At page 825 Analyzing public trust and employee misconduct in postal service17 citing cases“but are also the clear dictates of common sense.”
- Iowa Elec. Light & Power Co. v. Local Union 204 of the Int'l Bhd. of Elec. Workers (Afl- Cio) Grievant Don Schott, Local Union 204 of the Int'l Bhd. of Elec. Workers v. Iowa Elec. Light & Power Co., 834 F.2d 1424 (8th Cir. 1987).published (arbitrator's reinstatement of embezzling mailman vacated on public policy grounds, although public health or safety not threatened)
- Iowa Elec. Light & Power Co. v. Local Union 204 of the Int'l Bhd. of Elec. Workers, 834 F.2d 1424 (8th Cir. 1987).published (arbitrator’s reinstatement of embezzling mailman vacated on public policy grounds, although public health or safety not threatened)
- Religious Objections to the Postal Serv. Oath of Off. (OLC 2005).published(Any postal position which handles mail is one entrusted with items of importance and value by the public. Envelopes containing govern- ment checks or items which are insured disclose to all who see them the valuable it…)
- The City of Aurora v. The Ass'n of Prof'l Police Officers, 2019 IL App (2d) 180375.published(postal worker terminated for embezzling postal funds; offense went to heart of his responsibilities and violated public trust placed in postal branch)
- The Illinois State Toll High. Auth. v. Int'l Bhd. of Teamsters, Local 700, 2015 IL App (2d) 141060.published(postal worker terminated for embezzling postal funds, violating public trust)
- City of Boston v. Boston Police Patrolmen's Ass'n, 23 Mass. L. Rptr. 579 (Mass. Super. Ct. 2008).published(upholding the district court’s decision to vacate an arbitration award reinstating a postal employee who embezzled postal funds in part because “the [public] policies . . . are not only defined by positive law, but are…)
- City of Highland Park v. Teamster Local Union No. 714, 828 N.E.2d 311 (Ill. App. Ct. 2d Dist. 2005).publishedIn DuBose, such an implication arose from (1) the extensive and “comprehensive legislative scheme” that served a vital state interest (DuBose, 173 Ill. 2d at 315 ) and (2) the fact that the misconduct “ ‘went to the heart of the worker’s r…
- City of Lynn v. Thompson, 737 N.E.2d 475 (Mass. App. Ct. 2000).publishedThe jury in that case found that Thompson had used excessive force and awarded the victim punitive damages against Thompson in the amount of $300,000. 10 In circumstances such as these, where the conduct went “to the heart of the worker’s…
- United States v. Arrington, 765 F. Supp. 945 (N.D. Ill. 1991).publishedIn the face of all that, it is difficult to perceive any basis on which the government can urge that there is anything to support the notion that the low-level postal employee who is given no special position of trust should be subjected t…
- Diaz v. United States Postal Serv., 668 F. Supp. 88 (D.P.R. 1987).publishedUnited States Postal Service v. American Postal Workers Union (COTE), 736 F.2d 822, 825 (1st Cir.1984).
Show 6 more citing cases
- United States Postal Serv. v. Nat'l Ass'n of Letter Carriers, 663 F. Supp. 118 (W.D. Pa. 1987).published U.S. Postal Service v. American Postal Workers Union, 736 F.2d 822, 825 (1st Cir.1984).
- Posadas De Puerto Rico Assocs., Inc., D/B/A Condado Plaza Hotel & Casino v. Asociacion De Empleados De Casino De Puerto Rico, 821 F.2d 60 (1st Cir. 1987).publishedWarren Company, supra. U.S. Postal Serv. v. American Postal Workers Union, 736 F.2d 822, 825 (1st Cir.1984); Congreso de Uniones Industriales v. Nat’l.
- Guy W. Kissinger v. United States Postal Serv., 801 F.2d 551 (1st Cir. 1986).publishedUnited States Postal Service v. American Postal Workers Union (Cote), 736 F.2d 822, 825 (1st Cir.1984).
