Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 75-C-2932 - Alfred Y. Kirkland, Judge.
Before Fairchild, Chief Judge, Sprecher, Circuit Judge, and Miller, Judge.*fn*
This appeal is from the district court's memorandum opinion and order of April 13, 1977,*fn1 holding that the grievance procedures adopted for nonpreference-eligible postal employees by the United States Postal Service ("USPS") and the American Postal Workers Union ("Union") do not violate either the Postal Reorganization Act ("PRA"), Pub.L. No. 91-375, 84 Stat. 731 (codified at 39 U.S.C. §§ 101 Et seq.) or the due process clause of the Fifth Amendment. We affirm.
Appellants are former employees of USPS*fn2 and members of the Union; neither was a preference-eligible employee.*fn3 They were discharged from USPS while covered by the 1973 National Collective Bargaining Agreement ("National Agreement") between USPS and the Union. Article XVI of the National Agreement provided that "no employee may be disciplined or discharged except for just cause." As permitted by 39 U.S.C. § 1206(b),*fn4 article XV of the National Agreement set forth a series of steps in the grievance procedure which could culminate in binding third-party arbitration.
The Grievance Proceedings
On July 18, 1973, appellant Winston was given a thirty-day written notice of discharge based upon an allegation that on May 26, 1973, he had "threatened to kill a supervisor who was on duty." In accordance with article XV of the National Agreement, Winston filed a grievance with a representative of the Union. The grievance procedure provided for an employee to be represented by a union representative, who, in this case, was the treasurer of the local union. Step 1 of the grievance procedure consisted of an informal discussion between Winston and his Union representative with his immediate supervisor. The grievance was orally denied on July 19, 1973. Subsequently, a step 2A appeal was filed. On August 2, 1973, the grievance was denied after an informal discussion between Winston and his Union representative with a representative of the Chicago Postmaster.*fn5
Winston filed a step 2B appeal which resulted in an "informal hearing on the merits" between the USPS Chicago District Director of Employee and Labor Relations and another Union representative for Winston. At this "hearing," the Postal Inspection Service Investigative Summary was discussed. It consisted of statements of Winston, the supervisor who instituted the charge against him, and four supervisory employees who had witnessed the May 26, 1973, incident. Winston states in this appeal, without contradiction by appellees, that evidence of his witnesses, whose names he had given to the Union representative, was not submitted, that he was not allowed to be present, and that no witnesses were called, interviewed, or subjected to cross-examination. On December 4, 1973, the grievance was again denied.
Pursuant to section 3 of article XV of the National Agreement, Winston requested that the Union demand arbitration of his grievance, but the request was denied.*fn6 Winston was formally discharged on January 8, 1974.
Appellant Cummings was given a thirty-day notice of discharge on August 30, 1973, based on allegations that she had "misappropriated postal funds in the years 1972 & 1973." She followed the same grievance procedures as Winston, with the same result, and was discharged effective March 1, 1974. Her appeal to CSC was, like Winston's, denied. Cummings states, without contradiction by appellees, that she was denied an opportunity to appear, present evidence, and cross-examine adverse witnesses.
The District Court Proceedings
Appellants contended before the district court*fn7 that the grievance procedure of the National Agreement violated both 39 U.S.C. § 1001(b)*fn8 and the due process clause of the Fifth Amendment. Specifically, they alleged that they were discharged without an opportunity for a fair hearing, including the right to confront and cross-examine adverse witnesses and to present evidence of their own to rebut the charges against them.
In its order of April 13, 1977, the district court granted summary judgment to USPS and the Union. It concluded that the legislative history of PRA "makes clear that non-preference eligible employees covered by collective bargaining agreements are limited to grievance procedures (under those agreements) in resolving adverse actions." 432 F. Supp. at 1119. It found that 39 U.S.C. § 1005(a)(2) gives preference-eligible employees alternative remedies of (1) appeal to the CSC for a "trial type" hearing, or (2) the collective bargaining agreement procedure. But it found no alternative remedies for nonpreference-eligible employees on the basis that, under 39 U.S.C. § 1005(a) (1), access to the CSC ends when such access would be inconsistent with the "provisions of any collective-bargaining agreement negotiated on behalf of and applicable to them." The court was not persuaded that 39 U.S.C. § 1001 reflects a Congressional intent that a "trial type" hearing be required before dismissal of nonpreference-eligible employees.
Addressing the constitutional issue, the district court held that postal workers, as federal employees, have a sufficient property interest in continued employment to entitle them to Fifth Amendment protection, but that "the grievance procedure established by the agreement between USPS and the Union satisfies Due Process." 432 F. Supp. at 1121. Citing the plurality opinion by Mr. Justice Rehnquist in Arnett v. Kennedy, 416 U.S. 134, 94 S. Ct. 1633, 40 L. Ed. 2d 15 (1974), the court stated:
Since Congress created the property interest in continued employment in the Act (PRA) and in the same Act set forth the procedure for protection of that interest, this Court may find that employees of USPS were entitled to no Due Process protection beyond that afforded by the collective bargaining agreement . . . .
Nevertheless, the court, assuming that an independent examination of the grievance procedures was required, concluded that due process does not necessarily include a "trial type" hearing and is satisfied where, as here, the grievance procedures provide: (1) notice to the employees of the pending charges; (2) an opportunity to be heard by presenting grievances through a "representative of their own choosing," I. e., the Union; and (3) authority for the representative to bring further proceedings before a neutral arbiter and to be sued if failure to bring the case to an arbiter "was a breach of duty to fairly represent."*fn9
I. Statutory Interpretation Issue
Relying on 39 U.S.C. § 1001(b), appellants argue that Congress specifically provided for the full protection of their right to be heard on any adverse actions. They also argue that the "fair hearing requirement" of section 1001(b) includes "the rights of confrontation and cross-examination of witnesses, and the right to present evidence, as an alternative to grievance procedures."*fn10 This is predicated on their contention that the "fair hearing requirement" is not qualified by or subordinate to any grievance procedures negotiated by USPS and the Union through collective bargaining. Nevertheless, we are satisfied that legislative history clearly demonstrates Congressional intent that nonpreference-eligible postal employees who are covered by a collective bargaining agreement are to be limited solely to the grievance procedures of that agreement in appealing adverse actions.
Legislative History of PRA
The legislative history of the PRA provides a unique source for determining the intent of Congress underlying its postal reform since, as the House Post Office and Civil Service Committee's report on H.R. 17070*fn11 observes: "Rarely has any subject received as much careful and intensive consideration by a committee of the Congress as this committee has given to the very complex and important subject of postal reform." H.R.Rep. No. 91-1104, 91st ...