AMERICAN POSTAL WKRS. UNION v. US Postal Service, Civ. A. No. 84-909.

• Decision Date: 08 November 1984
• Docket Number: Civ. A. No. 84-909.
• Citation: 598 F. Supp. 564
• Parties: AMERICAN POSTAL WORKERS UNION, AFL-CIO, et al., Plaintiffs, v. UNITED STATES POSTAL SERVICE, Defendant.
• Court: U.S. District Court — District of Columbia

598 F. Supp. 564

AMERICAN POSTAL WORKERS UNION, AFL-CIO, et al., Plaintiffs, v. UNITED STATES POSTAL SERVICE, Defendant.

Civ. A. No. 84-909.

United States District Court, District of Columbia.

November 8, 1984.

Darryl J. Anderson, Anton Hajjar, Washington, D.C., for plaintiffs.

Mitchell R. Berger, Asst. U.S. Atty., Washington, D.C., for defendant.

MEMORANDUM

GESELL, District Judge.

This action was brought by a discharged postal worker, Joseph Gordon, and his union seeking reinstatement, back pay and other relief on grounds that the discharge violated the contract between the union and the Postal Service and also violated the First Amendment rights of Gordon and his union. The case is before the Court on defendant's second motion for summary judgment and plaintiff's cross-motion for partial summary judgment, which have been fully briefed by the parties.

In disposing of defendant's first motion for summary judgment, the Court granted judgment for the defendant on plaintiffs' claim of a contract violation but denied summary judgment on plaintiffs' constitutional claim, stating it appeared to the Court "that a number of material facts remain in dispute, including (i) whether the firing was based on speech or on underlying conduct described in the speech, (ii) whether the government was actually harmed by the speech, and (iii) whether plaintiff Gordon knew or should have known that the speech would harm the government."¹ (Order of September 7, 1984 at 1-2.) Defendant then proposed to assume for the purposes of summary judgment that the discharge was based on speech, not the underlying conduct, and accordingly to seek summary judgment on the remaining issues, identified as (ii) and (iii) above. It was understood that if defendant lost again on summary judgment, and if plaintiff won its own summary judgment motion on those issues, the only remaining issue would be whether Gordon's speech was a substantial or motivating factor in the discharge decision. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). Plaintiffs agreed to this procedure, and subsequently filed a cross-motion for partial summary judgment. Thus these motions focus on whether Gordon's speech was protected by the First Amendment,² and if so, whether his employer's interests outweigh his right to free expression because of the harmful effects of his speech.

I. The Background

Joseph V. Gordon was an employee of the Postal Service for 11½ years in Royal Oak, Mich., until he was fired on July 7, 1982. While an employee, he received several commendations and monetary awards from the Postal Service, including an award for heroism in 1981 for putting out a dangerous fire that resulted from a collision between a car and a mail truck. Gordon was a steward in Area Local 480-481 of his union and was editor of the local's newspaper, The 480-481 Communicator, for which he wrote a regular column.

His column in the May 1983 issue was entitled "Workers of the World Unite ...." The column's theme was the need to persuade non-members to join the union by "tactful intelligent" efforts rather than by "strong arm" tactics. After suggesting various benefits of joining the union that could be brought up in conversation with non-members, the column stated:

I was motivated to write this article at this time by a recent discovery that I made at work. While working third class letters a few weeks ago I came across a bundle of letters that were being sent from Congressman Phillip Crane, a Republican from Illinois, the return address simply stated: Congressman Phillip Crane, National Right to Work Committee. Well, naturally I was curious just what the Congressman was trying to communicate under such a dubious association with the right to work committee. My curiosity did not have long to wait because one of the letters was not sealed and the contents fell out as I was sorting the mail. I could not help but seeing just what was inside. I was amazed to find that the Congressman was sending out petitions asking for help in an attempt to organize a legislative effort to support a bill that would restrict Labor Unions from organizing workers through what he called strong arm tactics.

The column went on to conclude that "it has been painfully evident that we have many enemies in Congress and we can ill afford to have them attempt to organize efforts to further reduce our ability to improve our working conditions.... Ask your stewards who the non-members are in your office and make a tactful intelligent effort to sign them up, but don't use `strongarm' tactics, it might upset Phillip Crane."

