American Postal Workers Union, AFL-CIO v. U.S. Postal Service, AFL-CIO

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation830 F.2d 294
Docket NumberA,85-5653,AFL-CI,AFL-CIO,Nos. 85-5632,s. 85-5632
Parties126 L.R.R.M. (BNA) 2506, 265 U.S.App.D.C. 146, 56 USLW 2216, 2 Indiv.Empl.Rts.Cas. 978 AMERICAN POSTAL WORKERS UNION,, et al., v. UNITED STATES POSTAL SERVICE, Appellant. AMERICAN POSTAL WORKERS UNION,, Appellant, 480-481 Area Local, et al. v. UNITED STATES POSTAL SERVICE.
Decision Date02 October 1987

Page 294

830 F.2d 294
126 L.R.R.M. (BNA) 2506, 265 U.S.App.D.C.
146, 56 USLW 2216,
2 Indiv.Empl.Rts.Cas. 978
Area Local, et al.
Nos. 85-5632, 85-5653.
United States Court of Appeals,
District of Columbia Circuit.
Argued Oct. 3, 1986.
Decided Oct. 2, 1987.

Page 296

Appeals from the United States District Court for the District of Columbia (Civil Action No. 84-00909).

John D. Bates, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence, Washington, D.C., and Mitchell Rand, Asst. U.S. Attys. were on the brief for, U.S. Postal Service, appellant in No. 85-5632 and cross-appellee in No. 85-5653. Mitchell Berger and Michael Joseph Ryan, Asst. U.S. Attys., Washington, D.C., entered appearances for U.S. Postal Service.

Penny Ann Pilzer, of the Bar of the District of Columbia Court of Appeals, pro hac vice by special leave of Court, with whom Anton G. Hajjar, Washington, D.C., was on the brief for American Postal Workers Union, AFL-CIO, appellees in No. 85-5632 and cross-appellants in No. 85-5653. Darryl J. Anderson, Washington, D.C., entered an appearance for American Postal Workers Union, AFL-CIO.

Arthur B. Spitzer, Washington, D.C., for amicus curiae, ACLU, urging modification and affirmance of the District Court's decision.

Before WALD, Chief Judge, RUTH BADER GINSBURG and BORK, Circuit Judges.

WALD, Chief Judge:

The United States Postal Service appeals from an order of the District Court directing it to reinstate discharged postal worker Joseph Gordon. The District Court concluded that, in dismissing Gordon, the Postal Service was motivated by a desire to punish his exercise of constitutionally protected speech and accordingly ordered that Gordon be reinstated to his prior position. Nevertheless, the District Court held that some punishment short of discharge could constitutionally be imposed on Gordon and remanded to the Postal Service to determine by arbitration appropriate sanctions through adjustments in Gordon's back pay, seniority rights, and benefits. We affirm the District Court's determination that Gordon was dismissed in violation of the first

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amendment, but we reject the assumption that some lesser punishment could be imposed. We conclude that Gordon is entitled to reinstatement with full back pay.


A. The Facts 1

Joseph V. Gordon was employed by the Postal Service in Royal Oak, Michigan, for 11 1/2 years until he was fired on July 7, 1983. J.A. at 107, 74. At the time of his dismissal, Gordon was working as a registry clerk; his duties consisted of guarding and accounting for valuables sent through the mail. J.A. at 74. Gordon received several commendations and monetary awards from the Postal Service during his employment. J.A. at 319-24.

Gordon was a member and steward of the 480-481 Area Local of the American Postal Workers Union ("APWU"). J.A. at 61, 110. He edited the local's monthly newsletter, The 480-481 Communicator, and wrote a regular column for the newsletter. J.A. at 61. The newsletter is sent to members and retired members of Local 480-481 and to the offices of other APWU locals. Its total circulation is around 2,100. J.A. at 30.

