United Federation of Postal Clerks v. Blount

• Decision Date: 31 March 1971
• Docket Number: Civ. A. No. 3297-69.
• Citation: 325 F. Supp. 879
• Parties: UNITED FEDERATION OF POSTAL CLERKS, Plaintiff, v. Winton M. BLOUNT, as Postmaster General of the United States, Defendant.
• Court: U.S. District Court — District of Columbia

325 F. Supp. 879

UNITED FEDERATION OF POSTAL CLERKS, Plaintiff, v. Winton M. BLOUNT, as Postmaster General of the United States, Defendant.

Civ. A. No. 3297-69.

United States District Court, District of Columbia.

March 31, 1971.

Donald M. Murtha, Washington, D. C., for plaintiff.

L. Patrick Gray III, Asst. Atty. Gen., Thomas A. Flannery, U. S. Atty., Herland F. Leathers, David Orlikoff, and Peter J. Brickfield, Dept. of Justice, for defendant.

Before WRIGHT and MacKINNON, Circuit Judges, and PRATT, District Judge.

PER CURIAM:

This action was brought by the United Federation of Postal Clerks (hereafter sometimes referred to as "Clerks"), an unincorporated public employee labor organization which consists primarily of employees of the Post Office Department, and which is the exclusive bargaining representative of approximately 305,000 members of the clerk craft employed by defendant. Defendant Blount is the Postmaster General of the United States. The Clerks seek declaratory and injunctive relief invalidating portions of 5 U. S.C. § 7311, 18 U.S.C. § 1918, an affidavit required by 5 U.S.C. § 3333 to implement the above statutes, and Executive Order 11491, C.F.R., Chap. II, p. 191. The Government, in response, filed a motion to dismiss or in the alternative for summary judgment, and plaintiff filed its opposition thereto and cross motion for summary judgment. A three-judge court was convened pursuant to 28 U.S.C. § 2282 and § 2284 to consider this issue.

The Statutes Involved

5 U.S.C. § 7311(3) prohibits an individual from accepting or holding a position in the federal government or in the District of Columbia if he

"(3) participates in a strike * * * against the Government of the United States or the government of the District of Columbia * * *."

Paragraph C of the appointment affidavit required by 5 U.S.C. § 3333, which all federal employees are required to execute under oath, states (POD Form 61):¹

"I am not participating in any strike against the Government of the United States or any agency thereof, and I will not so participate while an employee of the Government of the United States or any agency thereof."

18 U.S.C. § 1918, in making a violation of 5 U.S.C. § 7311 a crime, provides:

"Whoever violates the provision of section 7311 of title 5 that an individual may not accept or hold a position in the Government of the United States or the government of the District of Columbia if he * * *

"(3) participates in a strike, or asserts the right to strike, against the Government of the United States or the District of Columbia * * *

"shall be fined not more than $1,000 or imprisoned not more than one year and a day, or both."

Section 2(e) (2) of Executive Order 11491 exempts from the definition of a labor organization any group which:

"asserts the right to strike against the Government of the United States or any agency thereof, or to assist or participate in such a strike, or imposes a duty or obligation to conduct, assist or participate in such a strike * *."

Section 19(b) (4) of the same Executive Order makes it an unfair labor practice for a labor organization to:

"call or engage in a strike, work stoppage, or slowdown; picket an agency in a labor-management dispute; or condone any such activity by failing to take affirmative action to prevent or stop it; * * *."

Plaintiff's Contentions

Plaintiff contends that the right to strike is a fundamental right protected by the Constitution, and that the absolute prohibition of such activity by 5 U.S.C. § 7311(3) and the other provisions set out above thus constitutes an infringement of the employees' First Amendment rights of association and free speech and operates to deny them equal protection of the law. Plaintiff also argues that the language to "strike" and "participates in a strike" is vague and overbroad and therefore violative of both the First Amendment and the due process clause of the Fifth Amendment. For the purposes of this opinion, we will direct our attention to the attack on the constitutionality of 5 U.S.C. § 7311(3), the key provision being challenged. To the extent that the present wording of 18 U.S.C. § 1918(3) and Executive Order 11491 does not reflect the actions of two statutory courts in Stewart v. Washington, 301 F.Supp. 610 (D.C.D.C.1969) and N.A.L.C. v. Blount, 305 F.Supp. 546 (D.C.D.C.1969), said wording, insofar as it inhibits the assertion of the right to strike, is overbroad because it attempts to reach activities protected by the First Amendment and is therefore invalid. With this caveat, our treatment of the issue raised by plaintiffs with respect to the constitutionality of 5 U.S.C. § 7311(3) will also apply to 18 U.S.C. § 1918, the penal provision, and to Form 61, the affidavit required by 5 U.S.C. § 3333. For the reasons set forth below, we deny plaintiff's request for declaratory and injunctive relief and grant defendant's motion to dismiss.

