal mercy. He set working conditions and pay scales. There was no job


2 William C. Doherty, Mailman U.S.A. 22-23 (1960).

3 Civil Service (Pendleton) Act, Ch. 27, 22 Stat. 403 (1883)

The Pendleton act established a bipartisan Civil Service Commission and charged it with responsibility for promulgatingcivil service rules and establishing "practical" competitive examinations for entry into the federal service. ... Although about onlyabout ten percent of the federal work force, principally clerks in the Treasury and Post Office Departments, were classified" underthe original act, ...

Developments in the Law- Public Employment[Part 1 of 2], 97 Harv. L. Rev. 1611,1628 (1984)

4 Cullinan, Supra, 85.

5 Doherty, Supra, 27-28.

3


security. "2 Every time there was a change of Administration in Washington there was a wholesale

change in personnel. In 1883, Congress passed the Pendleton Civil Service Act.3 Postmasters were

excluded from the Act but it mandated competitive examinations for letter carriers and clerks in all post

offices with fifty or more employees. This affected about half the Post Office. Political solicitation in

federal buildings was prohibited and no forced contributions to political campaigns was allowed.4

Up until this time there was no effective nationwide union for letter carriers. Local letter

carriers' organizations would lobby Congress for favorable legislation. " The seeds of effective

organization grew out of the vacation situation. "5 Although vacations could be granted to letter

carriers by local postmasters, for all practical purposes only letter carriers in New York City got ten

days a year vacation. This was only allowed in New York if three letter carriers would do the work of

every fourth letter carrier on vacation.

Employees at headquarters in Washington D.C. however, were granted thirty days annual

leave. This leave was to allow these employees time to travel home on the poor transportation facilities

of the time to engage in political activities. Letter carriers in the New York City and Brooklyn areas

petitioned the Post Office Department for the same leave rights as headquarters employees. The legal

counsel for the Post Office tore up the petition and declared that there was no law allowing the local


6 Id.



9 Even though it was and still is a violation of law for a letter carrier or other postal employee to accept anything of value froma customer.

4


postmaster to grant annual leave and the New York City Postmaster was ordered to stop granting

annual leave.

Through the efforts of the New York City and Brooklyn Letter Carrier's Organization; the

support of Representative Samuel Sullivan Cox was gained and he sponsored legislation granting

annual leave to letter carriers.6 This legislation was passed by Congress on June 27, 1884 and it

granted letter carriers paid leave of up to fifteen days a year. " This revolutionary concept was not

extended to post office clerks, who for many years thereafter had to work seven days a week, fifty two

weeks a year for long and uncertain hours. "7

The Knights of Labor introduced an eight-hour bill for letter carriers in 1886. Officials at the

Post Office Department reacted in a desperate manner. Many letter carriers secretly belonged to the

Knights of Labor because the Post Office would try to dismiss any employee who belonged to this

union. " If a letter carrier were known to be a member of the Knights it was common practice all over

the country to stick him on spectacularly undesirable routes. " 8

Wages of the letter carriers were little changed since 1863 with the maximum salary still being

$1000 a year. This was the reason that many letter carriers depended on gratuities from their patrons

during the Christmas season.9 Many Postmasters forced carriers to take their vacation during this time

so they would be deprived of this added income.

The Post Office used spies to learn which letter carriers belonged to the Knights of Labor and


10 EIGHT HOUR LAW That hereafter eight hours shall constitute a day's work for letter-carriers in cities or postal districts connected therewith, for whichthey shall receive the same pay as is now paid for a day's work of a greater number of hours. If any letter-carrier is employed agreater number of hours per day than eight, he shall be paid extra for the same in proportion to thee salary now fixed by law.

Act of May 24, 1888, 25 Stat. L., 157.



