I'm proud to announce
a landmark victory by John P. DiFalco and Assoc. on behalf of all Postmasters.
On September 12, 2003, MSPB Administrative Judy Edward F. Manning issued
a decision reinstating Postmaster Derek Hatten, who had been ordered terminated
by a labor arbitrator in an arbitration award between the U.S. Postal Service
and NALC. The Administrative Judge found that Postmaster Hatten was not
part of the arbitration proceeding, and a decision ordering his termination,
when implemented by the U.S. Postal Service, was not in conformity with
federal law protecting the due process rights of Postmasters, and therefore
was essentially null and void. The decision to discharge Postmaster Hatten
was reversed. He is to be reinstated with full back pay and benefits.
Postmaster Hatten, who the Postal Service acknowledges as not being at fault
in the case and was not someone who they wished to discharge, benefited
greatly by a single decision he made when he first became a Postmaster.
He joined the LEAGUE! Thus, when he literally became an innocent victim,
he was provided excellent legal representation pursuant to the LEAGUE's
famous Adverse Action Legal Services
Notably, the Hatten decision is a victory for all Postmasters as the precedent
set is that Postmasters cannot be summarily removed from a valued position
as a result of a dispute in which the Postmaster isn't even a party.
It appears that the best decision that Derek Hatten ever made was to
join the LEAGUE. In this modern era where Postmasters are constantly in
jeopardy, that same decision is a very wise one for each and every new Postmaster.
National League of Postmasters President Steve Lenoir
USPS APPEALS Arbitration
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES POSTAL
v. No. 02-1159
OF LETTER CARRIERS, AFL-CIO,
Appeal from the
United States District Court
for the District
of Maryland, at Baltimore.
J. Frederick Motz,
Before WILKINS, MICHAEL, and KING, Circuit Judges.
Reversed and remanded by unpublished per curiam opinion.
COUNSEL: Peter Daniel DeChiara, COHEN, WEISS & SIMON,
L.L.P., New York, New York, for Appellant. Edward Himmelfarb, Appellate
Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee. ON BRIEF: Robert D. McCallum, Jr., Assistant
Attorney General, Thomas M. DiBiagio, United States Attorney, William Kanter,
Appellate Staff, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
The National Association of Letter Carriers (NALC) appeals
a decision of the district court vacating an arbitral award in the NALC’s
favor. We reverse and remand.
This appeal arises from a grievance alleging that a postal
worker, Alton R. Branson, was assaulted by his supervisor, Derek F. Hatten.
This grievance led to arbitration between the NALC, which
is Branson’s union, and the United States Postal Service (USPS).
Two documents are relevant to this case. The first is the
collective bargaining agreement (CBA) between the USPS and the NALC. The
second is the Joint Statement on Violence and Behavior in the Workplace
(Joint Statement), which was issued in 1992 by the USPS and several employee
organizations (including the NALC) in response to numerous acts of violence
by postal workers. The Joint Statement provides in pertinent part, "Those
who do not treat others with dignity and respect will not be rewarded or
promoted. Those whose unacceptable behavior continues will be removed from
their positions." J.A. 83. In 1996, an arbitrator decided that the Joint
Statement "constitutes a contractually enforceable agreement" between the
USPS and the NALC. Id. at 143.
In the grievance underlying this appeal, the NALC alleged
that Hatten’s conduct violated the Joint Statement and that the USPS was
therefore contractually obligated to discipline him severely, preferably
by discharging him from postal employment. The USPS countered that discharge
would be an unduly severe remedy under the circumstances. The arbitrator
sided with the NALC and ordered the USPS to "remove [Hatten] from the
Postal Service." Id. at 104.
The USPS then filed this action in the district court seeking
to vacate the arbitration award (the Award). The USPS argued that the order
to discharge Hatten was improper because Hatten was not a party to the arbitration
proceeding, and discharging Hatten pursuant to the Award would therefore
violate due process and the procedures established by civil service statutes,
see 5 U.S.C.A. § 7513 (West 1996) (enumerating procedural rights
of civil servants facing dismissal); 39 U.S.C.A. § 1005(a)(1) (West 1980
& Supp. 2002) (extending protections of civil service laws to postal workers).
The NALC counterclaimed for enforcement of the Award, and both sides moved
for summary judgment.