- E.I. Dupont De Nemours & Co. v. Grasselli Employees Indep. Assoc. Of East Chicago, Inc., Defendant, 790 F.2d 611 (7th Cir. 1986).published (employee who clearly embezzled money won arbitration award because of employee's intent to return money; such an award violated public policy against dishonest postal workers)
- Am. Fed'n of State, Cnty. & Mun. Employees v. Dep't of Cent. Mgmt. Servs., 671 N.E.2d 668 (Ill. 1996).published See also United States Postal Service v. American Postal Workers Union, 736 F.2d 822, 825 (1st Cir. 1984) (vacating, on public policy grounds, an award reinstating postal worker convicted of embezzling postal funds because the offense "wen…
- Afl-Cio (Afscme) v. Dept. of Cent. Mgt., 671 N.E.2d 668 (Ill. 1996).published See also United States Postal Service v. American Postal Workers Union, 736 F.2d 822, 825 (1st Cir. 1984) (vacating, on public policy grounds, an award reinstating postal worker convicted of embezzling postal funds because the offense "wen…
At page 824 Evaluating public policy against employment of convicted embezzlers10 citing casesrejecting test that arbitrator’s award must violate positive law
- Exxon Corp. v. Local Union 877, Int'l Bhd. of Teamsters, 980 F. Supp. 752 (D.N.J. 1997).publishedRobert Kimball & Assocs., 860 F.2d 683, 686 (6th Cir.1988), cert, denied, 494 U.S. 1030 , 110 S.Ct. 1480 , 108 L.Ed.2d 617 (1990); United States Postal Serv. v. American Postal Workers Union, 736 F.2d 822, 824 (1st Cir.1984)).
- Cleveland Bd. of Educ. v. Int'l Bhd. of Firemen & Oilers Local 701, 696 N.E.2d 658 (Ohio Ct. App. 8th Dist. 1997).published(rejecting test that arbitrator’s award must violate positive law)
- Gulf Coast Indus. Workers Union v. Exxon Co., U.S.A., 991 F.2d 244 (5th Cir. 1993).publishedGorman, Labor Law-Unionization and Collective Bargaining 597 (1982) (stating that an award may be vacated when it, "although not requiring illegal conduct, is said to be inconsistent with some significant public policy"); see also, e.g., G…
- Exxon Shipping Co. v. Exxon Seamen's Union, 993 F.2d 357 (3d Cir. 1993).published(rejecting test that arbitrator’s award must violate positive law)
- Gulf Coast Indus. Workers Union v. Exxon Co., U.S.A., No. 91-6374 (5th Cir. May 19, 1993).publishedGORMAN, LABOR LAW—UNIONIZATION AND COLLECTIVE BARGAINING 597 (1982) (stating that an award may be vacated when it, "although not requiring illegal conduct, is said to be inconsistent with some significant public policy"); see also, e.g., G…
- Premium Bldg. Prods. Co. v. United Steelworkers of Am., 616 F. Supp. 512 (N.D. Ohio 1985).publishedGrace & Co. v. Local Union 759, International Union of the United Rubber, Cork, Linoleum & Plastic Workers of America, 461 U.S. at 766 , 103 S.Ct. at 2183 ; United States Postal Service v. American Postal Workers Union, AFL-CIO, 736 F.2d 8…
- Exxon Shipping Co. v. Exxon Seaman's Union, No. 95-5027 (3d Cir. Jan. 11, 1996).Ass'n, 790 F.2d 611, 616 (7th Cir.)(quoting Robert A. Gorman, Basic Text on Labor Law 597 (1976)), cert. denied, 479 U.S. 853 (1986); see also United States postal Serv. v. American Postal Workers Union, 736 F.2d 822, 824 (1st Cir. 1984).