13 Id.

14 Id.

5


were active in the eight hours a day movement. Despite this, pressure on Congress for an eight hour

law increased and in the House elections of 1886 many " advocates of an eight hour bill were elected or

re-elected to the Congress, " and many opponents of the Bill were defeated. The Bill was passed on

May 24, 1888. "10 However, this forward step still did not affect post office clerks, who continued to

work under conditions of near peonage. "11

Postal clerks had no vacation or days off. They were paid an average salary of $700 a year and

worked under filthy conditions. " A national survey taken in 1889 showed that 90% of the clerks

worked 365 days a year and that the average workday was fourteen hours. "12 Tuberculosis was so

prevalent among postal clerks that it was known as the "clerk's sickness ". 13

Railway postal clerks averaged about $997 a year in salary but they worked in extremely

unsafe conditions. The mail coaches were owned and maintained by the railroads who in turn used the

most decrepit rolling stock that they owned. They were usually placed right after the coal tender and as

a result they became demolished in even minor wrecks.14

In the four years that Wanamaker was Postmaster General,

mail trains were involved in 1,118 wrecks, in which 32 railway post

office clerks were killed outright, 264 permanently disabled and 289


15 Id. at 109-10.

16 Id. at 111.

17 Matthew J. Bowyer, They Carried the Mail, 107 (1972).

18 Id.

" Unionization was the cohesive force which assured the public that their postman would always be as described by Dr. CharlesW. Eliot, the 'messenger of sympathy and love, servant of parted friends, consoler of the lonely, bond of the scattered family,enlarger of the common life, carrier of news and knowledge, instrument of trade and industry, promoter of mutual acquaintance,

(continued...)

6


less seriously injured. Thus, about 11 per cent of the total work force

for an average year were killed, disabled, or injured in a period of four

years. A man starting in the service in 1889 had about a 1 to 9 chance

of surviving four years without injury.15

The Post Office fought the eight hour law for five years. Lawyers for the Post Office argued that

because there were seven days in a week, the eight hours a day work law meant that letter carriers had

to work 56 hours a week before they were paid overtime. If a letter carrier worked nine hours a day for

six days he would still owe the Post Office two hours for Sunday. The NALC sued the Post Office and

the case went all the way to the United States Supreme Court. In it's decision, Post v. U.S., 148 U.S.

124 (1893), the Court awarded a total of 3.5 million dollars to individual letter carriers based on the

thousands of claims outstanding. This was a landmark case and the prestige of the NALC was assured

by its support of this case.16 To take on a large employer, let alone the Federal Government and win a

court case like this was a tremendous accomplishment in 1893.

" Postal Unionization was inevitable. "17 The rank and file employee simply had no other

effective means to achieve any improvement in their condition. They could depend on the power of

united action in a union to open doors to them that would otherwise be closed. " The unions provided

an esprit de corps which management had neglected. "18


18(...continued)of peace, and good will among men and nations.' "

Id.


20 Id. at 111-13.


7


During a meeting of veterans of the Grand Army of the Republic in Milwaukee in 1889, a

Detroit letter carrier named William H. Wood organized the NALC Formed on August 30, 1889 by

100 mailmen, it now has over 240,000 members and over 6,000 branches. The growth of this

organization was greatly aided by the totalitarian management methods of the Post Office. Postmasters

in some cities gave known NALC members the worst routes and compelled them to work eight hours

on and off during the twenty-four hours of the day.19

As a result of this court case, the Post Office made working conditions even more intolerable.

Payment of the awards was delayed as long as possible and no overtime of any kind would be allowed.

Any postmaster who allowed overtime was fired and the notorious "spotter" system was inaugurated.

Letter carriers were followed by special agents or spotters (unqualified political appointees who had no

postal experience) who spied on their every move to make sure that they did not waste any time. The

civil service laws were bypassed with these procedures and by 1894 one third of the letter carriers in

Chicago, Cleveland and Philadelphia were up for dismissal.20

A carrier would be questioned about his movements on a day six months earlier and if he could

not precisely recall every move he made to defend himself against charges of malingering he was

dismissed. In March, 1896, because of an outcry by responsible newspapers, Congress refused to fund

the special agent program and it was ended.21


22 Cullinan, Supra, 117-18.

23 Executive Order No. 402 was issued by President Roosevelt on January 26,1906.

24 Developments in the Law-Public Employment[Part 1 of 2], Supra, 1630.

(continued...)

