Malone v. United States Postal Service

526 F.2d 1099, 90 L.R.R.M. (BNA) 3287, 1975 U.S. App. LEXIS 11514
CourtCourt of Appeals for the Sixth Circuit
DecidedDecember 11, 1975
DocketNo. 74-2037
StatusPublished
Cited by34 cases

This text of 526 F.2d 1099 (Malone v. United States Postal Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malone v. United States Postal Service, 526 F.2d 1099, 90 L.R.R.M. (BNA) 3287, 1975 U.S. App. LEXIS 11514 (6th Cir. 1975).

Opinions

McCREE, Circuit Judge.

This is an appeal from a grant of summary judgment for the defendants in a suit by a former Postal Service employee for reinstatement, back pay and seniori[1101]*1101ty status, and attorney’s fees. Jurisdiction is conferred by 39 U.S.C. §§ 409 and 1208. Two questions are presented on appeal: (1) whether the grievance and arbitration procedures authorized in the collective bargaining agreement between the Postal Service and the national postal unions are either contrary to the Postal Reorganization Act, 39 U.S.C. § 1001, or violative of due process; and (2) whether during the grievance and arbitration procedures authorized in the collective bargaining agreement, a Postal Service employee is entitled to be represented by someone other than the duly elected collective bargaining representative.

We hold that neither the Postal Reorganization Act nor due process precludes a governmental agency and the union that represents its employees from including a grievance arbitration provision in their collective bargaining agreement where there is also an alternative procedure that provides a trial type hearing. Further, we determine that Congress did not intend to provide that a Postal Service employee may elect to be represented by someone other than the exclusive collective bargaining agent in grievance arbitration proceedings under the collective bargaining agreement. Accordingly, the district court’s judgment for appellees will be affirmed.

Appellant, Walter Malone, was employed as a mail handler in the Louisville Post Office, where he was a preference eligible nonprobationary veteran with approximately eighteen years of federal service. Appellees are the United States Postal Service (“the Postal Service”) and Local 304 of the National Post Office Mail Handlers, Watchmen, Messengers, and Group Leaders Division of the Laborers’ International Union of North America (“the Union”). The Union has been recognized in accordance with 39 U.S.C. § 1203 as the exclusive representative of the employees in the mail handlers unit. Malone was not a member of the Union, although it represented his employment unit for the purposes of collective bargaining. Pursuant to 39 U.S.C. § 1206 the Postal Service and the Union executed a collective bargaining agreement which included a grievance and arbitration provision. Article XVI, Section 6 of the agreement provided:

SECTION 6. VETERANS’ PREFERENCE. A preference eligible is not hereunder deprived of whatever rights of appeal he may have under the Veterans’ Preference Act, but he must exercise his option before invoking the grievance procedure, and if he appeals under the Veterans’ Preference Act, he thereby waives all redress under this Agreement.

On May 6, 1972 Malone committed what the Postal Service regarded as an act of insubordination, and on May 12 he was notified of the Service’s intention to discharge him for failure to obey orders. The notice advised Malone of the reasons upon which the discharge was to be based: his refusal to follow his supervisor’s instructions and orders on May 6, and his past disciplinary record which included five previous suspensions for insubordination. The notice was read aloud to Malone when he refused to accept a copy of it. The notice informed him of his rights to proceed under the grievance arbitration provision of the collective bargaining agreement, and quoted Section 6, supra, concprning rights of appeal for preference eligible veterans stating:

Your attention is further directed to the fact that, in accordance with Section 2 of Article XV of the National Agreement, you have 5 days from the date of this notice in which to file a grievance concerning this action and therefore you must exercise the option specified in Section 6 [the Veterans’ Preference Section] above within said period and inform the undersigned of your option.

Malone did not appeal to the Civil Service Commission under the Veterans’ Preference Act. Instead he filed a Step 1 grievance in accordance with the procedures specified in the collective bargaining agreement. In Step 1, the em[1102]*1102ployee, who may be accompanied by his steward or a union representative, must discuss his complaint with his supervisor within 5 days after learning of its cause.1 Malone, accompanied by his union representative, timely discussed his grievance with the operations manager, who denied the grievance.

The Union has the right to appeal the denial of a Step 1 grievance to Step 2 by making a written appeal to the head of the installation.2 The Union timely filed a written Step 2 grievance, which was also denied.

The next stage for grievances involving disciplinary actions is Step 2b, an appeal in writing to the Director of Employee Relations in the Regional Office, who is required to hold a hearing “at the management level higher than the installation level.” If the grievance is denied again, the Union can refer the grievance to arbitration.3

The Union timely filed a written grievance with the Regional Director. Approximately 6 months later, on January 10, 1973, Malone informed the Postal Service that Attorney Cecil Blye was his representative in the pending proceedings. On February 2, 1973, the Postal Service replied that only an authorized agent of the Union, the exclusive bargaining representative, could represent Malone. On February 20, representatives of the Union and the Postal Service met, and appellant’s grievance was denied. Malone was not given notice of this meeting, and was not present. On February 22, the Regional Director sent a letter to the Union denying Malone’s grievance. The Union did not elect to arbitrate.

On May 11, 1973, the Postal Service informed Malone by letter that he had been dropped from the rolls and removed from the Service. Malone asserts that he never received notice from the Union that his grievance had been denied.

Malone contends that at some point in the grievance proceedings he was entitled to a trial type hearing with the opportunity to be present, to meet the evidence against him, and to confront and to cross-examine witnesses. He also contends that he was entitled to have his attorney, not the Union, represent him in the grievance proceedings.

The district court held that Malone had “several opportunities to personally present his side of the controversy” and [1103]*1103that he had been given a “fair hearing satisfying the Postal Reorganization Act, due process, and the collective bargaining agreement. It stated that under Arnett v. Kennedy, 416 U.S. 134, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974),

an employee, like Mr. Malone, has no “property” interest in his job other than that which he is granted by his contract, he has no due process rights in connection with his job outside of those guaranteed by his contract.

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Cite This Page — Counsel Stack

Bluebook (online)
526 F.2d 1099, 90 L.R.R.M. (BNA) 3287, 1975 U.S. App. LEXIS 11514, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malone-v-united-states-postal-service-ca6-1975.