American Postal Workers Union Afl-Cio v. United States Postal Service, San Francisco Bulk Mail Center, Richmond, California

682 F.2d 1280 110 L.R.R.M. (BNA) 2764 AMERICAN POSTAL WORKERS UNION AFL-CIO, Plaintiff-Appellant, v. UNITED STATES POSTAL SERVICE, San Francisco Bulk Mail Center, Richmond, California, Defendants-Appellees. No. 80-4250. United States Court of Appeals, Ninth Circuit. Argued and Submitted Oct. 15, 1981. Decided June 8, 1982. Stewart Weinberg, Van Bourg, Allen, Weinberg & Roger, San Francisco, Cal., for plaintiff-appellant. Stephen E. Alpern, Associate Gen. Counsel, Washington, D. C., for defendants-appellees; George Christopher Stoll, Asst. U. S. Atty., San Francisco, Cal., on brief. Appeal from the United States District Court for the Northern District of California. Before WALLACE and PREGERSON, Circuit Judges, and BYRNE, * District Judge. WALLACE, Circuit Judge: 1 The American Postal Workers Union (the union) appeals from a district court judgment denying enforcement of an arbitration order. The district court determined that the arbitration order compelled the United States Postal Service (Postal Service) to perform an illegal act and was therefore unenforceable. We affirm. 2 * The union brought this action on behalf of Michael Murphy (Murphy), a union member discharged by…

The American Postal Workers Union (the union) appeals from a district court judgment denying enforcement of an arbitration order. The district court determined that the arbitration order compelled the United States Postal Service (Postal Service) to perform an illegal act and was therefore unenforceable. We affirm.

I

The union brought this action on behalf of Michael Murphy (Murphy), a union member discharged by the Postal Service for participation in an illegal work stoppage. The incidents which gave rise to this action are not disputed. On Friday evening, July 21,1978, Murphy was informed that a strike would be initiated at the bulk mail facility the following morning. The next day, Murphy arrived at the facility to investigate the situation a little over an hour before his 9:00 a.m. shift began. He observed a group with picket signs gathering and moving towards the facility’s main entrance. He recognized some members of the group as coworkers and others as union officers. When he inquired about the activities, he was informed that a picket line would be established, but that no one would be prevented from crossing it. Murphy, nevertheless, anticipated that there would be…

(dissenting):

I respectfully dissent. Remand to the arbitrator for clarification of his opinion is the proper course to follow here.

The majority first argues that a remand is unnecessary because “[t]he only logical inference which can be drawn” from the language of the arbitrator’s opinion is that the arbitrator found Murphy to have “participated” in the unlawful strike. Maj. Op. at 1283. It then contends that even if it is not clear that the arbitrator drew this conclusion, remand is still inappropriate because the facts admit of no contrary conclusion. Neither of these claims is justified.

I

According to the majority, the arbitrator ordered Murphy reinstated solely because he believed mitigating factors made dismissal an overly harsh penalty, and not because of any doubt as to whether Murphy participated in the strike. Yet the arbitrator’s opinion nowhere states a finding of participation by Murphy. The language that the majority reads as implying such a finding does not, in fact, compel any such conclusion. 1 Indeed, the arbitrator’s find *1287 ing that Murphy was fired without just cause is evidence that the arbitrator concluded that Murphy had not participated in the…