- Exxon Shipping Co. v. Exxon Seamen's Union, 73 F.3d 1287 (3d Cir. 1996).publishedAss’n, 790 F.2d 611, 616 (7th Cir.) (quoting Robert A. Gorman, Basic Text on Labor Law 597 (1976)), cert. denied, 479 U.S. 853 , 107 S.Ct. 186 , 93 L.Ed.2d 120 (1986); see also United States Postal Serv. v. American Postal Workers Union, 7…
At page 823 Public policy considerations in employment termination cases5 citing casesemployee embezzled money from the post office in violation of statutes specifically forbidding such conduct by postal employees and the public trust in the post office
- City of Boston v. Boston Police Patrolmen's Ass'n, 824 N.E.2d 855 (Mass. 2005).publishedEmployees, Council 93, supra at 17, quoting United States Postal Serv. v. American Postal Workers Union, 736 F.2d 822, 823, 825 (1st Cir. 1984).
- State v. New England Health Care Employees Union, 855 A.2d 964 (Conn. 2004).published (employee convicted of embezzling postal funds)
- Sch. Dist. of Beverly v. Geller, 755 N.E.2d 1241 (Mass. 2001).publishedHere, the teacher’s misconduct goes “to the heart of the worker’s responsibilities,” Massachusetts Highway Dep’t, supra at 17, quoting United States Postal Serv. v. American Postal Workers Union, 736 F.2d 822, 823, 825 (1st Cir. 1984).
- Sch. Dist. v. Geller, 737 N.E.2d 873 (Mass. App. Ct. 2000).published(employee embezzled money from the post office in violation of statutes specifically forbidding such conduct by postal employees and of the public trust in the post office)
- Massachusetts High. Dep't v. Am. Fed'n of State, Council 93, 648 N.E.2d 430 (Mass. 1995).published(employee embezzled money from the post office in violation of statutes specifically forbidding such conduct by postal employees and the public trust in the post office)
At page 826 overturning an award reinstating a postal worker who was discharged for “embezzling” government funds, as his actions “violated” “the public[’s] trust.2 citing cases
- Caputo v. Wells Fargo Advisors, No. 3:19-cv-17204, 2020 WL 2786934 (D.N.J. May 29, 2020).unpublished(overturning an award reinstating a postal worker who was discharged for “embezzling” government funds, as his actions “violated” “the public[’s] trust.)
- Exxon Shipping Co. v. Exxon Seamen's Union, 788 F. Supp. 829 (D.N.J. 1992).published(arbitration award requiring reinstatement of employee who was convicted for embezzling postal funds was unenforceable as against public policy)
At page 822 PETTINE, Senior District Judge. This case is an appeal of a district court ruling which overturned a labor arbitration award. We affirm the district court.…1 citing case
- Michael Zemonick v. Consolidation Coal Co., a Corp., 762 F.2d 381 (4th Cir. 1985).publishedBut where, as here, the plaintiff “has not been deprived of a judgment obtained before DelCostello came down,” there is little inequity in applying that decision retroactively. 13 Graves, 736 F.2d at 822; accord Estades, 593 F.Supp. at 782.
Other citing cases
- Nat'l Rural Letter Carriers' Ass'n v. United States Postal Serv., 625 F. Supp. 1527 (D.D.C. 1986).published
- Delta Air Lines, Inc. v. Airline Pilots Ass'n, 686 F. Supp. 1573 (N.D. Ga. 1987).published
- United States Postal Serv. v. Nat'l Ass'n of Letter Carriers, AFL-CIO, 631 F. Supp. 599 (D.D.C. 1986).published
- United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29 (1987).published
v.
AMERICAN POSTAL WORKERS UNION, AFL-CIO, Defendant, Appellant
This case is an appeal of a district court ruling which overturned a labor arbitration award. We affirm the district court.
Donald Cote was a window clerk at the post office in Sanford, Maine. His duties included selling money orders, cashing money orders, and other matters involving the handling of money. An investigation of financial discrepancies at the Sanford post office revealed that $4,325.00 worth of postal money orders had been issued by Cote between November 1981 and January 1982 without prepayment. Cote signed a confession, was indicted, and subsequently pled guilty to a charge of embezzling postal funds in violation of 18 U.S.C. § 500. Cote received a one year suspended sentence and was put on probation for two years, in addition to being ordered to make full restitution to the Postal Service.