I. PUBLIC EMPLOYEES HAVE NO CONSTITUTIONAL RIGHT TO STRIKE.

At common law no employee, whether public or private, had a constitutional right to strike in concert with his fellow workers. Indeed, such collective action on the part of employees was often held to be a conspiracy. When the right of private employees to strike finally received full protection, it was by statute, Section 7 of the National Labor Relations Act,² which "took this conspiracy weapon away from the employer in employment relations which affect interstate commerce" and guaranteed to employees in the private sector the right to engage in concerted activities for the purpose of collective bargaining. See discussion in International Union, U.A. W.A., A.F. of L. Local 232 v. Wisconsin Employment Relations Board, 336 U.S. 245, 257-259, 69 S.Ct. 516, 93 L.Ed. 651 (1948). It seems clear that public employees stand on no stronger footing in this regard than private employees and that in the absence of a statute, they too do not possess the right to strike. The Supreme Court has spoken approvingly of such a restriction, see Amell v. United States, 384 U.S. 158, 161, 86 S.Ct. 1384, 16 L.Ed.2d 445 (1965), and at least one federal district court has invoked the provisions of a predecessor statute, 5 U.S.C. § 118p-r, to enjoin a strike by government employees. Tennessee Valley Authority v. Local Union No. 110 of Sheet Metal Workers, 233 F.Supp. 997 (D.C.W.D.Ky.1962). Likewise, scores of state cases have held that state employees do not have a right to engage in concerted work stoppages, in the absence of legislative authorization. See, e. g. Los Angeles Metropolitan Transit Authority v. Brotherhood of R.R. Trainmen, 54 Cal. 684, 8 Cal.Rptr. 1, 355 P.2d 905 (1960); Board of Education, etc. v. Redding, 32 Ill.2d 567, 207 N.E.2d 427 (1965); Alcoa, City of v. International Brotherhood of Electrical Workers, 203 Tenn. 13, 308 S.W.2d 476 (1957). It is fair to conclude that, irrespective of the reasons given, there is a unanimity of opinion in the part of courts and legislatures that government employees do not have the right to strike. See Moberly, The Strike and Its Alternative in Public Employment, University of Wisconsin Law Review (1966) pp. 549-550, 554.

Congress has consistently treated public employees as being in a different category than private employees. The National Labor Relations Act of 1937 and the Labor Management Relations Act of 1947,³ (Taft-Hartley) both defined "employer" as not including any governmental or political subdivisions, and thereby indirectly withheld the protections of § 7 from governmental employees. Congress originally enacted the no-strike provision separately from other restrictions on employee activity, i. e., such as those struck down in Stewart v. Washington and N.A.L.C. v. Blount, supra, by attaching riders to appropriations bills which prohibited strikes by government employees. See for example the Third Urgent Deficiency Appropriation Act of 1946,⁴ which provided that no part of the appropriation could be used to pay the salary of anyone who engaged in a strike against the Government. Section 305 of the Taft-Hartley Act⁵ made it unlawful for a federal employee to participate in a strike, providing immediate discharge and forfeiture of civil service status for infractions. Section 305 was repealed in 1955 by Public Law 330,⁶ and re-enacted in 5 U.S.C. § 118p-r, the predecessor to the present statute.

Given the fact that there is no constitutional right to strike, it is not irrational or arbitrary for the Government to condition employment on a promise not to withhold labor collectively, and to prohibit strikes by those in public employment, whether because of the prerogatives of the sovereign, some sense of higher obligation associated with public service, to assure the continuing functioning of the Government without interruption, to protect public health and safety or for other reasons. Although plaintiff argues that the provisions in question are unconstitutionally broad in covering all Government employees regardless of the type or importance of the work they do, we hold that it makes no difference whether the jobs performed by certain public employees are regarded as "essential" or "non-essential," or whether similar jobs are performed by workers in private industry who do have the right to strike protected by statute. Nor is it relevant that some positions in private industry are arguably more affected with a public interest than are some positions in the Government service. While the Fifth Amendment contains no Equal Protection Clause similar to the one found in the Fourteenth Amendment, concepts of Equal Protection do inhere in Fifth Amendment Principles of Due Process. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954). The Equal Protection Clause, however, does not forbid all discrimination. Where fundamental rights are not involved, a particular classification does not violate the Equal Protection Clause if it is not "arbitrary" or "irrational," i....