Opposition Brief — American Postal Workers Union v. United States Postal Service

Supreme Court, U.S.

FILED

FER F 1986

No. 85-990 JOSEPH F. SPANIOL, JR.

CLERK

———

In the Supreme Court of the Hnited States

OCTOBER TERM, 1985

AMERICAN POSTAL WORKERS UNION, AFL-CIO,

NEw LONDON CONNECTICUT AREA LOCAL, ET AL..

PETITIONERS

V.

UNITED STATES POSTAL SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

MEMORANDUM FOR THE RESPONDENT

IN OPPOSITION

CHARLES FRIED

Solicitor General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

TABLE OF AUTHORITIES

Cases:

Buffalo Forge Co. v. United Steelworkers,

gg ee ere

Connick v. Myers, 461 U.S. 138 .........

Johnson vy. Bergland, 586 F.2d 993 ......

Laird wv. Tate, G6 U.S. 1 occ cece scaes

Purolator Armored, Inc. v. NLRB,

Pe eee PE Se RRA TRS EEN SEM Oe READ

Sampson v. Murray, 415 U.S. 61 ........

BE WV, Bee, SIO U.S, FOS ccc cicsscessss

Steelworkers v. American Mfg. Co.,

BES i PR rick take nc hbaedepine ee

Steelworkers v. Enterprise Corp.,

5 iS ner Srereenns werner ems

Weinstein v. Bradford, 423 U.S. 147 .....

Constitution:

Sf ge ee re

Inu the Supreme Court of the Mnited States

OCTOBER TERM, 1985

No. 85-990

AMERICAN POSTAL WoRKERS UNION, AFL-CIO,

NEw LONDON CONNECTICUT AREA LOCAL, ET AL.,

PETITIONERS

V.

UNITED STATES POSTAL SERVICE

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

MEMORANDUM FOR THE RESPONDENT

IN OPPOSITION

Petitioners seek to reinstate a preliminary injunction bar-

ring the Postal Service from placing an employee on non-

pay status pending arbitration proceedings concerning the

Postal Service’s decision to discipline him, even though the

employee has served the two-week suspension imposed by

the Postal Service.

1. a. This dispute arose from a Postal Service decision to

eliminate 14 positions at the New London, Connecticut,

Post Office (Pet. App. 3a). Petitioners publicized their dis-

agreement with this action by writing to elected officials and

contacting local newspapers (ibid.), actions that are not the

subject of any disciplinary action. Petitioners, however,

also sent a letter, signed by petitioner Danko, the president

of the local union, to one of the Postal Service’s most

(1)

2

important local customers, Mystic Color Labs. The letter

stated: “The purpose of this letter is to make you aware of

the fact that large amounts of your film mailers are not

being processed for outgoing dispatch or incoming delivery.

This situation has been going on for some time now. Postal

management will not make you aware of this, in fact they

would most likely deny it if questioned about it.” /d. at

3a-4a. The letter blamed the delays on the elimination of the

14 positions (id. at 4a). After an investigation, the Postal

Service proposed to dismiss petitioner Danko on the

ground that mailing this letter to a customer violated Dan-

ko’s duty to avoid actions that adversely affect public confi-

dence in the Postal Service (ibid.).

Petitioner Danko filed a grievance and requested arbitra-

tion pursuant to the Postal Workers’ collective bargaining

agreement (Pet. App. 6a). Under the collective bargaining

agreement, invocation of the grievance procedures pre-

vented the Postal Service from dismissing Danko, but

placed him in nonpay, nonduty status pending resolution of

his claims (id. at Sa).

b. On July 23, 1984, petitioners brought this suit in the

United States District Court for the District of Connecticut,

seeking a preliminary injunction barring the Postal Service

from placing Danko on nonpay status pending the results of

the arbitration process (Pet. App. 6a). The district court

concluded, under Sampson v. Murray, 415 U.S. 61 (1974),

that Danko’s financial difficulties were not sufficient to

establish the irreparable injury required to obtain an injunc-

tion (Pet. App. 20a) The court concluded, however, that

Danko’s letter concerned a matter of public concern and

that it was therefore protected by the First Amendment (id.