During this same period, the Postal Service discharged Cote. His Notice of Removal laid three charges against him, all of which stemmed from his embezzlement activities. As he was a member of a bargaining unit represented by the appellant Union, the Union took the issue of Cote’s discharge to binding arbitration pursuant to the National Agreement between the Postal Service and the Union. A hearing was held before an arbitrator on July 27, 1982, to determine whether the Postal Service had “just cause” to fire Cote.
One month later, the arbitrator rendered a decision which ordered that Cote be reinstated without back pay. The arbitrator focussed on Cote’s intent in taking the money and found that he did not intend to keep it, but rather to repay it when he could. The arbitrator relied on evidence of past repayments by Cote, Cote’s retention of records of money orders issued, unusual financial pressures on Cote, and Cote’s record of seven years employment without disciplinary problems. Therefore, the arbitrator ruled that
The Postal Service did not have just cause for the removal of Mr. Cote, however, it did have just cause to suspend Mr. Cote without back pay and to transfer Mr. Cote away from a window clerk position to another position where similar action as [that] involved in this case could not take place.
[*824] The Postal Service then filed this action to vacate the arbitrator’s award. The Postal Service challenged the award on two grounds: first, that the arbitrator failed to give proper collateral estoppel effect to Cote’s conviction in that the arbitrator found that Cote intended to repay the money, and, second, that ordering the reinstatement of Cote was contrary to public policy. The parties filed cross-motions for summary judgment, and the matter went before a magistrate.
The magistrate rejected the Postal Service’s first argument. He found that the arbitrator had considered the 18 U.S.C. § 500 conviction but that the broad language of the statute did not mandate permanent intent to keep the funds as an element of the crime. On its second argument, the Postal Service fared better and the magistrate agreed that the reinstatement award violated “an important public policy against embezzlement of Government money.” He therefore recommended that summary judgment be entered in favor of the Postal Service. The district judge accepted the recommendation and entered judgment for the Postal Service. The Union appealed.
The heart of the Union’s argument is that although there may be a public policy against embezzling Postal Service funds, there is no public policy against the Postal Service employing convicted embezzlers. You have to have something more — a direct legal prohibition. And, in support the Union compares the instant case with American Postal Workers Union v. United States Postal Service, 682 F.2d 1280 (9th Cir.1982), cert. denied, 459 U.S. 1200, 103 S.Ct. 1183, 75 L.Ed.2d 431 (1983) (arbitrator’s award reinstating Postal Service employee who had participated in strike vacated because of statute prohibiting employment of individuals who had participated in strikes) and with General Teamsters Local Union 249 v. Consolidated Freightways, 464 F.Supp. 346 (W.D.Pa.1979) (arbitrator’s award upholding employer discharges of truck drivers who refused to drive trucks lacking mud flaps, despite state law requiring mud flaps, vacated because award compelled drivers to violate state law). Although these cases exhibit a particularly precise fit between the facts of the case and the public policy vindicated, an examination of the case law reveals that such a close fit is not required.
In Amalgamated Meat Cutters v. Great Western Food Co., 712 F.2d 122, reh. and reh. en banc denied, id. (5th Cir.1983), a case cited with apparent approval in the Union’s brief, an arbitrator ordered an employer to reinstate a truck driver who had admitted to drinking prior to overturning an eighteen-wheel rig he was driving. The arbitrator stated that he ordered the driver’s reinstatement because his employer had failed to disprove the driver’s assertion that a steering mechanism failure had caused the accident; however, the arbitrator denied the driver back pay because the driver admitted to drinking and paying too much attention to his citizens band radio while driving. The Fifth Circuit vacated the award on the grounds of the public policy against drinking and driving. Id. at 124-25. Although the court cited cases which were directly on point, the opinion makes it clear that the court relied primarily on the general policy against drinking and driving and its special importance when applied to professional drivers. As that court stated in summation,
the public policy of preventing people from drinking and driving is embodied in the case law, the applicable regulations, statutory law, and pure common sense. The policy is “well defined and definite.” W.R. Grace & Co., [461] U.S. [757] at [-], 103 S.Ct. [2177] at 2182 [76 L.Ed.2d 298]. To enforce the arbitrator’s award in this case, an award which compels the reinstatement to driving duties of a truck driver who admittedly drank while on duty, would violate this public policy.
