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Federal District Court Case regarding Postmaster-USPS' Attempt to Vacate (Overturn) Arbitration Award |
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Joint Statement on Violence and Behavior in the Workplace (note: APWU did not sign the pledge) |
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Arbitration AWARD: the grievance is sustained and the Employer directed to implement the remedy requested by the Union that Postmaster Derrick Hatten be removed from the Postal Service. Date of Award: April 13, 2001 In another NALC/ USPS case: Court Upholds Arbitration Award Demoting Supervisor |
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MSPB Reinstates Postmaster Removed from the Postal Service By Arbitrator posted 10/13/03 |
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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. Statement of National League of Postmasters President Steve Lenoir (www.postmasters.org) USPS APPEALS Arbitration Award UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT UNITED STATES POSTAL SERVICE, Plaintiff-Appellee, v. No. 02-1159 NATIONAL ASSOCIATION OF LETTER CARRIERS, AFL-CIO, Defendant-Appellant. Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, District Judge. (CA-01-1447-JFM) Argued: September 25, 2002 Decided: November 5, 2002 Before WILKINS, MICHAEL, and KING, Circuit Judges. Reversed and remanded by unpublished per curiam opinion. COUNSEL 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). OPINION PER CURIAM: 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. I. 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. II. 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.* III. 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). Courts Upholds Demotion of Supervisor posted June 15, 2003 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2003 FED App. 0180P (6th Cir.) File Name: 03a0180p.06 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
Appeal from the United States District Court _________________ RALPH 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. I. The 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 station manager. NALC 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). After 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:
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) Seeking 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. The 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. § 7513.(2) II. The 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). One 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 III standing. Although 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. This 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)). The 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). The 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). All 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. Next, 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. AFFIRMED.
1NALC 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. § 211.2(a)(2) 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 projects. 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 Carriers D. C. Nurses Association Federation of Postal Police Officers National Postal Mail Handlers Union National Association of Postal Supervisors National Association of Postmasters of the United States National League of Postmasters of the United States National Rural Letter Carriers Association United States Postal Service |