Malone v. United States Postal Service, 74-2037.

• Decision Date: 11 December 1975
• Docket Number: No. 74-2037.,74-2037.
• Citation: 526 F.2d 1099
• Parties: Walter MALONE, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE and Local 304, National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders, International Union of North America, AFL-CIO, Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

526 F.2d 1099

Walter MALONE, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE and Local 304, National Post Office Mail Handlers, Watchmen, Messengers and Group Leaders, International Union of North America, AFL-CIO, Defendants-Appellees.

No. 74-2037.

United States Court of Appeals, Sixth Circuit.

Argued February 4, 1975.

Decided December 11, 1975.

Cecil Blye, Blye & Webb, Mary Ann Webb, Louisville, Ky., for plaintiff-appellant.

George J. Long, U.S. Atty., James H. Barr, Asst. U.S. Atty., Segal, Isenberg, Sales & Stewart, Herbert L. Segal, Irwin H. Cutler, Jr., Louisville, Ky., Jules Bernstein, Washington, D.C., Robert J. Connerton, Arthur M. Schiller, Stanley A. Mestel, U.S. Postal Service, Labor Law Div., Washington, D.C., for defendants-appellee.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

McCREE, Circuit Judge.

This is an appeal from a grant of summary judgment for the defendants in a suit by a former Postal Service employee for reinstatement, back pay and seniority status, and attorney's fees. Jurisdiction is conferred by 39 U.S.C. §§ 409 and 1208. Two questions are presented on appeal: (1) whether the grievance and arbitration procedures authorized in the collective bargaining agreement between the Postal Service and the national postal unions are either contrary to the Postal Reorganization Act, 39 U.S.C. § 1001, or violative of due process; and (2) whether during the grievance and arbitration procedures authorized in the collective bargaining agreement, a Postal Service employee is entitled to be represented by someone other than the duly elected collective bargaining representative.

We hold that neither the Postal Reorganization Act nor due process precludes a governmental agency and the union that represents its employees from including a grievance arbitration provision in their collective bargaining agreement where there is also an alternative procedure that provides a trial type hearing. Further, we determine that Congress did not intend to provide that a Postal Service employee may elect to be represented by someone other than the exclusive collective bargaining agent in grievance arbitration proceedings under the collective bargaining agreement. Accordingly, the district court's judgment for appellees will be affirmed.

Appellant, Walter Malone, was employed as a mail handler in the Louisville Post Office, where he was a preference eligible nonprobationary veteran with approximately eighteen years of federal service. Appellees are the United States Postal Service ("the Postal Service") and Local 304 of the National Post Office Mail Handlers, Watchmen, Messengers, and Group Leaders Division of the Laborers' International Union of North America ("the Union"). The Union has been recognized in accordance with 39 U.S.C. § 1203 as the exclusive representative of the employees in the mail handlers unit. Malone was not a member of the Union, although it represented his employment unit for the purposes of collective bargaining. Pursuant to 39 U.S.C. § 1206 the Postal Service and the Union executed a collective bargaining agreement which included a grievance and arbitration provision. Article XVI, Section 6 of the agreement provided:

SECTION 6. VETERANS' PREFERENCE. A preference eligible is not hereunder deprived of whatever rights of appeal he may have under the Veterans' Preference Act, but he must exercise his option before invoking the grievance procedure, and if he appeals under the Veterans' Preference Act, he thereby waives all redress under this Agreement.

On May 6, 1972 Malone committed what the Postal Service regarded as an act of insubordination, and on May 12 he was notified of the Service's intention to discharge him for failure to obey orders. The notice advised Malone of the reasons upon which the discharge was to be based: his refusal to follow his supervisor's instructions and orders on May 6, and his past disciplinary record which included five previous suspensions for insubordination. The notice was read aloud to Malone when he refused to accept a copy of it. The notice informed him of his rights to proceed under the grievance arbitration provision of the collective bargaining agreement, and quoted Section 6, supra, concerning rights of appeal for preference eligible veterans stating:

Your attention is further directed to the fact that, in accordance with Section 2 of Article XV of the National Agreement, you have 5 days from the date of this notice in which to file a grievance concerning this action and therefore you must exercise the option specified in Section 6 the Veterans' Preference Section above within said period and inform the undersigned of your option.