Similarly, in Local No. P-1236, Amalgamated Meat Cutters v. Jones Dairy Farm, 680 F.2d 1142 (7th Cir.1982), the public policy was that of processing meat under[*825] sanitary conditions while the subject of the arbitration was an employer’s rule prohibiting employees from directly contacting federal meat inspectors about unsanitary conditions. The Seventh Circuit found that a rule which required employees to report problems first to company officials would not violate the public policy. Id. at 1144. However, since the rule prohibited employees from notifying Department of Agriculture inspectors regardless of the circumstances, the court found the rule “facially defective because it is overly broad ____” Id. at 1145.
The Union also urges that the instant case is comparable to Local 453, International Union of Electrical Workers v. Otis Elevator Co., 314 F.2d 25 (1963). In Local 453, the Second Circuit reversed a district court ruling which had vacated an arbitrator’s award ordering the reinstatement of an employee discharged for gambling on the company’s premises. As in this case, the employee felt the sting of criminal sanctions for his misdeeds. The Second Circuit in Local 453 held that the public policy against gambling at work was sufficiently vindicated through criminal sanctions and a suspension from work, and that public policy did not require discharge. Id. at 29.
Cote’s case, though, is distinguishable. The offense in Local 453 was tangential to the employee’s job as a factory worker — in the instant case, the offense went to the heart of the worker’s responsibilities. As a window clerk, Cote was entrusted with large amounts of money and valuable postal materials. As a postal employee, he represented a branch of the federal government and was imbued with the public trust. His actions directly violated that trust.
As the Postal Service points out, putting a postal employee in a job removed from stamps and money does not remove his chances of violating the public trust. Any postal position which handles mail is one entrusted with items of importance and value by the public. Envelopes containing government checks or items which are insured disclose to all who see them the valuable items inside. If the Postal Service did not have confidence in an employee’s trustworthiness it would be, at a minimum, negligent to not keep close watch on him. Such close supervision as might be prudent could well be too costly to be even remotely efficient.
When a court bars the enforcement of an arbitration award on the basis of public policy, that policy must be clearly defined. Local 453, supra. The policies in this case are not only defined by positive law, but are also the clear dictates of common sense. A postal employee is required to swear that he “will well and faithfully discharge the duties of the office on which [he is] about to enter.” 39 U.S.C. § 1011. Numerous statutes relate to the conduct and honesty of postal employees — among them is 18 U.S.C. § 500, the statute under which Cote was convicted. Moreover, the Postal Service is required by law to be “prompt, reliable, and efficient ____” 39 U.S.C. § 101(a). Finally, as a government monopoly, the public has to use the Postal Service for the carriage of regular letter mail.
Aside from any considerations bearing directly on Cote, we cannot avoid the common sense implications that requiring the rehiring of Cote would have on other postal employees and on the public in general. Other postal employees may feel there is less reason for them to be honest than they believed — the Union could always fix it if they were caught. Moreover, the public trust in the Postal Service, and in the entire federal government, could be diminished by the idea that graft is condoned.
This opinion is not to be taken as authority for the proposition that there is a public policy against the Postal Service employing anyone who has been convicted of a crime. As the Second Circuit noted in Local 453, supra,
in light of the important role which employment plays in implementing the public policy of rehabilitating those convicted of crime, there can hardly be a public policy that a man who has been convict[*826] ed, fined, and subjected to serious disciplinary measures, can never be ordered reinstated to his former employment
314 F.2d at 29.
However, given its important public trust and its mandate of efficiency, it violates public policy to force the Postal Service to reinstate an employee who was recently convicted of directly violating his fiduciary duties through the embezzlement of a large sum of money from it.
Affirmed.