8


The opening of the Twentieth century and its' first two decades were among the most trying

time for postal employees. Republican Congressman Eugene F. Loud was the Chairman of the House

Post Office Committee and he was well known for his anti-labor views. He wanted to reduce postal

salaries instead of considering a pay rise bill. The lobbying by the postal unions caused concern among

the conservatives in the Federal Government because it was an election year. They complained to

President Theodore Roosevelt and on January 31, 1902 he issued the notorious "gag rule".22 This rule

ordered

All officers and employees of the United States of every

description, serving in or under any of the Executive Departments, and

whether so serving in or out of work, are hereby forbidden either

directly or indirectly, individually, or through associations, to solicit an

increase of pay or to influence or attempt to influence in their own any

other legislation whatever, either before Congress or its Committees, or

in any way save through the heads of the Departments in or under

which they serve, on penalty of dismissal from the Government

Service.23

President Roosevelt further intimidated postal employees by issuing Executive Order No. 362 in 1905.

This order authorized the " removal without hearing of government employees for inefficiency or

incapability, and summary dismissal for misconduct in presence of President or Department head ".24


24(...continued)Under Congressional pressure, President Taft restored the protections for civil service employees provided for in earlier statutes.Executive Order No. 1471 (1912).

25 Rosenblum & Steinbach, Federal Employee Labor Relations: From the "Gag Rule" to Executive Order 11491, 59 Ky. L.J. 833,836 (1971).

Executive Order No. 1142 was issued by President William Howard Taft on November 26,1909.

See also Gibson, The Supreme Court and Freedom of Expression From 1791 to 1917, LV Fordham L.Rev. 263 (1986)

26 At this time, United State Senators were selected by each individual state legislature and were held accountable by the statelegislatures for their activities. Direct election of U.S. Senators was not provided for until the passage of the SeventeenthAmendment.

XVII

Seventeenth Amendment

Election of Senators.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, forsix years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of themost numerous branch State legislature.

When vacancies happen in the representation of any State in the Senate, the executive authority of such state shall issuewrits of election to fill such vacancies: provided, That the legislature of any State may empower the executive thereof to maketemporary appointment until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be construed as to affect the election or term of any Senator chosen before it becomes validas part of the Constitution.

Ratified on May 31, 1913.

9


President Taft restricted federal and postal employee rights even further by prohibiting " federal

employees from even responding to congressional requests for information. "25

The idea of such presidential directives in todays society may seem ludicrous, but in the first

decade of this century these Executive Orders were taken very seriously. It did not matter that this rule

was basically unenforceable in terms of communication with the general public. How could you

monitor and control all employee communication with the public? However these orders had a chilling

effect on postal employees communications with the press and members of the state26 and federal


27 During the Taft Administration, Sen. Robert (sic) La Follete of Wisconsin charged that the post office had opened mail sentto him by disgruntled postal employees.

G. Cullinan, The Post Office Department 124 (1968) cited in Gibson, Supra.


29 Id.

30 Act of August 24, 1912 ch. 389, §6, 37 Stat. 539, 555 (1912) (codified as amended as 5 U.S.C. § 7513 (1982 ).

Lloyd-Lafollette Act Provided, however, That membership in any society, association, club or other form of organization of postal employees notaffiliated with any outside organization imposing an obligation or duty upon them to engage in any strike against the United States,having for its objects, among other things, improvements in the conditions of labor of its members, including hours of labor andcompensation therefor and leave of absence, by any person or groups of persons in said postal service, or the presenting by any suchperson or groups of persons of any grievance or grievances to the Congress or any member thereof shall not constitute or be causefor reduction in rank or compensation or removal of such person or groups of persons from said service.

