American Postal Workers Union v. US POSTAL SER.

• Citation: 595 F. Supp. 403
• Decision Date: 18 October 1984
• Docket Number: No. H-84-809 Civil.,H-84-809 Civil.
• Parties: AMERICAN POSTAL WORKERS UNION, et al. v. UNITED STATES POSTAL SERVICE.
• Court: U.S. District Court — District of Connecticut

595 F. Supp. 403

AMERICAN POSTAL WORKERS UNION, et al. v. UNITED STATES POSTAL SERVICE.

No. H-84-809 Civil.

United States District Court, D. Connecticut.

August 14, 1984.

On Motion for Reconsideration or Stay October 18, 1984.

COPYRIGHT MATERIAL OMITTED

Christopher C. Burdett, Stamford, Conn., Robert A. Cantore, Vladeck, Waldman, Elias, Engelhard, New York City, for plaintiffs.

W. Philip Jones, Asst. U.S. Atty., Hartford, Conn., for defendant.

RULING ON MOTION FOR A PRELIMINARY INJUNCTION

BLUMENFELD, Senior District Judge.

The plaintiffs seek a preliminary injunction restraining the Postal Service from terminating the employment of Philip N. Danko, pending arbitration of the dispute. The defendant opposes the motion and has moved to dismiss for failure to state a claim. The plaintiffs' motion was heard on August 8, 1984, but no evidence was taken because the defendant conceded that the facts as stated in the plaintiffs' complaint were true.

Facts

This dispute began with the decision of the Postal Service to "excess" (i.e., eliminate) fourteen positions at the New London Post Office and transfer a number of those employees to other offices in Connecticut. Danko, who is President of the union local, opposed this action; in particular, he claimed that the loss of these positions caused delayed mail service for customers of the New London Post Office. Danko publicized his opposition by contacting the local newspapers, the Senators from Connecticut, and his local Congressman.

The dispute was brought to a head by a letter that Danko sent to Mystic Color Lab, the largest customer of the New London Post Office. Danko informed Mystic Color Lab that, as a result of the elimination of the fourteen positions, its mail was being delayed. The defendant concluded that this letter constituted conduct prejudicial to the interest of the Postal Service and decided to discharge Danko.

The firing was to have taken effect on July 26, 1984, but Judge Clarie issued a temporary restraining order precluding the firing on July 24, 1984, which I extended for an additional ten days on August 3, 1984. The plaintiffs, Danko and the union representing employees at the New London Post Office, seek a preliminary injunction restraining the discharge until the arbitration of the dispute is completed.

The collective bargaining agreement requires arbitration of this dispute and the parties have commenced the arbitration process.¹ The collective bargaining agreement establishes four steps in the arbitration process, two of which have been completed.

Discussion

The plaintiffs have presented several arguments in support of their contention that Danko should not have been fired by the Postal Service. The defendant disputes the merits of all of the plaintiffs' arguments and contends that a preliminary injunction should not issue because the plaintiffs have not established any irreparable harm. The defendant also challenges the court's jurisdiction because primary jurisdiction lies with the NLRB.

To obtain a preliminary injunction, the plaintiff must show:

(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly toward the plaintiff.

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir.1979). Danko's financial difficulties resulting from his discharge are not sufficient to establish irreparable injury. See Sampson v. Murray, 415 U.S. 61, 94 S.Ct. 937, 39 L.Ed.2d 166 (1974). But the plaintiffs contend that Danko's discharge will have a chilling effect on his and the other employees' exercise of their first amendment rights. The union contends that the chilling effect on its members' first amendment rights is an irreparable injury. To determine whether there will be a chilling effect one must first inquire whether Danko's actions were protected by the first amendment.

First Amendment

The Postal Service contends that Danko's letter did not address a matter of public concern and thus was not protected speech under the first amendment.² From the other side, the plaintiffs contend that Danko's letter did not address a matter of purely private concern; they contend that the public has a vital interest in the efficient operation of the mails.

Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.

Connick, 103 S.Ct. at 1690 (footnote omitted).

In Connick, an assistant district attorney distributed to other employees a questionnaire criticizing the internal workings of the district attorney's office, which was held not to be a matter of public concern. But see Mount Healthy City Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) (speech about a dress code for teachers was a matter of public concern because it affected public support for bond issues). However, one of the questions on the questionnaire did address a matter of public concern: whether public employees were pressured into participating in political campaigns.³ Connick, 103 S.Ct. at 1691. Similarly, in Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Court held that a schoolteacher's complaints about the allocation of funds between academic and athletic programs were addressed to a matter of public concern.

