IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
December 22, 1998
INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL 716; ANTHONY CEDRONE; GREGORY RUGGIERO AND RONALD KELLY,
DELAWARE RIVER PORT AUTHORITY,
The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
HONORABLE JEROME B. SIMANDLE
SIMANDLE, District Judge
The parties to this lawsuit, namely the plaintiff International Union of Operating Engineers, Local 716 ("Local 716") and the defendant Delaware River Port Authority ("DRPA"), resolved all aspects of their dispute except one. Twelve employees of the DRPA, each of whom is a member of Local 716, allegedly participated in a peaceful march across the Benjamin Franklin Bridge on Saturday, May 16, 1998, in violation of DRPA's work rules and policy forbidding pedestrians upon the bridge roadway, and allegedly causing a work-stoppage in violation of the DRPA's terms of employment and the previously expired collective bargaining agreement. That march was rather loosely organized by several officers of Local 716 and a statewide umbrella group of supportive unions as a demonstration against the DRPA's alleged unfair treatment of Local 716, such as by hiring temporary employees and failing to enter into a new collective bargaining agreement during the nine months after the previous contract expired (after several extensions) on August 16, 1997. The march resulted in stoppage of traffic over the bridge for about one hour on a moderately busy Saturday afternoon, and about 72 marchers, including 11 of the 12 grievants, were arrested at mid-span.
The DRPA terminated the 12 from employment and Local 716 filed grievances on behalf of the 12 members. The parties disagreed regarding the availability of arbitration for these grievances. As part of a comprehensive negotiation and settlement of all claims and reaching a new collective bargaining agreement, the parties agreed in August to submit the pending grievances concerning the 12 discharged employees *fn1 for a final and binding "disposition" before the undersigned. *fn2 I agreed to the parties' joint request to conduct the "disposition hearing" *fn3 in September, 1998, and testimony was taken and arguments heard over 35 hours on five days, concluding with oral arguments on October 15, 1998.
This Determination is the final decision, issued after due deliberation following the disposition hearing.
A. The Charges and the Issues
The grievances and this disposition hearing are concerned with whether the DRPA has proved the propriety of the terminations of the 12 grievants upon the charges contained in the DRPA's termination letters dated June 11, 1998 (Exs. 34-45). The DRPA charged the following infractions as a basis for these terminations:
By letter dated June 5, 1998, you were instructed to attend a pre-disciplinary hearing for your participation in the events on May 16, 1998 that gave rise to an extremely dangerous public safety situation which resulted in the complete closure of the Benjamin Franklin Bridge, including the PATCO rail system.
The said hearing was conducted on June 8, 1998 by the Authority's Chief Operating Officer at which time you had ample opportunity to present any evidence of facts that you wished to have considered when addressing your employer's various allegations of improper conduct, violations of DRPA Work Rules, regulations, policies and other provisions, as well as violations of the terms governing the employment of those DRPA employees who are represented by the International Union of Operating Engineers, Local 716.
After considering all relevant facts, the Chief Operating Officer has made a finding that you in fact violated various DRPA Work Rules, regulations, policies, contract provisions and terms of employment; and moreover, these violations are of a serious nature and warrant your discharge from employment. Therefore, this letter shall serve as formal notification that your leave of absence is canceled effective close of business Friday, June 12, 1998 and your employment at DRPA is terminated effective June 13, 1998, 12:01 a.m., for the following violations:
The DRPA's letter then recited the various work rules and the collective bargaining agreement provision which the grievants were found to have violated, namely, DRPA Work Rules 3A, 3B(7), 3C(5), (6), (8) & (13), and Article VII of the Collective Bargaining Agreement (the relevant portions of which are set forth below). (Exs. 34-45 at pp. 1- 2.)
The issues presented require, first, a determination of the applicable agreement or standard governing these employees' terminations, the parties being in dispute as to which collective bargaining agreement or terms of employment or other standard applies. Second, under the applicable standard, the facts must be determined, to answer the ultimate issue whether the DRPA has proved that these grievants engaged in a "strike or work stoppage" or other conduct subject to discipline. Third, I must assess the claim of Local 716 that the grievants were engaged in protected expressive conduct for which no discipline may be imposed consistent with the First Amendment. Fourth, if the DRPA has proved that the conduct warranted discipline, and if the conduct is not protected under the First Amendment, the issue will arise whether I have the authority to modify the discipline in this disposition hearing, and if so, whether a lesser discipline is warranted.
B. The Applicable Standards
Because of the chronology of the labor relations between DRPA and Local 716, the identification of the standards of conduct for these grievants is not a simple matter. The march in question occurred May 16, 1998. The last formal collective bargaining agreement between the DRPA and Local 716 was effective from November 1, 1993 to January 31, 1997 (Ex. 50), which was extended by mutual agreement on several occasions while the parties attempted to negotiate a new agreement, with the last extension expiring on August 16, 1997. (Ex. 52).
The Local 716 membership rejected the last tentative agreement negotiated by its Executive Committee, and the DRPA declared an impasse in bargaining on January 6, 1998, unilaterally implementing "Terms of Employment" (or "TOE") to govern the parties' relationship. (Ex. 51.)