at 22a). Based on that conclusion, the court held that “the

failure to enjoin Danko’s discharge would result in a chil-

ling of his and the other employees’ exercise of their first

amendment rights; thus the plaintiffs have satisfied the

3

irreparable harm requirement” (id. at 23a), and that “plain-

tiffs have shown a likelihood of success on their claim that

Danko’s discharge was unlawful” (id. at 24a). Finally, not-

ing that injunctions should be issued pending arbitration

only if the failure to issue an injunction would deprive the

plaintiffs of an effective remedy if they prevailed at arbitra-

tion, the court concluded that “the failure t» issue an injunc-

tion would frustrate the arbitration process because the

arbitrator would be unable to remedy the chilling effect on

the employees’ exercise of their first amendment rights” (id.

at 25a).

The court of appeals reversed (Pet. App. la-iSa). While

finding the letter to the Postal Service’s customer “at least in

part, about a matter of public concern,” the court of appeals

held that petitioners had failed to articulate a “ ‘specific

present objective harm or a threat of specific future harm’ ”

(id. at 12a, quoting Laird v. Tatum, 408 U.S. 1, 13-14

(1972)). Rather, the court of appeals found, the plaintiffs

“merely make the conclusory assertion that Danko’s dis-

charge has ‘chilled the will of the postal workers in Connec-

ticut, and their elected officials’ ” (Pet. App. 13a). More-

over, the court concluded, “we fail to understand how a

chilling of the right to speak or associate could logically be

thawed by the entry of an interim injunction, since the

theoretical chilling of protected speech and union activities

stems not from the interim discharge, but from the threat of

permanent discharge, which is not vitiated by an interim

injunction” (ibid.). Finally, the court determined that,

rather than aiding the arbitration process, the injunction

requiring “the Postal Service to keep Danko on the job

during the interim period would frustrate that provision of

the collective bargaining agreement that specifically autho-

rizes placing an employee on nonpay status pending the

outcome of a grievance and arbitration proceeding” (id. at

1Sa).

4

ec. Atterthe court of appeals’ decision, the Postal Service

unilaterally reduced Danko’s punishment to a two-week

suspension (Pet. 9).' Petitioners did not seek a stay of the

court of appeals’ mandate pending their petition to this

Court for further review, and the Postal Service has advised

us that Danko’s two-week suspension was served in Novem-

ber 1985. The arbitration hearing was concluded on Janu-

ary 22, 1986.

2. Further review is not warranted. Because petitioner

Danko has served his suspension and the arbitration pro-

cess has now substantially advanced, this controversy will

almost certainly become moot before it could be adjudi-

cated by this Court, if it is not already moot. In any event,

the court of appeals’ decision is based upon, and is fully

consistent with, this Court’s guidelines for protecting the

First Amendment rights of public employees and, contrary

to petitioners’ claims, does not conflict with the decisions of

any other court of appeals.

a. Since the Postal Service reduced petitioner Danko’s

punishment to a suspension, which he has already served,

the issue before the lower courts—— whether to issue a preli-

minary injunction barring the Postal Service from placing

petitioner Danko on nonpay status pending arbitration — is

no longer in controversy. It is not at all clear what relief

petitioners seek at this point.’ Furthermore, the arbitration

'There is absolutely no support for petitioners’ suggestion (Pet. 19)

that the Postal Service's reduction of petitioner Danko’s sanction was

deliberately withheld until the court of appeals’ decision.

*Petitioners argue (Pet. 15-16) that what matters “is whether the

terminated employee is on the job and and thus able to pay his bills or

off the job without such an ability while some tribunal wrestles with the

legal niceties of the dispute.” No injunction is now needed to put

petitioner Danko “on the job” or prevent the Postal Service from

removing him from his job.