The district court ruled in favor of the USPS without addressing
the parties’ arguments. Instead, the court held that the Joint Statement
precludes termination for a single act of violence and that dismissal therefore
was not a contractually authorized remedy for Hatten’s conduct.
The NALC contends that the decision of the district court
was improper because it relied on a theory not presented to the arbitrator.
We agree. Prior to this appeal, the USPS never argued that the Joint Statement
precludes dismissal for a single act of violence. By failing to raise this
claim in arbitration, the USPS waived it. See Dist. 17, United Mine Workers
v. Island Creek Coal Co., 179 F.3d 133, 140 (4th Cir. 1999); see
also Brook v. Peak Int’l, Ltd., 294 F.3d 668, 673-74 (5th Cir. 2002)
(finding waiver where question concerning composition of arbitration panel
was raised sua sponte by district court).
Although it does not concede that it waived the theory adopted
by the district court, the USPS relies more heavily on a different argument:
that the Award is improper because it requires the discharge of an employee
who was not a party to the arbitration proceeding. But this argument also
was not raised in arbitration and thus is also waived. The USPS urges that
this argument is not waivable because it is based on due process and the
civil service statutes; thus, if upheld, this argument would render the
CBA and the Joint Statement unenforceable on public policy grounds. Our
precedent does not support this position, however. See Dist. 17,
179 F.3d at 140 (finding waiver of First Amendment claim not raised
during arbitration); see also AAOT Foreign Econ. Ass’n (VO) Technostroyexport
v. Int’l Dev. & Trade Servs., Inc., 139 F.3d 980, 981-82 (2d Cir. 1998)
(holding that party waived public policy challenge by failing to raise it
during arbitration). We therefore hold that the decision of the district
court may not be affirmed on the alternative reasoning offered by the USPS.*
For the foregoing reasons, we reverse the decision of the
district court. The case is remanded for further proceedings consistent
with this opinion.
REVERSED AND REMANDED
*Although the USPS has waived this public policy argument,
Hatten could still raise it in a challenge to his dismissal before the Merit
Systems Protection Board. See Westbrook v. Dep’t of the Air Force,
77 M.S.P.R. 149, 154 (1997).
posted June 15, 2003
FOR FULL-TEXT PUBLICATION
Pursuant to Sixth
Circuit Rule 206
2003 FED App. 0180P (6th Cir.)
File Name: 03a0180p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
States Postal Service,
Association of Letter Carriers, AFL-CIO,
Appeal from the United States District Court
for the Western District of Tennessee at Memphis.
No. 00-02651--Julia S. Gibbons, District Judge.
Argued: May 8, 2003
Decided and Filed: June 5, 2003
Before: GUY, SUHRHEINRICH, and BATCHELDER, Circuit Judges.
B. GUY, JR., Circuit Judge. Plaintiff, United States Postal Service (Postal
Service), appeals from the grant of summary judgment in favor of defendant,
National Association of Letter Carriers, AFL-CIO (NALC), upholding an arbitration
award that ordered the Postal Service to demote a supervisory employee.
On appeal, the Postal Service argues that it was error for the district
court not to vacate the arbitration award as a violation of public policy.
After review of the record and the applicable law, we affirm.
arbitration award arose out of an incident between J.A. Barnett, a letter
carrier and member of the NALC, and a customer services supervisor, Herbert
Boyd, which occurred on December 29, 1994. Barnett, a union branch president,
went to a postal service facility to talk with Boyd about problems that
the union steward claimed to have getting access to information related
to his union duties. They went into the office of the station manager, Donna
Williams, to discuss the matter. Boyd began yelling, and Barnett indicated
he wanted to leave. Boyd backed up against the closed door and said, "You
move me." Barnett tried to leave twice more and Boyd yelled, pointed a finger
in his face, and repeated that he would have to move him. Barnett was able
to leave after Williams intervened. The next week, Boyd was promoted to
grieved the incident under its collective bargaining agreement and the Joint
Statement on Violence and Behavior in the Workplace. The Joint Statement
was signed in 1992 by the Postal Service, the NALC, and other postal employee
organizations after a former letter carrier shot to death four postal employees
at the post office in Royal Oak, Michigan. The parties to the Joint Statement
pledged to "firmly and unequivocally commit to do everything within our
power to prevent further incidents of work-related violence." The Joint
Statement provided: "there is no excuse for and will be no tolerance of
violence or any threats of violence by anyone at any level of the Postal
Service; and . . . there is no excuse for and will be no tolerance of harassment,
intimidation, threats, or bullying by anyone." Postal employees who do not
treat others with dignity and respect "will not be rewarded or promoted.