Gordon's column in the May, 1983, issue of The Communicator was entitled "Workers of the World Unite...." 2 J.A. at 61-64. The first three paragraphs of the column discussed in general terms the advantages of unionism for workers and offered suggestions for persuading nonmembers to join the union. See J.A. at 62-63. The fourth paragraph of the column stated:

I was motivated to write this article 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. Now, I can not imagine that these petitions were going to actual members of the work force but rather to members of management, but let's assume that he was in fact addressing a member of the labor force; just what is he asking? In short he was requesting that the recipient of the petition organize in an effort to prevent them for [sic] organizing or at least to prevent others from organizing to improve the status of the worker. In other words he wanted help from unorganized labor to keep them that way; I wonder why he just didn't ask them to support the reinstitution of slavery.

J.A. at 63-64. The final paragraph reiterated the importance of unionism and of convincing nonmembers to join the union and concluded: "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." J.A. at 64.

Howard Byrne, director of labor relations at the Royal Oak post office, received a copy of the newsletter from the postmaster. J.A. at 64, 223. Byrne asked general supervisor Charlene Bonds to investigate how Gordon had learned of the contents of the letter mentioned in his column. Id.

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Bonds questioned Gordon about the column around midnight on May 26, 1983. J.A. at 64-65. Bonds accused Gordon of violating Postal Service regulations by reading mail and disclosing its contents. J.A. at 65. During the discussion, Gordon gave Bonds the following written statement:

I, as Editor and Contributor to the 481 Area Local Communicator wrote an article concerning a letter from Congressman Crane. I was made aware of the petition by a friend who was asked to sign it. He later on then asked me about a right of Congressman to use the priveledge [sic] 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 listed 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.

I was unaware that disclosure of the contents the way it was written into the article was a violation so for the purpose of relating the article to Postal Workers, I did so. Just as the article in question has been brought to my attention by you, how is it that I cannot be certain that my Communicator was read by Postal management, which is while in the mail.

Thus, the article is not true in respect to how the petition was discovered. I do not even work 045 [third-class mail], except on a very rare occasion. If the USPS is offended by the fabrication I will print a correction in the new issue of the paper.

J.A. at 65.

After he completed his shift on May 27, Gordon wrote and delivered to the printer a retraction of his story concerning the Crane letter. J.A. at 67, 111-13. The retraction was published in the June, 1983, issue of the Communicator as the last paragraph of a column dealing with other subjects. J.A. at 64. It stated:

Last month I wrote an article entitled "Workers of the World Unite ..." that contained a fabrication for dramatization. I refer to the portion concerning the manner in which I discovered the "Right to Work" petition. I personally do not throw 045 or any mail for that matter, and was made aware of the petition by a friend who was asked to sign it. 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.

J.A. at 67.

After interviewing Gordon, Bonds immediately wrote and delivered to Byrne a report on her discussion with Gordon, to which she attached Gordon's written statement. J.A. at 66-67. In her report, Bonds stated that she had told Gordon that he had violated Secs. 115.2 and 115.5 of the Domestic Mail Manual, 3 and that "what he has done or stated he did is a very serious matter and that he could be discharged." J.A. at 66-67. She did not make any recommendation as to what form of discipline should be imposed.

Byrne drafted a notice of removal as soon as he received the report from Bonds. J.A. at 223. The only pieces of evidence before him when the decision to fire Gordon was made were the column itself and Bonds' report on her interview with Gordon, including Gordon's written statement. J.A. at 74. The discharge notice, which was dated May 27, 1983, was delivered to Gordon on June 2. J.A. at 67. The notice stated as the reasons for discharge that Gordon had violated Secs. 115.2 and 115.5 of the Domestic Mail Manual, as well as part 661.53 of the Employee and Labor Relations Manual of the Postal Service, which forbids any employee from engaging in

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"conduct prejudicial to the Postal Service." J.A. at 68, 73.

Gordon and the union filed a grievance, claiming that Gordon was being discharged without just cause in violation of Article 16 of the collective bargaining agreement between the union and the Postal Service. J.A. at 68-72. The final decision on the grievances stated that "[t]he grievant's action in the instant grievance violated the integrity of...

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