Malone did not appeal to the Civil Service Commission under the Veterans' Preference Act. Instead he filed a Step 1 grievance in accordance with the procedures specified in the collective bargaining agreement. In Step 1, the employee, who may be accompanied by his steward or a union representative, must discuss his complaint with his supervisor within 5 days after learning of its cause.¹ Malone, accompanied by his union representative, timely discussed his grievance with the operations manager, who denied the grievance.

The Union has the right to appeal the denial of a Step 1 grievance to Step 2 by making a written appeal to the head of the installation.² The Union timely filed a written Step 2 grievance, which was also denied.

The next stage for grievances involving disciplinary actions is Step 2b, an appeal in writing to the Director of Employee Relations in the Regional Office, who is required to hold a hearing "at the management level higher than the installation level." If the grievance is denied again, the Union can refer the grievance to arbitration.³

The Union timely filed a written grievance with the Regional Director. Approximately 6 months later, on January 10, 1973, Malone informed the Postal Service that Attorney Cecil Blye was his representative in the pending proceedings. On February 2, 1973, the Postal Service replied that only an authorized agent of the Union, the exclusive bargaining representative, could represent Malone. On February 20, representatives of the Union and the Postal Service met, and appellant's grievance was denied. Malone was not given notice of this meeting, and was not present. On February 22, the Regional Director sent a letter to the Union denying Malone's grievance. The Union did not elect to arbitrate.

On May 11, 1973, the Postal Service informed Malone by letter that he had been dropped from the rolls and removed from the Service. Malone asserts that he never received notice from the Union that his grievance had been denied.

Malone contends that at some point in the grievance proceedings he was entitled to a trial type hearing with the opportunity to be present, to meet the evidence against him, and to confront and to cross-examine witnesses. He also contends that he was entitled to have his attorney, not the Union, represent him in the grievance proceedings.

The district court held that Malone had "several opportunities to personally present his side of the controversy" and that he had been given a "fair hearing" satisfying the Postal Reorganization Act, due process, and the collective bargaining agreement. It stated that under Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974),

an employee, like Mr. Malone, has no "property" interest in his job other than that which he is granted by his contract, he has no due process rights in connection with his job outside of those guaranteed by his contract.

Further, the court found that Malone was not entitled to be represented by his attorney, instead of the Union, in the grievance arbitration proceedings. The court held that the employees' section 1001 right to "representatives of their own choosing" was derived from the National Labor Relations Act, 29 U.S.C. § 159, and that in both statutes the phrase referred to the exclusive bargaining representative chosen by a majority of the employees. The court also held that Malone had not been denied his rights as a preference eligible veteran since he had made no effort to appeal to the Civil Service Commission. Finally, although the collective bargaining agreement provided that the right to elect the grievance procedure was waived once an employee initiated an appeal in accordance with the Civil Service procedures, the agreement did not expressly provide that preference eligible veterans' benefits are waived if the grievance procedure is pursued. The court suggested that Malone might still be able to pursue his veteran's preference remedies.

THE 39 U.S.C. § 1001 REQUIREMENT OF A "FAIR HEARING"

Malone's first argument is that a trial type hearing is required by 39 U.S.C. § 1001, which provides:

The Postal Service shall establish procedures, in accordance with this title, to assure its officers and employees meaningful opportunities for promotion and career development and to assure its officers and employees full protection of their employment rights by guaranteeing them an opportunity for a fair hearing on adverse actions, with representatives of their own choosing. Emphasis added.

We do not agree with the contention that this section requires that any grievance arbitration procedures included in a Postal Service collective bargaining agreement must provide for a trial type hearing. To the contrary, the Postal Reorganization Act indicates congressional authorization of a system where a preference eligible veteran employee has the option either to pursue grievance arbitration procedures, or to appeal first within the Postal Service and ultimately to the Civil Service Commission. In the latter case the employee is entitled to a trial type hearing, which would afford increased procedural safeguards including the choice of counsel, but possibly at the cost of substantial delay. In grievance arbitration proceedings, on the other hand, the...