There followed several lawsuits as the members of Local 716 worked without a collective bargaining agreement, including a suit challenging DRPA's authority to implement Terms of Employment, which suit was eventually withdrawn as part of the overall settlement between these parties in August, 1998, following court-sponsored settlement discussions and resumption of bargaining. Consistent with the Confidential Settlement Agreement of August 14, 1998, Local 716 forwarded a revised contract proposal to the DRPA on August 18, 1998, which was accepted by DRPA. (Ex. 55.) The new 1997-2001 collective bargaining agreement has an effective date retroactive to August 16, 1997, and it incorporates some of the 1998 Terms of Employment while modifying others. (Ex. 55.)
The DRPA argues that the 1993-97 agreement does not apply because it had expired. DRPA suggests that the Terms of Employment and the 1997-2001 contract govern, of which the key provision is the "no strike" clause of Article VII, which allegedly had moved without change from the Terms of Employment into the new labor contract. (Exs. 51, 55.) The new language of Article VII of the 1997-2001 agreement, according to the DRPA, in addition to banning work stoppages by IUOE members also provides that any discipline imposed pursuant to that article is solely within the discretion of DRPA. It follows, according to DRPA, that the grievants' conduct on May 16, 1998 violated Article VII of the new agreement, so that the DRPA's invocation of discharge must be upheld. (DRPA Post-Disposition Hearing Memo. at 20-24)
Local 716 argues that the Terms of Employment were not in effect in May of 1998 because no such terms could be unilaterally imposed in the absence of a bargaining impasse. Since bargaining was not at an impasse, in Local 716's view, the terms of the 1993-97 agreement continued in effect, including the provisions of original Article VII which contained a no-strike clause accompanied by a binding grievance and arbitration procedure.
Local 716 argues that it would never have agreed to apply the revised Article VII to this disposition hearing, since the revision purports to abolish access to the grievance and arbitration provisions as to the degree of discipline imposed for conduct violating Article VII.
Before discussing these changes to the no-strike provision of Article VII, we note the relevant provisions of the 1993-97 labor contract that were carried forward unchanged into the parties' current agreement:
Article III, Section 3: "It is recognized that the business of the DRPA is to render efficient and courteous service to the public, and the Union and its members agree that employees should present a neat appearance, be efficient and courteous."
Article III, Section 4: "The DRPA may establish fair standards of performance and take steps to upgrade the skills of employees."
Article III, Section 7: "It is recognized that the DRPA may discipline employees up to and including the discharge of employees for just cause."
Article V, Section 1: "The Union and its members recognize that all management functions, including the full and exclusive control, direction and supervision of bridge operations and personnel, are vested solely in the DRPA except as may be otherwise provided in this Agreement."
Article VIII, Section 1 (Paragraph 7): "If a grievance is not satisfactorily adjusted under Section 1(c) of this Article, either party may, within forty-two (42) days from the decision, submit the matter to arbitration. The arbitration shall be submitted to the American arbitration Association in accordance with its rules and regulations. The Arbitrator in his decision shall be guided by the interest of the parties herein and said Arbitrator shall have no power to add to, alter, amend or repeal this Agreement, any provision thereof, or to fix or change any rate of [sic] rates of pay. The expense of the Arbitrator and the expenses of the American Arbitration Association shall be borne one-half by DRPA and one-half by the Union." *fn4
As to the no-strike and binding arbitration provision of Article VII, the 1993-97 agreement stated:
Article VII (Paragraph 1): "During the term of this Agreement, the Union and/or its members shall not authorize, call, support, sanction, approve or take part in any strike, slowdown, reporting of pretended illness or other cessation of work, and they agree not to sponsor, authorize, call, support, sanction, approve, or take part in any sympathy strike, secondary boycott or other form of work stoppage."
The DRPA's unilateral Terms of Employment on January 6, 1998 added a second paragraph to Article VII which purported to curtail the employee's right to grieve and arbitrate the extent of discipline imposed by DRPA for a violation of Article VII's no-strike clause. As reformulated by the DRPA, the Terms of Employment added:
Article VII (Paragraph 2): "Any employee who engages in activity proscribed by this Article shall be subject to discipline in the sole discretion of the DRPA. No employee thus disciplined shall have access to the grievance and arbitration provisions of this Agreement, except as to the limited issues of whether such proscribed activity occurred and whether he or she engaged in it."
