Manhattan-Bronx Postal Union v. Gronouski, 18882.

• Citation: 350 F.2d 451,121 US App. DC 321
• Decision Date: 29 July 1965
• Docket Number: No. 18882.,18882.
• Parties: MANHATTAN-BRONX POSTAL UNION et al., Appellants, v. John A. GRONOUSKI, individually and as Postmaster General of the United States, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

121 US App. DC 321, 350 F.2d 451 (1965)

MANHATTAN-BRONX POSTAL UNION et al., Appellants, v. John A. GRONOUSKI, individually and as Postmaster General of the United States, Appellee.

No. 18882.

United States Court of Appeals District of Columbia Circuit.

Argued March 16, 1965.

Decided July 29, 1965.

Mr. Roy C. Frank, Washington, D. C., for appellants.

Mr. Jerome Nelson, Asst. U. S. Atty., with whom Messrs. David C. Acheson, U. S. Atty., and Frank Q. Nebeker and Mrs. Ellen Lee Park, Asst. U. S. Attys., were on the brief, for appellee.

Before WILBUR K. MILLER, Senior Circuit Judge, and DANAHER and McGOWAN, Circuit Judges.

McGOWAN, Circuit Judge.

Appellants sought declaratory and injunctive relief in the District Court against appellee, the Postmaster General of the United States. Appellant Manhattan-Bronx Postal Union is an affiliate of the National Postal Union, a labor organization representing postal employees. Appellant Petre is a postal employee and a member of Manhattan-Bronx. They complain of appellee's refusal to recognize Manhattan-Bronx as the exclusive representative of certain employees in the New York City post office. This refusal is claimed to have been founded upon an arbitrary, capricious, and unlawful act by appellee in contravention of the terms of an Executive Order. We affirm the District Court's dismissal of the suit.

I

Executive Order 10988, issued January 18, 1962, 27 Fed.Reg. 551, grew out of the report of the President's Task Force on Employee-Management Relations in the Federal Service. That report recognized the frustrations that not infrequently assail federal employees as they observe the organizational activities of workers in private industry and what they assume to be the correspondingly greater role of the latter in the shaping of employment policies. Although the complete assimilation of the one type of employment to the other was thought to be impossible, the Order was intended to provide a framework for the collective expression by federal employees of their views about the terms and conditions of their employment. This was a project of the Executive, and not of the Congress. Executive Order 10988 does not, in its recitals, refer to any statute other than the Act of March 3, 1871, 5 U.S.C. § 631, which generally authorizes the President to issue regulations for the admission of persons into the civil service of the United States and for the governance of their conduct thereafter. The President, thus, was under no obligation to issue the Order; and his action in doing so was simply in furtherance of a personal policy of trying to enhance the attractiveness and efficiency of federal employment.

In the Order the President designated levels of recognition status for employee organizations — informal, formal, and exclusive.¹ To achieve recognition as the exclusive representative of a particular unit, the Order provided that an organization must have been "designated or selected by a majority of the employees of such unit." The Order elsewhere directed the head of each agency, not later than July 1, 1962, to issue appropriate rules and regulations for its implementation, including "policies and procedures with respect to recognition of employee organizations" for purposes of exclusive recognition. The Civil Service Commission was expressly adjured to "establish and maintain a program to assist in carrying out the objectives of this order," and to furnish guidance and advice to the agencies. Lastly, the Order established a Temporary Committee on the Implementation of the Federal-Employee Management Relations Program, chaired by the Secretary of Labor and with the Secretary of Defense, the Postmaster General, and the head of the Civil Service Commission as the other members. The function of this Committee was to advise the President on the working of the program and to be generally helpful in its implementation.

It was this Committee which first formally recommended the rule of which appellants now complain. In response to a request for advice upon whether exclusive recognition should require an absolute majority of employees eligible to vote, or a simple majority of those actually voting, the Committee recommended that the agencies uniformly require that, where less than an absolute majority vote for one organization was cast, there be a majority of those voting in a "representative election"; and it defined the latter as one in which a minimum of 60 per cent of the eligible voters actually voted. It contemplated that, in special cases, an agency might determine that "a percentage slightly less than 60% is representative." The Civil Service Commission, on April 24, 1962, transmitted this advice to all the agencies with its endorsement. On May 25 following, the Post Office Department issued a Postal Bulletin, to be displayed on employee bulletin boards and elsewhere, announcing and explaining the 60 per cent rule.