In this case, Danko's letter was about a matter of public concern as well as a purely private dispute. The letter was designed to aid the union in its efforts to convince the Postal Service to reinstate the jobs which had been terminated at the New London Post Office. This dispute over the jobs is a private dispute between the union and the Postal Service, but the effects of this dispute were not a purely private matter. It should be noted that Danko's letter was but one part of a campaign to inform the public of delays in mail deliveries at the New London Post Office. This campaign had received some attention in the local newspapers, which is some evidence that the matter is of public concern.⁴ The public has a legitimate and pressing interest in the prompt delivery of the mails. Thus, to the extent that the lost jobs caused a delay of the mails, the private dispute was a matter of public concern.

Irreparable Harm

The loss of first amendment rights for even a short period of time is an irreparable injury. Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Furthermore, "a plausible claim of a `chilling effect' on the exercise of first amendment rights meets the irreparable harm requirement." Maceira v. Pagan, 649 F.2d 8, 18 (1st Cir.1981); see also Katz v. McAulay, 438 F.2d 1058, 1060 n. 3 (2d Cir.1971), cert. denied, 405 U.S. 933, 92 S.Ct. 930, 30 L.Ed.2d 809 (1972); Chicago Area Military Project v. City of Chicago, 508 F.2d 921, 926 (7th Cir.), cert. denied, 421 U.S. 992, 95 S.Ct. 1999, 44 L.Ed.2d 483 (1975). I conclude that the plaintiffs have shown that the failure to enjoin Danko's discharge would result in a chilling of his and the other employees' exercise of their first amendment rights; thus the plaintiffs have satisfied the irreparable harm requirement.

Success on the Merits

The defendant contends that Danko committed an act of disloyalty and thus his discharge was justified. The plaintiffs argue that the discharge was unlawful because Danko was discharged for exercising his first amendment rights. Although the defendant might argue that it would have discharged Danko even in the absence of the protected conduct, see Mount Healthy, 429 U.S. at 281-87, 97 S.Ct. at 573-76, the only instance of disloyalty which the defendant has presented is the letter to Mystic Color Lab. Thus, this case is distinguishable from Mount Healthy in which the defendant claimed that the plaintiff had engaged in conduct justifying his discharge completely apart from the conduct which was protected by the first amendment. Id. at 281-82, 97 S.Ct. at 573-74. In light of my conclusion, at this stage of the proceedings,⁵ that Danko's letter addressed a matter of public concern, the defendant's admission that Danko was discharged for writing that letter⁶ is a sufficient basis to find that the plaintiffs have shown a likelihood of success on their claim that Danko's discharge was unlawful.⁷

Jurisdiction

The defendant has moved to dismiss this suit because primary jurisdiction lies with the NLRB and therefore this court does not have jurisdiction to issue an injunction. In Boys Markets, Inc. v. Retail Clerk's Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970), the Supreme Court held that a union may be enjoined from striking over a grievance which the collective bargaining agreement consigned to arbitration. Otherwise, the union could frustrate the arbitration process by using a strike to wring concessions from an employer before the arbitrator could decide the issue. The availability of injunctions has been narrowed in Buffalo Forge Co. v. United Steelworkers, 428 U.S. 397, 96 S.Ct. 3141, 49 L.Ed.2d 1022 (1976), but an injunction may be issued in aid of arbitration. See Columbia Local, American Postal Workers Union v. Bolger, 621 F.2d 615 (4th Cir.1980); United Steelworkers v. Fort Pitt Steel Casting, 598 F.2d 1273 (3d Cir.1979). In addition to the traditional requirements for the issuance of a preliminary injunction, the failure to issue an injunction must "deprive the union of an effective remedy in the event the arbitrator decided the grievance in the union's favor." Local Lodge No. 1266 v. Panoramic Corp., 668 F.2d 276, 283 (7th Cir.1981); Lever Bros. Co. v. Int'l. Chemical Workers, 554 F.2d 115 (4th Cir.1976).

The inquiry into whether the arbitration would be frustrated by the failure to issue an injunction is closely related to the question of whether the plaintiffs will suffer an irreparable...