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June 6, 2005.


The opinion of the court was delivered by: REGGIE B. WALTON, District Judge


This matter is before the Court on the American Postal Workers Union's ("APWU" or "the plaintiff") Application for Temporary Restraining Order and Motion for Preliminary Injunction and Memorandum of Points and Authorities in Support Thereof ("Def.'s Mem.") [D.E. # 12]. The APWU's request for injunctive relief is based upon its underlying Petition to Compel Arbitration ("Petition") [D.E. # 1] in which it seeks to compel the United States Postal Service ("USPS") to arbitrate whether the USPS is obligated to make voluntary early retirement available to eligible employees whose names have been forwarded to the USPS by the AWPU after the February 2, 2004 deadline imposed by the USPS. Def.'s Mem., Exhibit ("Ex.") 18.*fn1 The USPS has moved to dismiss the APWU's Petition and simultaneously opposes the motion for injunctive relief. The narrow issue that is the subject of this opinion is whether the dispute between the parties must be submitted to arbitration. The answer to this question necessarily turns on whether a current operative agreement reached between the parties requires that the subject dispute be submitted to arbitration. Particularly, whether provisions in a Memorandum Agreement negotiated in 2002, which provided for arbitration, survived a subsequent 2003 Memorandum Agreement that resolved disputes arising from the 2002 Agreement. The Court answers this question in the affirmative and therefore concludes that the parties' current dispute must be submitted to arbitration on an expedited basis.

I. Background

  The APWU and the USPS are parties to collective bargaining agreements establishing the terms and conditions of employment for more than 300,000 employees of the USPS. Memorandum of Points and Authorities in Support of Petitioner's Application for a Temporary Restraining Order and Motion for Preliminary Injunction and in Opposition to Defendant's Motion to Dismiss ("Pet.'s Mem.") at 5. Collectively, the APWU represents approximately 309,000 postal employees who work in various classifications and are covered by three individual and separately negotiated collective bargaining agreements. Id.; Memorandum of Points and Authorities in Support of Defendant's Consolidated Motion to Dismiss and Opposition to Plaintiff's Petition to Compel Arbitration ("Def.'s Mem.") at 4. The three collective bargaining agreements are: (1) the National Agreement covering approximately 307,000 employees; (2) the Information Technology and Accounting Service Centers ("IT/ASC") agreement covering approximately 1400 employees; and (3) the Operating Services agreement covering approximately 80 employees. Def.'s Mem. at 4. In 2002, the USPS determined that it needed to reduce the workforce of the employees covered by the collective bargaining agreements because of declining mail volume, automation, and new operating procedures. Pet.'s Mem. at 5; Def.'s Mem. at 5. To further their goal of reducing the workforce, the parties entered into an agreement known as the Memorandum of Understanding Re: Excessing ("2002 MOE"). Def.'s Mem. at 5. This agreement essentially provided that the USPS would request permission from the Office of Personnel Management ("OPM") to offer eligible employees covered by the National Agreement the opportunity to take voluntary early retirement. Id. However, after implementation of the 2002 MOE, disputes arose and the APWU filed a grievance raising two issues: (1) did the USPS violate the 2002 MOE by denying some eligible employees the opportunity to retire and (2) did the USPS violate the 2002 MOE by not offering voluntary early retirement to employees covered by the IT/ASC and Operating Services collective bargaining agreements? Id. The USPS rejected the grievance, which prompted the APWU to petition this Court for injunctive relief that would require the USPS to submit the parties' dispute to expedited arbitration. Id. at 6. However, before a ruling was issued, the parties resolved their dispute and entered into the 2003 Memorandum of Agreement Re: Voluntary Early Retirement ("2003 MOA"). Id.

  The parties are again before this Court regarding a dispute that has arisen with regard to the 2003 MOA. Specifically, the current dispute concerns whether the USPS is obligated to make voluntary early retirement available to eligible employees whose names have been forwarded to the USPS by the AWPU after the February 2, 2004 deadline. Pet.'s Mem., Ex. 18. Despite the APWU's attempts to submit additional names for consideration, the USPS has declined to accept any additional names that were untimely submitted and has maintained this position since February 6, 2004. Id. at 8. After several failed attempts to convince the USPS to allow the APWU to submit additional names, on November 10, 2004, the APWU invoked the Administrative Dispute Resolution Procedures ("ADRP") included in the 2002 MOE and requested that the USPS agree to expedited arbitration if the parties could not resolve the dispute. Pet.'s Mem. at 11 (citing Exhibit ("Ex.") 13 (Declaration of Greg Bell ¶ 22)). Consequently, the APWU "is seeking an arbitrator's decision that certain people it represents must be provided the opportunity to qualify for voluntary early retirement." Pet.'s Mem. at 4. However, for purposes of this motion, the APWU proffers that it is not seeking a ruling on the merits from this Court, but rather, is seeking an order to compel arbitration. Id.

  II. Legal Standard for Injunctive Relief

  In determining whether to grant a motion for a preliminary injunction, the Court must consider four factors: (1) whether the petitioner has demonstrated that there is a substantial likelihood that it will prevail on the merits of its claims; (2) whether the petitioner has shown that it would be irreparably harmed if injunctive relief is not awarded; (3) whether the issuance of injunctive relief would not "substantially harm" the other party; and (4) whether awarding the relief is in the public interest. Al-Fayed v. CIA, 254 F.3d 300, 303 (D.C. Cir. 2001); Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977) (citing Virginia Petroleum Jobbers Ass'n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958)). These factors should be balanced against one another and "[i]f the arguments for one factor are particularly strong, an injunction may issue even if the arguments in other areas are rather weak." CityFed Fin. Corp. v. Office of Thrift Supervision, 58 F.3d 738, 747 (D.C. Cir. 1995).

