766 F.2d 715 (2nd Cir. 1985), 963, American Postal Workers Union, AFL-CIO v. United States Postal Service
|Docket Nº:||963, Docket 84-6329.|
|Citation:||766 F.2d 715|
|Party Name:||AMERICAN POSTAL WORKERS UNION, AFL-CIO, New London Connecticut Area Local, Connecticut State Postal Workers Union, APWU, AFL-CIO, and Philip N. Danko, Plaintiffs-Appellees, v. UNITED STATES POSTAL SERVICE, Defendant-Appellant.|
|Case Date:||July 03, 1985|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued April 9, 1985.
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Robert A. Cantore, New York City (Robert B. Stulberg, Vladeck, Waldman, Elias & Engelhard, P.C., New York City, of counsel), for plaintiffs-appellees.
Harold Krent, Civ. Div., Dept. of Justice, Washington, D.C. (Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Alan H. Nevas, U.S. Atty., New Haven, Conn., Mark H. Gallant, Sr. Appellate Counsel, Civ. Div., Dept. of Justice, Washington, D.C., Louis A. Cox, Gen. Counsel, Steven E. Alpern, Associate Gen. Counsel, Howard J. Kaufman, Sr. Atty. U.S. Postal Service, Washington, D.C., of counsel), for defendant-appellant.
Before KEARSE, PIERCE and PRATT, Circuit Judges.
PIERCE, Circuit Judge.
The United States Postal Service (Postal Service) appeals from an order of the United States District Court for the District of Connecticut (M. Joseph Blumenfeld, Judge), dated October 18, 1984, preliminarily enjoining the Postal Service from discharging appellee Philip N. Danko while he and his union challenge the discharge through the grievance and arbitration procedures of a collective bargaining agreement. The Postal Service alleges that the district court lacked jurisdiction to issue the preliminary injunction, and also that, even if it had jurisdiction, it abused its discretion in exercising it. In particular, the Postal Service contends that the injunction was improperly issued because it was not in aid of arbitration, and also because appellees have failed to demonstrate the existence of irreparable harm. Appellees contend that the district court did have jurisdiction to issue the preliminary injunction, that the preliminary injunction was in aid of arbitration, and also that the discharge in question would have a chilling effect on their first amendment rights, thereby providing the requisite irreparable injury for injunctive relief.
We hold that the district court did have jurisdiction to issue the preliminary injunction. We conclude, however, that the injunction herein was not in aid of arbitration, and also that the discharge in question, pending resolution of the grievance
and arbitration process, does not create a chilling effect on appellees' first amendment rights. We therefore hold that appellees have failed to demonstrate the existence of conditions which are necessary for the issuance of a preliminary injunction in an employment dispute subject to arbitration.
In the Spring of 1984, the United States Postal Service decided to "excess," i.e. eliminate, fourteen employees at the New London Post Office and transfer a number of those employees to other offices in Connecticut. The New London Connecticut Area Local (Local) of the American Postal Workers Union, AFL-CIO (APWU), claimed that the excessing violated the collective bargaining agreement between the Postal Service and APWU and also that it resulted in delays in the mail. The Local publicized this claim in three ways: 1) by writing to elected officials; 2) by contacting local newspapers; and 3) by sending a letter, dated May 27, 1984, and signed by Danko, as president of the union, to Mystic Color Lab (Mystic), a mail order film processing company and one of the largest customers of the New London Post Office. The letter informed Mystic that, as a result of the elimination of the fourteen positions, its mail was being delayed.
The letter to Mystic stated in pertinent part:
The purpose of this letter is to make you aware of the fact that large amounts of your film mailers are not being processed for outgoing dispatch or incoming delivery. This situation has been going on for some time now. Postal management will not make you aware of this, in fact, they would most likely deny it if questioned about it.
Danko purported to "see first hand the amount of [Mystic's] mail that is delayed, on a nightly basis," and then went on to suggest that the delays were connected with the excessing of positions at the New London Post Office.
Following an investigation by a postal inspector, the Postal Service concluded that the letter to Mystic, although not the press interviews or the letters to elected officials, constituted "conduct prejudicial to the interest of the Postal Service," in violation of sections 661.12 and 661.3 of the Ethical Code of the Employee Labor Relations Manual, which subjects employees to disciplinary action, including discharge, for actions which adversely affect the public confidence in the integrity of the Postal Service.
On June 25, 1984, the Postal Service served Danko with a 30-day advance notice of proposed removal. The notice informed Danko that he had "recklessly and knowingly" conveyed "untrue" and "inaccurate" information "to a major customer with the intent of generating hostility towards [his] employer and damaging the image of an efficient Postal Service." Although the Postal Service contends that the correspondence with the press and elected officials also contained false accusations, the proposed removal was based exclusively on Danko's letter to Mystic. The notice further informed Danko that he could contest the proposed dismissal under the grievance and arbitration procedure set forth in the collective bargaining agreement.
Danko responded in person to the charges on July 2, 1984, contending, inter alia, that he had the right to send the letter in question to Mystic because of his status as president of the local union. The Postal Service rejected all of Danko's alleged defenses. In particular, the Postal Service stated that "[t]he fact that [Danko is] a union officer does not cloak [him] with blanket immunity against appropriate action against impermissible misconduct."
On July 9, 1984, a notice of removal was issued informing Danko that the charges had been sustained and that he would be removed from service effective July 26, 1984. The notice further stated that, as a "preference eligible" employee, i.e., a veteran, Danko had the option of challenging the removal either through the grievance and arbitration process or by appeal to the
Merit Systems Protection Board (MSPB). See 39 U.S.C. Sec. 1005(a)(2); 5 U.S.C. Sec. 2108. The notice of removal indicated that Danko's status during the pendency of any appeal from the discharge would be that of an employee "on the rolls, but in a nonpay, nonduty status," as specified in article 16.5 of the collective bargaining agreement. Article 16.5 states in pertinent part that, following a 30-day notice period, an employee discharged for cause "shall remain on the rolls (non-pay status) until disposition of the case." Article 16.1 confirms that...
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