10


legislatures.27

This order hung like a sword of Damocles over every postal employee. A postal clerk in

Houston, Texas was fired for showing a newspaperman a long dead rat he had found in the water

cooler. The Chicago leader of the letter carriers, Charles D. Duffy, and the head of the postal clerks

union, Oscar F. Nelson, smuggled members of the Illinois State Commission on Occupational Diseases

into the post office at night. They found that conditions were filthier than any private concern would

allow. Ventilation was nonexistent, and no cleaning or disinfecting was done. There was one drinking

cup for hundreds of employees and " toilet conditions were beyond description. The incidence of

consumption and typhoid among postal employees was therefore astronomical. "28 Postal officials did

not move to correct these violations when the story broke, they fired Nelson for violating the "gag rule".

Duffy escaped dismissal because his role did not become public until things calmed down.29 These

harsh regulations would remain in force until the passage of the Lloyd-Lafollette act on August 24,

1912.30

Additional legislation that was favorable to postal employees was also passed in 1912. The



32 Doherty, Supra, 70.

33 Id.

11


Reilly eight in ten hour Bill was passed. This Act provided for the eight hours of work within ten hours

rule, pro rata overtime, and compensatory time off. The closing of post offices on Sunday was

provided for with the passage of the Mann Sunday Closing Bill. The Mann Sunday closing Act

guaranteed that postal workers would no longer be forced to work seven days a week. This legislation

was the first improvement in working conditions for postal employees in twenty-four years.31

The democrats regained power in 1912 with Woodrow Wilson's election as President. His

Postmaster General, Albert Sidney Burleson is conceded to have done the most harm to the Post office

during his eight year " reign of terror. "32 His major contribution to postal labor relations was to destroy

any thought of mutual respect or mutual cooperation between postal employees and postal

management. However, he did achieve a tremendous strengthening of postal union ranks.

When Burleson took office, he immediately asked for the repeal of both the Lloyd-Lafollette

Act and the Reilly Act. He refused to recognize employee organizations and fired the Presidents of

both the Railway Mail Association and the Rural Carriers Association on the same day. The President

of the National Association of Letter Carriers was given a "Hobson's choice" of either resigning from

the Post Office or resigning from his Union position.

Burleson has been called the father of the Postal union. His toughness

and vindictiveness caused the unions to stiffen in their resistance to

autocratic power and eventually drove them head long into the

American Federation of Labor.(hereinafter AFL)33


34 Law Enforcement Arm of the Postal Service. It has jurisdiction over all violations of law relating to the U.S. Mail. In additionit is responsible for auditing all postal accounts. At one time, because of the power that it had over the mail system, the numberof postal inspectors was required to be evenly split between democrats and republicans.

35 Id. at 71.


37 Bowyer, Supra, 136.

12


The Postal Inspection Service34 had given Burleson's immediate predecessors, Hitchcock and

Cortelyou, a picture of the American Federation of Labor as " some kind of dangerous anti-american

secret society similar to the Klu Klux Klan. "35 In 1914 the letter carriers had voted 83% against

affiliation with the AFL. After four more years of Postmaster General Burleson, the vote in 1918 was

92% in favor of affiliation with the AFL.36 In Burleson's last year, 1920, Congress voted the Civil

Service Retirement Act which was something the NALC had campaigned for since their founding in

1889. This year also saw the start of a sick leave program.

Labor Relations improved with Burleson's departure and the appointment of Will Hays as

Postmaster General. He served only one year, but is still fondly remembered for his efforts to

humanize labor-management relations as opposed to the usual Post Office authoritarian style of

management. After Hays' departure, the Post Office reverted to form and throughout the twenties and

thirties, no improvements in postal employee conditions were made. Wages were cut during the

depression by using rotation, layoffs, and the service suffered during World War II due to war priorities

and labor shortages. the service along with employee morale continued to drop during the fifties and

sixties. " From the end of World War II until the Postal Revolution of '71, morale was low. "37


38 R. Reagan & R. Hubler, Where's the Rest of Me? 138 (1965).

39 Alan L. Sorkin, The Economics of the Postal System, 25-6 (1980).

40 " Although it is one of the Nation's largest employers, The Post Office has an unsatisfactory record of labor-managementrelations. Career prospects are bleak, working conditions are frequently primitive, and morale is unacceptably low. "

Staff of Senate Committee on Post Office and Civil Service, 94th Cong., 1st Sess., Explanation of the Postal Reorganization Actand Selected Background Material 195 (Comm. Print 1975).