Those whose unacceptable behavior continues will be removed from their positions."
A national-level arbitration decision found the Joint Statement was a contractually
enforceable agreement (the Snow Award).
management denied the grievance, NALC appealed to arbitration. The arbitrator
heard testimony from Boyd, Barnett, and Williams concerning the incident.
Observing that Boyd came close to starting a fight, the arbitrator concluded
that Boyd's gestures and words combined to constitute a clear violation
of the Joint Statement. The arbitrator also found that Boyd's promotion
to station manager, which was approved by Williams, treated Boyd's improper
behavior with a "wink and a nod." As a remedy, the arbitrator ordered that:
Manager Boyd will be
reduced in position to supervisor, Customer Services, the position which
he occupied before his promotion or to an equivalent position outside
the bargaining unit. If he returns to his former position, it will be
to a different station within the Memphis Office or to another office.
Further he will not be "rewarded or promoted" for a period of five years
from receipt of Award, the period which corresponds in time to the pendency
of the Union's grievance. Excluded from "rewards" are normal, across-the-board
salary increases, the amounts of which constitute adjustments for inflation
or "competitive salary" considerations.
The Postal Service was also
ordered to place a copy of the award in Boyd's file and post an apology
from the local postmaster.(1)
to vacate the award, the Postal Service brought this action arguing (1)
that the arbitrator exceeded his authority under the collective bargaining
agreement, and (2) that implementation of the award violated public policy
because it would force the Postal Service to transgress both Boyd's constitutional
due process rights and his statutory, predeprivation procedural rights.
In granting summary judgment to NALC and denying summary judgment to the
Postal Service, the district court found that the Postal Service did not
have standing to assert Boyd's rights and that such claims were not ripe
for review because it was unknown whether Boyd would assert a violation
of those rights upon being demoted.
only claim pursued by the Postal Service on appeal is that the district
court should have vacated the arbitration award as contrary to public policy
on the grounds that it would force the Postal Service to violate the statutory
procedural protections it was obligated to provide to Boyd under 5 U.S.C.
district court's decision regarding jurisdiction is reviewed de novo.
Charter Township of Muskegon v. City of Muskegon, 303 F.3d 755,
759 (6th Cir. 2002). Likewise, our review of a decision rejecting a public
policy challenge to an arbitration award is also de novo. MidMichigan
Reg'l Med. Ctr. v. Prof. Employees Div. of Local 79, 183 F.3d 497,
501 (6th Cir. 1999). We may affirm a decision of the district court if correct
for any reason, including one not considered below. See Russ' Kwik Car
Wash, Inc. v. Marathon Petroleum Co., 772 F.2d 214, 216 (6th Cir. 1985).
requirement for Article III standing is that a "plaintiff generally must
assert his own legal rights and interests, and cannot rest his claim to
relief on the legal rights or interests of third parties." Int'l Union
v. Dana Corp., 278 F.3d 548, 559 (6th Cir. 2002) (quoting
Warth v. Seldin, 422 U.S. 490, 499 (1975)). NALC argues that implementation
of the award would benefit, not injure, the Postal Service by deterring
unacceptable behavior by other employees. Our concern, however, is whether
there is a "case" or "controversy" for Article III purposes. We are satisfied
that to the extent the Postal Service claims the award will force it to
violate a federal statute, it is asserting its own rights and has Article
the question of ripeness bears a close affinity to questions of standing,
ripeness focuses on the timing of the action rather than on the party that
brings the suit. Peoples Rights Org., Inc. v. City of Columbus,
152 F.3d 522, 527 (6th Cir. 1998). The factors to be weighed in deciding
whether to address the question include: (1) the likelihood that the harm
alleged by the party will ever come to pass; (2) whether the factual record
is sufficiently developed to produce a fair adjudication of the merits;
and (3) the hardship to the parties if judicial relief is denied at this
stage in the proceedings. Id. Applying these factors, we find that
this case is ripe for review. The Postal Service is faced with a reasonable
threat of liability if compliance with the arbitration order violates the
CSRA. Also, the record is sufficiently developed to allow us to consider
the legal question before us on appeal.
brings us to the issue pressed by the Postal Service; whether the arbitration
award should be vacated as contrary to public policy. "[W]hen an arbitration
award is challenged on public policy grounds, the court must determine whether
the arbitrator's interpretation of the contract jeopardizes a well-defined
and dominant public policy, taking the facts as found by the arbitrator."
