American Postal Workers Union v. US Postal Serv.

• Decision Date: 07 October 1987
• Docket Number: No. C-2-83-0195.,C-2-83-0195.
• Citation: 671 F. Supp. 497
• Parties: AMERICAN POSTAL WORKERS UNION, AFL-CIO, et al., Plaintiffs, v. UNITED STATES POSTAL SERVICE, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

671 F. Supp. 497

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

No. C-2-83-0195.

United States District Court, S.D. Ohio, E.D.

October 7, 1987.

Leonard S. Sigall, Reynoldsburg, Ohio, for plaintiffs.

Arnold S. White, Columbus, Ohio, for plaintiff Gloria Phillips.

Kevin B. Rachel, Sr. Atty., Office of Labor Law, Washington, D.C., D. Michael Crites, U.S. Atty., Albert R. Ritcher, Asst. U.S. Atty., Columbus, Ohio, for defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION

GRAHAM, District Judge.

FINDINGS OF FACT

1. This action is brought by the Columbus Area Local of the American Postal Workers Union (APWU) AFL-CIO, and certain of its officials, representing a class of employees at the Columbus Post Office who use lockers at that facility. The defendants are the United States Postal Service; Postmaster General, Preston R. Tish; Columbus Director of Mail Processing, Don Peterson; and Postal Inspector, Thomas Brulport. Plaintiffs claim that the defendants violated the Fourth Amendment rights of postal service employees by conducting a search of lockers at the Columbus Post Office. Previous rulings of the court have limited plaintiffs' claims to injunctive and declaratory relief.

2. During 1982, local postal management and the Postal Inspection Service received information which indicated that postal employees at the Columbus Post Office were selling and using drugs at the main post office facility. In October of 1982, the maintenance department discovered marijuana in the telephone compartment of an elevator. In the same month, an anonymous report came to the Inspection Service that cocaine was being used by postal employees during work hours. Postal managers reported that employees were complaining that they had been approached and asked if they were interested in purchasing drugs. The postal medical examiner reported that he had examined employees who appeared to be under the influence of intoxicants. During November, 1982, information was provided to inspectors that indicated that weapons were being carried by employees. Several bullets were found on the workroom floor. The absenteeism rate, number of assaults and error rates on mechanical equipment all increased during this period of time. APWU Local President, Krystal Cooper, had concluded that there was a drug abuse and drug trafficking problem and was concerned for the safety of the employees. Mr. Cooper provided postal management and the Inspection Service with the names of fourteen workers who were suspected of either using or dealing in controlled substances. Mr. Cooper urged management to take action to solve this problem and specifically suggested a locker search. One of the employees whose name appeared on the list supplied by Mr. Cooper was subsequently arrested by the Columbus Police Department for distribution of a controlled substance.

3. David W. Madden, inspector in charge of the Cincinnati Division of the Postal Inspection Service, concluded that a locker search should be conducted at the Columbus Post Office and assigned this responsibility to Inspector Thomas Brulport. The search was scheduled for January 15, 1983 beginning at 1:00 a.m. This time was selected because it was believed that the problem of drug use and drug trafficking was greatest on Tour 1, the 10:00 p.m. to 8:00 a.m. shift.

4. All employees who choose to have a locker are required to submit a completed and signed Postal Service Form 4943. The current version of this form, which was issued in 1973, includes the following notice, prominently displayed:

NOTICE

IN THE ASSIGNMENT OF THIS LOCKER THE UNDERSIGNED UNDERSTAND THAT:

1. The use by other than the person listed, or exchanging with another employee without authority of the issuing office, is prohibited.

2. Locker must be clean and presentable and is only for official use. A personal lock is not permitted.

3. Disciplinary action may be taken for noncompliance.

4. Locker is subject to inspection at any time by authorized personnel. (Part 643 PSM)

5. Upon separation or transfer, the locker key must be returned, or final check may be withheld.

Prior to 1973, the form did not contain an explicit warning that lockers were subject to search. Employees who were assigned their current lockers before 1973 would have completed the earlier version of the form. All of the named plaintiffs signed the 1973 version of the form. There was no evidence as to just how many employees were assigned their current lockers before 1973 or how many of them, if any, were included in the search.