13


DISCUSSION

" I ... continue to be a strong believer in the rights of unions, as well as in the rights ofindividuals. I think we have the right as free men to refuse to work for just grievances: thestrike is an unalienable weapon of any citizen. "38

It has been shown that postal labor management relations started out in a rigidly circumscribed

master-servant type relationship. The Post Office Department was dependent on Congress for its

funding and the postal employees were also at the mercy of Congress for any improvement in their

working conditions or salaries. The passage of the 1970 Postal Reorganization Act was supposed to

rectify these problems. It provided for the creation of an Independent Postal Corporation that could

retain and use its revenues as it saw fit.39

The Postal Service had one of the worst records of employee relations of any organization, whether

public or private. Instead of the United States Government being a model employer, it was one of the

worst in the country. The lack of an effective means to resolve the legitimate employee grievances led

to the strike in 1970.40 Other than the Air Traffic Controllers the Postal Service was the only United

States Government agency that suffered an effective nationwide strike. Because of the peculiarities of

mail sorting and delivery the President of the United States was not able to break the Postal strike of


41 The effectiveness of the postal strike may be gauged by the following excerpt.

The court issued an injunction enjoining the defendants from striking against the United States Post Office Department and frominterfering with the orderly operations of the Postal Service, in United States v Branch 60, National Asso. of Letter Carriers, 312F Supp 619 ( D.C. Conn 1970). The court noted that the defendant unions, their officers, and their members had struck against theUnited States Post Office Department and had withheld their services from the Postal Service in a strike which was almost 100percent effective in stopping the delivering and processing of mail within a major portion of the district over which the court heldjurisdiction. Uncontroverted evidence established that the cessation of the flow of mail within the district included, inter alia,federal and state income tax returns and refunds, medical supplies needed to meet emergency demands, correspondence betweenthe United States and its citizens with military units and personnel stationed abroad, and other items necessary to the day-to-dayfunctioning of government and of persons in all walks of life. The court said that since the defendants were engaged in an unlawfulstrike against the United States Government under 5 USCS § 7311(3) and (4) and 18 USCS § 1918, and the strike would causeimmediate and irreparable injury to the United States and its citizens, the issuance of an injunction ending the strike was proper.

Annotation, Validity, Construction, and Application of Provisions of 5 U.S.C. § 7311(3) and (4) Prohibiting Federal Employeesfrom Striking, Asserting Right to Strike, or being Member of Organization known to assert right to Strike against Government, 23A.L.R. Fed. 691, § 7 (1991).

42 From the start, these airline unions, all outside the Federal service, have held the key to meaningful labor support for the aircontrollers in their attempt to force a moderation of the Reagan stand. When the A.F.L.-C.I.O. executive council met in Chicagoon the strike's first day, it was clear to everyone that a refusal by the pilots or other unionized groups to cross the picket lines atmajor airports could ground all planes and intensify pressure on the White House to back down.

But, quite apart from the heavy fines and probable lawsuits such an expression of solidarity might have entailed for theairline unions, there was strong evidence that rank-and-file enthusiasm for backing up the strikers was almost zero, a reflection ofthe regularity with which the air controllers have refused support for the airline unions in past strikes.

Raskin, The Air Strike is Ominous for Labor, N. Y. Times, August 16, 1981, at § 3, 1, col. 2.

43 More particularly, why should strikes by air controllers who happen to work for the government, be a criminal offense whileequally disruptive strikes by airline pilots, who work for privately owned companies, are protected by law?

(continued...)