The newspaper has a circulation of about 2,100. It is sent to members and retired members of Local 480-481 and to the offices of other postal union locals.

After the column came to the attention of Postal Service officials, Gordon was questioned by supervisor Charlene Bonds, on the night of May 26, 1983 after he arrived for the shift starting at midnight. She told him that he had violated two Postal Service regulations by reading the piece of mail and disclosing its contents, and that he could be discharged. He told her that he had made up the story about reading the mail on the job as a "dramatization." He also said he did not know that reading third-class mail meant for publicity was a violation, although he did know that reading personal mail was a violation. She asked him to make a written statement, which he did before returning to his work station. In the statement, he said in part

I was made aware of the Crane petition by a friend who was asked to sign it. He later in turn asked me about a right of Congressmen to use the privilege of the free mail to distribute such material. I didn't think it was right for postal workers to have to handle such mail and fabricated the story about finding the "Crane" mail myself. I did not see, personally, the petition but I believe it existed. The irony that I was trying to stress as a representative of the labor movement and especially the American Postal Workers Union, is that there are rich people in this country that want to get richer off the labor force.

Immediately after he got off work that shift, Gordon wrote a retraction that was published in the next month's issue of The 480-481 Communicator.³ The retraction referred to the described incident as "a fabrication for dramatization" and added, "I attempted to show the irony of the labor force (APWU) handling mail such as this, it was a mistake. It is illegal to disclose the contents of mail even if the mail is meant for further distribution."

The day after his meeting with the supervisor, the Postal Service informed Gordon by a "Notice of Removal" that he was to be removed from the Postal Service on July 7, 1983. The notice described his May 1983 column and said:

You have violated Part 115 of the Domestic Mail Manual, specifically Parts 115.2 and 115.5 which prohibits the reading, divulging, or disclosing of the contents of mail. Such reading and publication of the contents is also considered unacceptable and a violation of Part 661.53⁴ of the Employee and Labor Relations Manual.

Gordon and his local union grieved the dismissal. The final decision on the grievance stated that Gordon's "action in the instant grievance violated the integrity of the mail service and part 115.5 of the DMM. Accordingly, just cause was established and this grievance is denied."

Article 16 of the collective bargaining agreement between the union and the Postal Service provides in pertinent part:

No employee may be disciplined or discharged except for just cause such as, but not limited to, insubordination, pilferage, intoxication (drugs or alcohol), incompetence, failure to perform work as requested, violation of the terms of this Agreement, or failure to observe safety rules and regulations.

The union sought arbitration of the grievance. A hearing was held on October 12, 1983. The arbitrator upheld the firing by an opinion dated December 23, 1983. The opinion did not decide the factual dispute about whether Gordon had read and disclosed the contents of mail that he saw on the job, but said that true or not, the column had the effect of eroding public confidence in the sanctity of the mails. The collective bargaining agreement between the union and the Postal Service provides that "all decisions of an arbitrator will be final and binding."

This action was filed on March 22, 1984. Count One was the contract claim alleging that the discharge of Gordon "was not for `just cause,' and was in violation of the collective bargaining agreement," and that the arbitrator's decision was "contrary to law and fact, beyond his authority, and not based on the collective bargaining agreement." As previously noted, on September 7, 1984, the Court dismissed the contract claim, stating that "the arbitration award was sufficiently based on the arbitrator's understanding of the contract that the award did not step beyond the arbitrator's authority. See United Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 598 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960)." (Order of September 7, 1984 at 1.)

Count Two alleged that the discharge violated the rights to free speech and free press of Gordon, the union, the union's members and postal workers in general.⁵

II. The Constitutional Claim

Because an arbitrator's authority derives solely from the contract and his expertise is confined to interpreting that contract, an arbitration decision against an employee does not bar an employee from bringing a separate judicial action alleging violation of statutory or constitutional rights arising from the same facts that brought about the contract dispute. Alexander v. Gardner-Denver Co., 415 U.S. 36, 56-60, 94 S.Ct. 1011, 1023-1025, 39 L.Ed.2d 147 (1974). See also Barrentine v. Arkansas-Best Freight System, 450 U.S. 728, 745-46, 101 S.Ct. 1437, 1447-48, 67 L.Ed.2d 641 (1981)....