5. The postal service, the national APWU and the National Association of Letter Carriers, AFL-CIO, have been parties to successive collective bargaining agreements since the early 1970's. The agreement in effect at the time of the search was the national agreement for 1981-1984. This agreement covers approximately 90% of the employees at the Columbus Post Office, including all of the named plaintiffs herein. Another collective bargaining agreement covers employees known as mail handlers. All of these collective bargaining agreements contain provisions relating to locker inspections which are substantially identical and which provide as follows:

Inspection of Lockers

The Employer agrees that, except in matters where there is reasonable cause to suspect criminal activity, a steward or the employee should be given the opportunity to be present at any inspection of employees' lockers. For a general inspection where employees have had prior notification of at least a week, the above is not applicable.

6. Section 774.12 of the Postal Services Administrative Support Manual (ASM) provides as follows:

.12 Examinations and Inspections.

All USPS-owned or furnished property under the custody or control of the Postal Service, including that individually assigned to postal personnel, is for official use only. This property, and its contents, are at all times subject to examination and inspection by duly authorized postal officials in the discharge of their official duties. The Chief Postal Inspector, officers and heads of installations, and their designated representatives, are authorized to examine and inspect, as their duties may require, such USPS-owned or furnished property and its contents.

7. Prior to January 15, 1983, there had never been a large scale search of employee lockers at the Columbus Post Office. The lockers provided to the employees contained built-in locks and the postal service retained a duplicate key to each locker. The lockers are designed so that an individual lock can also be used. Notwithstanding the prohibition contained in the current version of Form 4943, a small number of employees have installed individual locks on their lockers. Sixteen hundred and forty-seven lockers were searched and approximately six were fitted with individual locks.

8. Many employees keep personal items in their lockers, including purses, lunch boxes, brief cases, clothing, papers, photographs, medications, and personal hygiene products. Most employees keep their lockers locked.

9. Prior to January 15, 1983, the procedure used in opening a locker without an employee's consent was to post a written notice to clear out the locker indicating that it would be opened on a specific date if the user has not responded to the tour office by that date.

10. On the morning of January 15, 1983, Inspector Brulport assembled a team of postal inspectors to conduct the search. Keys to the lockers were furnished by postal management and distributed to the search teams. Brulport informed the inspectors that the purpose of the search was to locate illegal drugs, particularly marijuana, cocaine, and heroin, as well as weapons, alcoholic beverages, stolen mail, postal property and other contraband. Brulport further instructed the inspectors that closed containers such as purses and briefcases should not be searched. Brulport made arrangements with the Columbus Police Department for the assistance of a drug detecting dog and its handler. Arrangements were made for five union stewards to accompany each of the five search teams while the lockers were being searched.

11. The locker search began at approximately 1:00 a.m. and continued until approximately 6:00 a.m. When personal locks were encountered, they were cut or broken by postal maintenance employees. It was originally planned to search all employee lockers, which number over 2,000; however, the inspectors ran out of time and ended the search after 1,647 lockers had been opened. The drug detecting dog tired after sniffing approximately one-third of the lockers and he was removed from the building. Before leaving, the dog did alert on four lockers and these were sealed until search warrants were obtained from a United States Magistrate. When these lockers were subsequently opened, no drugs were found.

12. The locker searches were witnessed by union stewards. The inspectors did not open closed containers found inside the lockers. They did move the contents of lockers in order to look behind and under objects and they did "pat down" clothing but did not search pockets. Several items were seized during the course of the search including approximately 582 pieces of mail found in the locker assigned to Gloria Phillips. Three bottles of liquor were taken from three separate lockers. A file box containing records of a gambling enterprise was recovered from one locker, and postal property used in postal training courses was removed from another. Five vials of pills were removed from five separate lockers. The seizure of prescription medications was contrary to Inspector Brulport's instructions. Four of the five pill containers were turned in by one of the five search teams. The court concludes that either these individuals misunderstood Inspector Brulport's instructions or they had some specific reason for considering these particular pill...