14


1970.41 The Air Traffic Controllers strike of 1980 was broken because the President was able to utilize

sufficient management and craft personnel (who did not strike) along with Military Air Traffic

Controllers. The controllers became a dead issue when the Airline Pilots Association refused to honor

their picket lines.42

All Federal employees are prohibited from striking the Government. The Air Traffic

Controllers during their short and stormy history had a reputation for engaging in "wildcat strikes" ,

rulebook slowdowns and mass sickouts. They had a record of not cooperating when other unions in the

private sector part of the airline industry were engaged in a strike. It is a mere accident of history that

the controllers are employed by the Federal Government.43 The difference in the outcome of the


43(...continued)Meltzer & Sunstein, Public Employee Strikes, Executive Discretion, and the Air Traffic Controllers, 50 U. Chi. L. Rev. 731,734(1983).

44 The contrast was distinct with the handling by Richard M. Nixon in 1970 of the biggest Federal strike in the nation's history -the wildcat walkout of 175,000 postal employees. President Nixon started out in the same uncompromising manner as PresidentReagan. He assigned troops to replace the striking mailmen in New York City, storm center of the rebellion, and vowed that therewould be no negotiations until the strikers went back to work.

The unionists hooted down recommendations by their leaders that they call off their walkout, but the President held offimmediate invocation of the law that made them all subject to dismissal and prosecution as felons.

the delay in 1970 was the result of behind-the-scenes talks between George Meany, Mr. Kirkland's predecessor as A.F.L.-C.I.O. president, and George P. Shultz, then Mr. Nixon's Secretary of Labor. Out of these came an understanding that the twoleaders would negotiate on higher wages and the terms of a quasi-governmental reorganization of the Postal Service once all therebels went back to work. That ended the insurrection.

Raskin, Supra.

45 Id. at 195.

46 " Labor -management relations would, in general, be subject to the National Labor Relations Act, as amended, and itsprovisions would be enforceable by the National Labor Relations Board and the Federal courts. Unfair labor practice charges wouldbe handled just as they are in the private sector. "

Id. at 203.

47 " Although contemporary labor relations in the private sector of the national economy have not been free of problems, theyadd up to a triumphant success as compared with those in the Postal Service. "

Id. at 203.

15


PATCO strike of 1981 and the postal strike of 1970 is striking.44

In the words of the Report of the Senate Committee on the Post Office; " Postal employee-

management relations are in a sad state of disrepair and must be modernized to fit today's needs. "45 It

was with this spirit that the Congress adopted the Postal Reorganization Act. It was felt that the only

way to remedy these labor management problems was to utilize an independent agency for resolution

of employee grievances.46 The National Labor Relations Act (hereinafter NLRA) and the National

Labor Relations Board (hereinafter NLRB) were already in place and had demonstrated their expertise

in these matters.47

The adoption of the Postal Reorganization Act gave Postal employees a statutory right to


48NATIONAL LABOR RELATIONS ACT, § 7 (29 U.S.C. §157)

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectivelythrough representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargainingor other mutual aid or protection, and shall also have the right to refrain from any or all such activities except to the extent that suchright may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorizedin §8(a)(3) [§ 158(a)(3) of this title].

49 Nevertheless, deep-seated adversary relationships, ill-trained and adversarial supervisors and employees, and neglect ofday-by-day flexible accommodation between them will, of course, not be remedied solely by changes in the legal framework. Thus,serious problems persist in the Postal Service despite the expansion of mandatory bargaining for postal employees, the newprocedures for impasse resolution, and the other changes provided in 1970 by the Postal Reorganization Act, Pub. L. No. 91-375,84 Stat. 719 (codified as amended at 39 U.S.C. @@ 101-5605 (1976 & Supp. V 1981)).

Meltzer & Sunstein, Supra.

50 " Rank and file postal employees would, for the first time, have a statutory right to organize collectively and to bargaincollectively with management on all of those matters--including wages and hours--which their neighbors in private industry havelong been able to bargain for. "

Senate Committee Report, Supra, at 203-04.