Bd. of County Comm'rs v. L. Robert Kimball & Assocs., 860 F.2d
683, 686 (6th Cir. 1988). Public policy must be determined from laws and
legal precedents, not general considerations of public interest. E.
Associated Coal Corp. v. UMWA, Dist. 17, 531 U.S. 57, 67 (2000) (quoting
W.R. Grace & Co. v. Local Union No. 759, Int'l Union of United Rubber
Workers, 461 U.S. 757, 766 (1983)).
relevant question is not whether the underlying conduct, here Boyd's alleged
violation of the Joint Statement, violates public policy, but rather whether
ordering the Postal Service to demote Boyd because he should not have been
promoted would violate an explicit public policy. See Interstate Brands,
Corp. v. Chauffeurs Local Union No. 135, 909 F.2d 885, 893 (6th Cir.
1990) (upholding arbitration award reinstating delivery driver charged with
drug offenses for off-duty conduct). That is, would it force the Postal
Service to violate the law. See, e.g., Am. Postal
Workers Union, AFL-CIO v. United States Postal Serv., 682 F.2d 1280,
1286 (9th Cir. 1982) (award reinstating air traffic controller who participated
in strike could not be enforced because federal statute prohibited employment
of one who had participated in a strike against the government).
Postal Service argues that it cannot comply with the arbitration award without
violating provisions of the Civil Service Reform Act of 1978 (CSRA). 5 U.S.C.
§ 7511-13. Under the Postal Reorganization Act, certain preference-eligible
postal employees, including supervisory employees with over one year of
continuous service, are covered by the CSRA's provision for administrative
and judicial review of adverse personnel actions. 39 U.S.C. § 1005(a)(4).
Adverse personnel actions are defined as removal from federal employment,
suspension for more than 14 days, a reduction in grade, a reduction in pay,
and a furlough of 30 days or less. 5 U.S.C. § 7512. The procedural protections
are set forth in 5 U.S.C. § 7513(b), which states that an employee against
whom an action is proposed is entitled to: (1) at least 30 days' advance
written notice stating the specific reasons for the proposed action; (2)
a reasonable time to answer and provide affidavits or other evidence in
support of that answer; (3) to be represented by an attorney; and (4) "a
written decision and the specific reasons therefore at the earliest practicable
date." Id. at § 7513(b)(4). The agency may provide a hearing in
lieu of or in addition to the opportunity to answer. Id. at § 7513(c).
Finally, the statute provides that an employee is also entitled to appeal
the action to the Merit Systems Protection Board (MSPB) under 5 U.S.C. §
7701. Id. at 7513(d).
indications to date, including representations made by counsel at oral argument,
are that the Postal Service has yet to take adverse action against Boyd
as required by the arbitration award. The Postal Service argues first that
the award directed it to demote Boyd summarily and without regard for the
CSRA's procedural requirements. On the contrary, the award does not specify
the manner by which the remedy is to be implemented. We find that the Postal
Service remains capable of strictly complying with the statute's requirements,
beginning with written notice of the proposed adverse action that specifically
states the arbitration award as the basis for the proposed action.
all but conceding that it could strictly comply with the statute, the Postal
Service argues that compliance with those procedural protections would be
a "sham" and therefore a violation of the CSRA, because it would not provide
Boyd with "meaningful" predeprivation process. In particular, the Postal
Service relies on the framework set out by the MSPB for reviewing the reasonableness
of an agency-imposed penalty in light of a nonexclusive list of relevant
factors. Douglas v. Veterans Admin., 5 M.S.P.R. 280, 306 (1981).
Neither those factors, nor the framework set out in Douglas for
weighing them, represent a statutory mandate under the CSRA. Further, the
arbitration award does not deprive Boyd of his rights under the CSRA to
appeal his demotion to the MSPB.