Appellants initiated this litigation against the Postmaster General in respect of the New York City unit on January 7, 1964. A principal complaint was that the use of an authorization card system was unfair. After the filing of a Supplemental and Amended Complaint, the parties stipulated that an election by secret ballot would be held. In this selection, only 57.07 per cent of the eligible voters voted, of which Manhattan-Bronx received a majority. Accordingly, appellee denied Manhattan-Bronx exclusive recognition, refusing to waive the 60 per cent rule in this instance because only 13 of some 6500 ballot kits had been returned as undeliverable, suggesting that many employees had deliberately refrained from voting.

A further Supplemental Complaint filed by appellants attacked this denial of exclusive representational status and asked the court to declare Manhattan-Bronx to be the exclusive representative of the unit, and, in effect, to enjoin appellee from taking any action inconsistent with that status.² Appellee filed a motion for summary judgment, accompanied by certain documentary materials. When that motion came on to be heard in open court, it was stipulated by the parties that (1) the motion might be considered alternatively as a motion to dismiss, and (2) summary judgment could be entered for appellants if the court found in their favor. The order thereafter entered by the court alternatively dismissed the action for lack of jurisdiction over the subject matter, and awarded summary judgment to appellee.

II

While appellants' claim on the merits appears to raise only the issue of whether appellee's adherence to the 60 per cent rule transgressed the President's Order and was, thus, unlawful, arbitrary, and capricious, we need not reach the trial court's alternative resolution of that question. We affirm instead its dismissal of the complaint, on two grounds. Appellants' suit, in effect, is one against the United States, which cannot be maintained without its consent. Moreover, the right they seek to assert in this instance is not, in our view, appropriate for judicial vindication.

The Supreme Court has made clear that a plaintiff's denomination of the party defendant is not the test of whether the suit is in fact against the United States. Many cases, both before and since Larson v. Domestic and Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), have recognized that "the crucial question is whether the relief sought in a suit nominally addressed to the officer is relief against the sovereign."³ 337 U.S. at 687, 69 S.Ct. at 1460. A suit is against the United States if the judgment sought would require the payment of public funds or entail the transfer of public lands, or if it would interfere with the public administration by either restraining the Government from acting or requiring it to act. See Dugan v. Rank, 372 U.S. 609, 83 S.Ct. 999, 10 L.Ed.2d 15 (1963); Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947); Seiden v. Larson, 88 U.S.App.D.C. 258, 188 F.2d 661, cert. denied, 341 U.S. 950, 71 S.Ct. 1017, 95 L.Ed. 1373 (1951). The decree requested by appellants would declare Manhattan-Bronx to be the exclusive representative of the postal employees in the New York City unit, and is no doubt intended to impose upon the Postmaster General the obligation of treating it as such. Appellants also seek permanently to prevent appellee, "his agents, employees and attorneys," from:

(a) Decertifying plaintiff, Manhattan-Bronx, as the exclusive representative of the mail handlers unit at the New York post office.

(b) Certifying that plaintiff, Manhattan-Bronx, was not designated by the employees of the mail handlers unit at the New York post office as the exclusive representative of said unit, effective as of July 4, 1964.

(c) Certifying Local No. 1 and plaintiff, Manhattan-Bronx as entitled to formal recognition of the mail handlers unit at the New York post office.

That there may be circumstances in which specific relief against an officer is not relief against the United States is, of course, no less well-recognized. See Larson v. Domestic and Foreign Commerce Corp., supra, 337 U.S. at 689-690, 69 S.Ct. 1457; Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct. 340, 56 L.Ed. 570 (1912).⁴ But such circumstances are not present here. Appellants do not contend that either appellee's assumption of authority to accord recognition to the representatives of employees within the Post Office Department, or his exercise thereof in this instance, violated any provision of the Constitution. See Dugan v. Rank, supra. They do claim that his adoption of and adherence to the 60 per cent rule is "in violation of" Executive Order No. 10988. But, even if true, this would not in our view establish that appellee's actions were clearly beyond his legal authority.⁵ The Postmaster General's responsibility for the administration of Government employment policies and regulations within his department is unquestioned. By the terms of the...