51 " The right to strike, of course, is a very important element of labor relations in the private sector. In the Federal service,however, strikes have long been prohibited by law. As events of the past several weeks have amply demonstrated, The PostalService is too important to the people and the economy of this nation for us to tolerate postal strikes. Under H.R. 17070, the existingban on strikes by Federal employees would be continued without change. "

Id. at 204.

52 " Collective bargaining in public employment involves factors that differ importantly from those traditionally found in theprivate sector. In the private sector, a strike involves an economic contest pitting the stockholders' capacity to forgo profits againstlabor's capacity to forgo wages. A strike may impair the ability of the enterprise to compete successfully in the market. In the publicsector, the stakes are quite different: A strike would not merely threaten the income of a public enterprise and cause loss of wagesto workers, it would also directly imperil the public welfare. "

(continued...)

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organize, one that had long been given to private employees by the NLRA.48 The Postal Service is the

only federal agency whose employees are protected by the National Labor Relations Board. No longer

do the postal employee unions have to lobby Congress for improved wages or benefits. They can

negotiate directly with their employer.49 This is a major benefit for a federal employee labor

organization that other federal labor unions would dearly love to have. Postal employees would enjoy

all the rights generally given to employees in the private sector with one important exception.50

They would under no circumstances be permitted to strike.51 The Senate Committee report

went on in great detail about the perils of public employee strikes.52 In particular they mentioned the


52(...continued)Id.

53 " The extent to which the public welfare might be so imperiled has been vividly brought home to all by the events of lastMarch. "

Id.

54 " On March 18, (sic) 1971, as a result of substantial inequities in postal pay and fringe benefits, a major postal strike brokeout in many major cities, spearheaded by the National Association of Letter Carriers, an AFL-CIO union, and the National PostalUnion, an unaffiliated union. The strike lasted until March 25. Negotiations began immediately toward a solution of the underlyinggrievances of the postal employees. A settlement was announced on April 2 which included a promise by the unions that they wouldsupport a postal reorganization bill in return for the receipt of an immediate six percent pay raise for all Federal workers (includingpostal employees) effective retroactively to December 27, 1969, and an additional eight percent postal pay raise to be awarded onthe enactment of reform legislation. "

Rosenblum, Supra, 867.

55 5 U.S.C. § 7311(3)

prohibits an individual from accepting or holding a position in the federal government or in the District of Columbia if he

"(3) participates in a strike . . . against the Government of the United States or the government of the District of Columbia . . ."

5618 U.S.C. § 1918(3), in making a violation of 5 U.S.C. § 7311 a crime, provides: "Whoever violates the provision of section 7311 of title 5 that an individual may not accept or hold a position in the Governmentof the United States or the government of the District of Columbia if he . . . "(3) participates in a strike, or asserts the right to strike, against the Government of the United States or the District of Columbia. . . "shall be fined not more than $1,000 or imprisoned not more than one year and a day, or both."

17


impact the March 1970 Postal strike had upon the country.53 The Postal workers had engendered much

sympathy from the general public about their grievances with the Post Office and Congress. Unlike the

Air Traffic Controllers the Postal workers were not perceived as overpaid and"prima donna"

employees. Almost every American was familiar with and could identify with their "mailman". 54

The seminal case which interprets the right of Federal employees to go on strike is United

Fed'n of Postal Clerks v. Blount, 325 F. Supp 879 (D.D.C. 1971), affd 404 U.S. 802 (1971) . This

case was about the efforts of the United Federation of Postal Clerks (hereinafter Clerks) to get "

declaratory and injunctive relief invalidating portions of 5 U.S.C. § 7311,55 18 U.S.C. § 1918,56 an


57 5 U.S.C. § 3333(C), which all federal employees are required to execute under oath, states (POD Form 61). "I am not participating in any strike against the Government of the United States or any agency thereof, and I will not so participatewhile an employee of the Government of the United States or any agency thereof."