In an appeal to the MSPB, Boyd would have the right to a full evidentiary
hearing and the right to be represented by counsel. 5 U.S.C. § 7701(a)(1)
and (2). The MSPB has authority to reverse the agency action if Boyd can
show procedural error would likely have a harmful effect on the outcome
of his case before the agency. 5 U.S.C. § 7701(c)(2)(A); see also
Stephen v. Dep't of Air Force, 47 M.S.P.R. 672, 681 (1991). The
MSPB also has the authority to determine what effect, if any, the arbitration
decision should be given if Boyd were to decide to appeal his demotion.
See Aulik v. United States Postal Service, 1 M.S.P.R. 501 (1980);
Westbrook v. Dep't of Air Force, 77 M.S.P.R. 149, 155 (1997). As
the NALC concedes, any relief granted to Boyd by the MSPB would take precedence
over the arbitration award. Thus, we find that implementation of the arbitration
award would not force the Postal Service to violate the CSRA and therefore
is not contrary to public policy.
argues at one point that this language does not actually require that Boyd
receive a reduction in grade or pay because the Postal Service would have
the option of moving him to "an equivalent position outside the bargaining
unit." While it is not clear how this could be consistent with its position
before the arbitrator or this court, we assume that the award in fact requires
the Postal Service to demote Boyd to his previous position or a position
equal to that previous position.
2The Postal Service has abandoned any claim
that the arbitrator exceeded his authority under the CBA, or that the award
would require it to violate Boyd's constitutional due process rights.
See Enertech Elec. Inc. v.
Mahoning County Comm'rs, 85 F.3d 257, 259 (6th Cir. 1996).
3Substantially similar procedural protections
are found in the Postal Service's Employee & Labor Relations Manual (ELM),
which is also adopted as an agency regulation. See 39 C.F.R. §
4Although not the basis of our decision,
there appears to be merit to the argument that the Postal Service waived
its public policy challenge to the arbitration award by failing to raise
it during arbitration. See United States Postal Serv. v. Nat'l Ass'n
of Letter Carriers, No. 02-1159, 2002 WL 31455333 (4th Cir. Nov. 5,
2002) (unpublished disposition). Just as the Fourth Circuit noted, however,
that waiver would not prevent Boyd from raising it in an appeal to the MSPB.
Id. at **2 n.1.
JOINT STATEMENT ON VIOLENCE
AND BEHAVIOR IN THE WORKPLACE
We all grieve for the Royal
Oak victims, and we sympathize with their families, as we have grieved and
sympathized all too often before in similar horrifying circumstances. But
grief and sympathy are not enough. Neither are ritualistic expressions of
grave concern or the initiation of investigations, studies, or research
The United States Postal Service
as an institution and all of us who serve that institution must firmly and
unequivocally commit to do everything within our power to prevent further
incidents of work-related violence.
This is a time for a candid
appraisal of our flaws and not a time for scapegoating, fingerpointing,
or procrastination. It is a time for reaffirming the basic right of all
employees to a safe and humane working environment. It is also the time
to take action to show that we mean what we say.
We openly acknowledge that
in some places or units there is an unacceptable level of stress in the
workplace; that there is no excuse for and will be no tolerance of violence
or any threats of violence by anyone at any level of the Postal Service;
and that there is no excuse for and will be no tolerance of harassment,
intimidation, threats, or bullying by anyone.
We also affirm that every employee
at every level of the Postal Service should be treated at all times with
dignity, respect, and fairness. The need for the USPS to serve the public
efficiently and productively, and the need for all employees to be committed
to giving a fair day's work for a fair day's pay, does not justify actions
that are abusive or intolerant. "Making the numbers" is not an excuse for
the abuse of anyone. Those who do not treat others with dignity and respect
will not be rewarded or promoted. Those whose unacceptable behavior continues
will be removed from their positions.
We obviously cannot ensure
that however seriously intentioned our words may be, they will not be treated
with winks and nods, or skepticism, by some of our over 700,000 employees.
But let there be no mistake that we mean what we say and we will enforce
our commitment to a workplace where dignity, respect, and fairness are basic
human rights, and where those who do not respect those rights are not tolerated.
Our intention is to make the
workroom floor a safer, more harmonious, as well as a more productive workplace.
We pledge our efforts to these objectives.
Signed by the following national
organizations on February 14, 1992
National Association of Letter
D. C. Nurses Association
Federation of Postal Police
National Postal Mail Handlers
National Association of Postal
National Association of Postmasters
of the United States
National League of Postmasters
of the United States
National Rural Letter Carriers
United States Postal