  Issuance of an affirmative injunction requiring arbitration is appropriate in circumstances where the underlying dispute is subject to mandatory arbitration and the employer, rather than seeking arbitration of its grievance, is "intefer[ing] with and frustrat[ing] the arbitral process by which the parties had chosen to settle a dispute." Buffalo Forge Co. v. United Steel Workers of Am., AFL-CIO, 428 U.S. 397, 407 (1976). The Court must also consider:
whether issuance of an injunction would be warranted under ordinary principles of equity — whether breaches are occurring and will continue, or have been threatened and will be committed; whether they have caused or will cause irreparable injury to the [moving party]; and whether the [moving party] will suffer more from the denial of an injunction than will the [opposing party] from its issuance.
Boys Mkts. Inc. v. Retail Clerks Union, Local 770, 398 U.S. 235, 254 (1970) (quoting Sinclair Ref. Co. v. Atkinson, 370 U.S. 195, 228 (1962).

  "The law compels a party to submit [its] grievance to arbitration only if [it] has contracted to do so." Gateway Coal Co. v. United Mine Workers of Am., 414 U.S. 368, 374 (1974); Abrams v. Communication Workers of America, 59 F.3d 1373, 1382 (D.C. Cir. 1995); Hammontree v. NLRB, 925 F.2d 1486, 1517 (D.C. Cir. 1991). Thus, "whether or not [a party is] bound to arbitrate . . . is a matter to be determined by the Court on the basis of the contract entered into by the parties." Atkinson v. Sinclair Ref. Co., 370 U.S. 238, 241 (1974). Accordingly, "[t]he role of the courts is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract, and the judicial task is limited to construing the agreement for that purpose." Blake Constr. Co. v. Laborers' Int'l Union of N. Am., AFL-CIO, 511 F.2d 324, 327 (D.C. Cir. 1974) (quoting United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 568 (1960).

  III. Analysis

  A. The Timeliness of the Petition to Compel Arbitration

  The USPS contends that the APWU's petition to compel arbitration is untimely. Def.'s Mem. at 9. "An action to compel arbitration is governed by the six-month limitations period set forth in section 10(b) of the National Labor Relations Act ("NLRA")." 29 U.S.C. § 160(b); United Rubber, Cork, Linoleum and Plastic Workers of Am., AFL-CIO, CLU Local 164 v. Pirelli Armstrong Tire Corp., 104 F.3d 181, 183 (8th Cir. 1997). A union's cause of action to compel arbitration accrues once the employer takes an unequivocal position that it will not arbitrate. Associated Brick Mason Contractors, Inc. v. Harrington, 820 F.2d 31, 38 (2d Cir. 1987); McCreedy v. Local Union 971, UAW, 809 F.2d 1232, 1237 (6th Cir. 1987) (citing Fed'n of Westinghouse Indep. Salaried Unions v. Westinghouse Elec. Corp., 736 F.2d 896, 902 (3d Cir. 1984). The USPS contends that the APWU was "on notice" that it would not accept additional names for consideration of voluntary early retirement after February 6, 2004, and in fact the APWU knew by as early as January 9, 2004, that it could not comply with the February 6, 2004 deadline to submit additional names. Def.'s Mem. at 10. Based on these circumstances, the USPS concludes that the APWU's Petition is time-barred. Id.

  However, the APWU posits that "[a]ssuming arguendo, that the application of the six month statute of limitations as set forth in § 10(b) of the [NLRA] is appropriate, the APWU's [Petition] is nonetheless timely." Pet.'s Mem. at 28. It further contends that "the refusal to accept additional eligible employees into the voluntary early retirement program does not constitute an unequivocal refusal to arbitrate. Id. at 29. Moreover, the APWU notes that on December 20, 2004, the Postal Service notified it that the dispute had been placed on the national arbitration docket. Id. (citing Bell Decl. ¶ 23). The APWU therefore concludes that its cause of action did not accrue until the USPS unequivocally refused to agree to expedited arbitration, which it alleges did not occur until after February 1, 2005. Id. at 30 (citing Bell Decl. ¶ 26).

  Upon review of the various correspondence between the parties, this Court disagrees with the USPS's claim that it took an unequivocal position not to submit the parties' dispute to arbitration as early as January or February of 2004. While the USPS did inform the APWU that it would not accept additional names after the February 4, 2004 deadline, this was not synonymous with an "unequivocal position that it would not arbitrate" the matter. McCreedy, 809 F.2d at 1237; see Harrington, 820 F.2d at 38. Furthermore, the USPS's December 2004 letter to the APWU, which stated that the dispute had been placed on the national arbitration docket, is also contrary to its assertion that its position regarding arbitration was clear since at least February 2004. Moreover, counsel for the APWU indicated at the hearing on this matter held on May 24, 2005, that in the months following February 2004, the parties were attempting to "work things out." The USPS did not dispute this point, but rather maintained its position that it had indicated that it would not accept additional names. Finally, assuming that the USPS's November 5, 2004 letter to the APWU, see Def.'s Mem., Ex. B of Ex. B, could be construed as an unequivocal denial to submit the matter to arbitration, the filing of this action would fall within the six-month ...

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