58 Executive Order No. 11491 exempts from the definition of a labor organization any group which: §2(e)(2) "asserts the right to strike against the Government of the United States or any agency thereof, or to assist or participate in suchstrike, or imposes a duty or obligation to conduct, assist or participate in such a strike . . ." §19(b)(4) of the same Executive Order makes it an unfair labor practice for a labor organization to: "call or engage in a strike, work stoppage, or slowdown; picket any agency in a labor-management dispute; or condone any suchactivity by failing to take affirmative action to prevent or stop it; . . ."

59 United Fed'n of Postal Clerks v. Blount, 325 F. Supp 879, 880 (D.D.C. 1971).

60 First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging thefreedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redressof grievances.

61 Fifth Amendment

No Person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,except in cases arising in the land or naval forces, or in the militia, when in actual service in time of War or public danger; nor shallany person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal caseto be a witness against himself, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life,liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

62 For the purposes of this opinion, we will direct our attention to the attack on the constitutionality of 5 U.S.C. § 7311(3), thekey provision being challenged. To the extent that the present wording of 18 U.S.C. §1918(3) and Executive Order 11491 does

(continued...)

18


affidavit required by 5 U.S.C. §333357 to implement the above statutes, and Executive Order 11491,58

C.F.R., Chap. II, p. 191. "59 The Clerks claimed that the right to strike is fundamental.

They further claimed that the language of the above statutes restricted "the employees' First

Amendment rights of association and free speech and operates to deny them equal protection of the

law. Plaintiff also argues that the language to 'strike' and 'participates in a strike' is vague and

overbroad and therefore violative of both the First Amendment60 and the due process clause of the Fifth

Amendment. "61 The court held that any language in 18 U.S.C. §1918(3) and Executive Order 11491

that was overbroad and forbid the "assertion of the right to strike" was invalid.62


62(...continued)not reflect the actions of two statutory courts in Stewart v. Washington, 301 F. Supp. 610 (D.D.C. 1969), and N.A.L.C. v. Blount,305 F. Supp. 546 (D.D.C. 1969), said wording, insofar as it inhibits the assertion of the right to strike, is overbroad because itattempts to reach activities protected by the First Amendment and is therefore invalid.With this caveat , our treatment of the issueraised by plaintiffs with respect to the constitutionality of 5 U.S.C. 7311(3) will also apply to 18 U.S.C. @ 1918, the penalprovision, and to Form 61, the affidavit required by 5 U.S.C. § 3333.

United Fed'n of Postal Clerks v. Blount, 325 F. Supp 879,881 (D.D.C. 1971).

63 Id. at 882.

64 In Hitchman Coal & Coke v. Mitchell, 245 U.S. 229, (1917), the U.S. Supreme Court's majority opinion wentas far to say thatonce employees had signed "yellow dog" contracts (employee agrees not to join a union) it became an illegal conspiracy that violateda company's right to benefit from its contracts. This also meant that the workers could not even talk among themselves about joininga union.

65 Railway Mail Ass'n v. Murphy, 44 N.Y.S.2d601, 607 (Sup. Ct. 1943).

19


The court ruled against the Clerks and granted the Postmaster General's motion to dismiss.

Based on the fact that there was no statutory scheme for Federal employees as there were for private

sector employees the court said that there is no constitutional right to strike by public employees. " " At

common law no employee, whether public or private had a constitutional right to strike in concert with

his fellow workers. "63 Private employees were able to strike now because they had statutory

protection. No longer could it be alleged that a combination of employees was a conspiracy.64

Nothing is more dangerous to public welfare than to admit that hired

servants of the state can dictate to the government the hours, the wages

and conditions under which they will carry on essential services vital to

the welfare, safety and security of the citizen.65

The above quote represents the general feeling that the government and the general public had

about the right of public employees to organize and bargain collectively in the not so distant past.

At around the same time the U. S. Supreme Court held in NLRB v. Jones & Laughlin, 301 U.S. 1, 33

(1937)


20


CONCLUSION

The inclusion of the Postal Service into the NLRA while not a perfect solution to labor

management problems demonstrates that a no strike provision together with binding arbitration is a

workable solution to public employee labor relation problems.

table of authorities historical background...

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