Petitioners suggest without explanation (Pet. 19) that they are

entitled to declaratory relief and that further court proceedings are

5

hearing has concluded. We are informed that, ordinari!

arbitration decisions are rendered within 60 days after the

hearing is closed and that this dispute does not involve

unusual circumstances likely to cause delay. After the arb)

trator’s decision, in the event petitioners remain aggrieved,

the dispute would present substantially different legal ques-

tions. See, e.g., Steelworkers vy. Enterprise Corp., 363 U.S.

593, 596-599 (1960).

Petitioners argue that this case is not moot because there

is“ * “a reasonable expectation that the same complaining

party [will] be subjected to the same action again” * ™ since

they may write more letters to Postal Service customers

(Pet. 21 (emphasis in original), quoting SEC v. Sloan, 436

U.S. 103, 109 (1978), and Weinstein v. Bradford, 423 U.S.

147, 149 (1975)). However, the arbitrator will soon deter-

mine petitioners’ rights under their coilective bargaining

agreement with the Postal Service, and, after the arbitration

decision is rendered, the propriety of writing letters to Pos-

tal Service customers and of disciplining employees who

take such action should be clear. It is difficult to see what

benefit there is to any party in continuing to litigate this

preliminary injunction action.

b. Moreover, the court of appeals’ decision is correct.

While public employees do not sacrifice their rights as

citizens to speak upon matters of public concern, protection

of these rights need not cause “intrusive oversight by the

judiciary in the name of the First Amendment.” Connick vy.

Mvers, 461 U.S. 138, 146 (1983). Here the punishment was

based solely upon a letter directed to the Postal Service's

customer attributing alleged delays of that customer's mail

warranted to consider that issue. [t is clear, however, that such relief

would be inappropriate since it would conflict with the arbitration

process.

6

to the managerial decision to cut back the work force at a

particular post office. Even assuming arguendo that this

kind of managerial decision rises to the level of a public

concern, as the court of appeals somewhat reluctantly con-

cluded (Pet. App. 12a), the court of appeals was certainly

correct in rejecting petitioners’ vague “chilling argument,”

which amounted to little more than a conclusory assertion.

A preliminary injunction barring discharge of a govern-

ment employee should be issued only “in the genuinely

extraordinary situation.” Sampson v. Murray, 415 U.S.

61, 92 n.68 (1974). Lest the government be precluded from

ever taking interim disciplinary steps against its employees,

public employees must articulate specific injuries to set

forth a claim based on chilling of First Amendment rights.

See Laird v. Tatum, 408 U.S. 1, 13-14 (1972). Finally, the

strong policy against premature judicial intervention in

labor disputes, especially where the parties have agreed to

binding arbitration, strongly militates against the issuance

of the injunction. See, e.g., Buffalo Forge Co. v. United

Steelworkers, 428 U.S. 397 (1976); Steelworkers v. Ameri-

can Mfg. Co., 363 U.S. 564 (1960).

c. Contrary to petitioners’ claim (Pet. 10-14), there is no

conflict in the circuits. In Johnson v. Bergland, 586 F.2d

993, 998 (4th Cir. 1978), the court found irreparable injury

in part because “without the injunction, the government

would be free to name a successor to Johnson * * *, and

Johnson would have no means of being reinstated if he

should prevail at trial.” That is not the case here.’ The other

case petitioners cite, Purolator Armored, Inc. v. NLRB,

‘The court in Johnson also said that “[v hiolations of first amendment

rights constitute per se irreparable injury” (S86 F 2d at 995). Whatever

the merits of that proposition, the court of appeals here did not disagree

with it. concluding instead that petitioners had tailed to articulate a

First Amendment violation (Pet. App. |2a-13aj

>

764 F.2d 1423 (i lth Cir, 1985), did not involve a prelimi-

nary injunction or a First Amendment claim, and is

obviously not in conflict with the Second Circuit's decision

in this case.

It is therefore respectfully submitted that the petition for

a writ of certiorari should be denied.

CHARLES FRIED

Solicitor General

FEBRUARY 1986

DO}J-1986 02