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November 8, 1984


The opinion of the court was delivered by: GESELL

This action was brought by a discharged postal worker, Joseph Gordon, and his union seeking reinstatement, back pay and other relief on grounds that the discharge violated the contract between the union and the Postal Service and also violated the First Amendment rights of Gordon and his union. The case is before the Court on defendant's second motion for summary judgment and plaintiff's cross-motion for partial summary judgment, which have been fully briefed by the parties.

 In disposing of defendant's first motion for summary judgment, the Court granted judgment for the defendant on plaintiffs' claim of a contract violation but denied summary judgment on plaintiffs' constitutional claim, stating it appeared to the Court "that a number of material facts remain in dispute, including (i) whether the firing was based on speech or on underlying conduct described in the speech, (ii) whether the government was actually harmed by the speech, and (iii) whether plaintiff Gordon knew or should have known that the speech would harm the government." *fn1" (Order of September 7, 1984 at 1-2.) Defendant then proposed to assume for the purposes of summary judgment that the discharge was based on speech, not the underlying conduct, and accordingly to seek summary judgment on the remaining issues, identified as (ii) and (iii) above. It was understood that if defendant lost again on summary judgment, and if plaintiff won its own summary judgment motion on those issues, the only remaining issue would be whether Gordon's speech was a substantial or motivating factor in the discharge decision. See Mt. Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 50 L. Ed. 2d 471, 97 S. Ct. 568 (1977). Plaintiffs agreed to this procedure, and subsequently filed a cross-motion for partial summary judgment. Thus these motions focus on whether Gordon's speech was protected by the First Amendment, *fn2" and if so, whether his employer's interests outweigh his right to free expression because of the harmful effects of his speech.

 I. The Background

 Joseph V. Gordon was an employee of the Postal Service for 11 1/2 years in Royal Oak, Mich., until he was fired on July 7, 1982. While an employee, he received several commendations and monetary awards from the Postal Service, including an award for heroism in 1981 for putting out a dangerous fire that resulted from a collision between a car and a mail truck. Gordon was a steward in Area Local 480-481 of his union and was editor of the local's newspaper, The 480-481 Communicator, for which he wrote a regular column.

 His column in the May 1983 issue was entitled "Workers of the World Unite. . . ." The column's theme was the need to persuade non-members to join the union by "tactful intelligent" efforts rather than by "strong arm" tactics. After suggesting various benefits of joining the union that could be brought up in conversation with non-members, the column stated:

I was motivated to write this article at this time by a recent discovery that I made at work. While working third class letters a few weeks ago I came across a bundle of letters that were being sent from Congressman Phillip Crane, a Republican from Illinois, the return address simply stated: Congressman Phillip Crane, National Right to Work Committee. Well, naturally I was curious just what the Congressman was trying to communicate under such a dubious association with the right to work committee. My curiosity did not have long to wait because one of the letters was not sealed and the contents fell out as I was sorting the mail. I could not help but seeing just what was inside. I was amazed to find that the Congressman was sending out petitions asking for help in an attempt to organize a legislative effort to support a bill that would restrict Labor Unions from organizing workers through what he called strong arm tactics.

 The column went on to conclude that "it has been painfully evident that we have many enemies in Congress and we can ill afford to have them attempt to organize efforts to further reduce our ability to improve our working conditions. . . . Ask your stewards who the non-members are in your office and make a tactful intelligent effort to sign them up, but don't use 'strongarm' tactics, it might upset Phillip Crane."

 The newspaper has a circulation of about 2,100. It is sent to members and retired members of Local 480-481 and to the offices of other postal union locals.

I was made aware of the [Crane] petition by a friend who was asked to sign it. He later in turn asked me about a right of Congressmen to use the privilege of the free mail to distribute such material. I didn't think it was right for postal workers to have to handle such mail and fabricated the story about finding the "Crane" mail myself. I did not see, personally, the petition but I believe it existed. The irony that I was trying to stress as a representative of the labor movement and especially the American Postal Workers Union, is that there are rich people in this country that want to get richer off the labor force.

 Immediately after he got off work that shift, Gordon wrote a retraction that was published in the next month's issue of The 480-481 Communicator. *fn3" The retraction referred to the described incident as "a fabrication for dramatization" and added, "I attempted to show the irony of the labor force (APWU) handling mail such as this, it was a mistake. It is illegal to disclose the contents of mail even if the mail is meant for further distribution."

 The day after his meeting with the supervisor, the Postal Service informed Gordon by a "Notice of Removal" that he was to be removed from the Postal Service on July 7, 1983. The notice described his May 1983 column and said:

You have violated Part 115 of the Domestic Mail Manual, specifically Part[s] 115.2 and 115.5 which prohibits the reading, divulging, or disclosing of the contents of mail. Such reading and publication of the contents is also considered unacceptable and a violation of Part [661.53] *fn4" of the Employee and Labor Relations Manual.

 Gordon and his local union grieved the dismissal. The final decision on the grievance stated that Gordon's "action in the instant grievance violated the integrity of the mail service and part 115.5 of the DMM. Accordingly, ...

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