There is some doubt that the DRPA can effect the unilateral imposition of a term of employment abolishing the grievance and arbitration remedy for discipline related to an alleged strike or work stoppage under Article VII, while still retaining a no-strike clause. Even though the modification does not limit the employee's right to grieve "the limited issues of whether such proscribed activity occurred and whether he or she engaged in it," the DRPA's language abolishes the right to grieve the extent of discipline -- including termination -- which the DRPA imposes for such conduct in its own discretion. Even if one assumes for the sake of argument that the DRPA and Local 716 had reached an impasse in their efforts to negotiate a new collective bargaining agreement, *fn5 and further that Article VII (Paragraph 2) was operative and applicable to the employees' conduct on May 16, 1998, the threshold issue under either version of Article VII is whether the conduct of these grievants amounted to a strike or work stoppage. *fn6
C. Was this a "Strike" or Work Stoppage"?
The DRPA and Local 716 agree that a strike or work stoppage is subject to discipline under Article VII (Paragraph 1), above. They disagree whether the conduct of the 12 grievants amounted to such activity. Local 716 and its members have agreed that they "shall not authorize, call, support, sanction, approve or take part in any strike, slowdown, reporting of pretended illness or other cessation of work" and they agreed "not to sponsor, authorize, call, support, sanction, approve, or take part in any sympathy strike, secondary boycott or other form of work stoppage." Art. VII (¶ 1), supra. The DRPA alleges that the 12 men engaged in a work stoppage on May 16th, by preventing the conduct of DRPA business when they marched onto the bridge and brought bridge traffic to a halt for an hour. DRPA asserts that the purpose of Article VII is to guarantee "continuity of operations" and also to "guarantee continuity in performing its [DRPA's] obligation to the public," quoting Opinion of Arbitrator Kyler, Ex. 53 at page 15. DRPA argues that the march constituted picketing which led to a significant disruption of the Benjamin Franklin Bridge. The demonstration was allegedly disruptive, disorderly and threatening toward DRPA employees and the public.
Local 716 argues that these grievants engaged in a peaceful demonstration in which marchers did not stop traffic, make threats, or attempt to induce other employees to leave their posts. All grievants were off-duty employees, and Local 716 had initially sought permission for use of one lane of the seven-lane bridge, with a second lane vacated as a "buffer" zone, so that the remaining lanes of the bridged could be devoted to vehicular traffic with little or no inconvenience or danger. Although bridge traffic in both directions was stopped, Local 716 asserts that the stoppage was due to a decision by police and/or DRPA officials to block the traffic rather than to permit co-mingling of pedestrians and vehicles on the roadway surface. Local 716 points out that co-mingling of vehicles and marchers occurred with little hazard or inconvenience in the court-ordered march six weeks later on Saturday, June 27, 1998, when the union and DRPA cooperated under the court's temporary restraining order of June 26 permitting the march.
For the following reasons, I find that the DRPA has not proved that the grievants engaged in a "strike" or "work stoppage" in violation of Article VII (¶ 1), but I find instead that the eleven (11) grievants who marched on the roadway engaged in lesser misconduct, for which DRPA has established good cause for imposition of discipline significantly less than dismissal.
1. Genesis of the March
In April and May of 1998, outstanding labor issues between the DRPA and Local 716 included the absence of a collective bargaining agreement renewal despite many bargaining sessions, the layoffs of some Local 716 members, and the hiring of part-time employees or contractors to work in the toll booths and other jobs performed by Local 716. The New Jersey Industrial Union Council, which is a coalition group of 40 international unions including IUOE, through its president, William J. Kane, decided to support Local 716, and the NJIUC began to arrange for a march to take place at the Benjamin Franklin Bridge on May 9, 1998. (Ex. 4.) Frank DiMaria of the NJIUC prepared a flyer to notify the public and other union members about the march, which Kane understood would be on the roadway of the bridge. The date was charged to May 16, 1998. (Ex. 5)
Kane believed that the idea for a march came from Cedrone and the Local, while Cedrone testified that Local 716 intended for the marchers to use the bridge's North walkway, not the surface of the road. Local 716 published no flyers or other information about the march, so far as the record reflects. On May 12, 1998, Cedrone applied for a National Park Service permit to hold a public rally at Independence Mall in Philadelphia, (Ex. 7) a location about two blocks from the western approaches to the bridge. The approved location was the block of Independence Park bordered by 5th and 6th Streets, and Race and Arch Streets. (Id.)
Although DRPA officials (specifically General Counsel Richard L. Brown) sought clarification about the union's plans by calling DiMaria's telephone number on the flyer, at the end of April the two sides failed to communicate about the local's plans or to clarify the ambiguity in the flyer (Ex. 5) which mentioned a march "across the bridge," it being unclear whether the reference was to using the roadway or the pedestrian walkway "across the bridge." Brown also wrote to DiMaria, and DiMaria responded by phone to the DRPA's Kelly Campbell, expressing surprise that Cedrone had not yet sought permission for the march, since it was the local's responsibility. Brown then wrote to Cedrone on May 12, 1998 (Ex. 6.) Neither DRPA nor Local 716 succeeded in speaking with one another to clarify the plans for the May 16th demonstration until May 13, when Local 716 Treasurer Ronald Kelly called DRPA to request two lanes on the roadway for the march across the bridge, one for marchers and one as a buffer. (Ex. 9).
2. May 14th Meeting Regarding Plans for March
In response to the call from Local 716's Treasurer Ronald Kelly, a meeting was set up on May 14th, attended by Kelly and Greg Ruggiero (Financial Secretary of Local 716), having been designated to attend by Cedrone on behalf of the union, and by J. P. Marinari (Chief Operating Officer), Kelly Campbell (Legal Dept.), Val Bradford (Bridge Manager), David McClintock (Inspector), Lt. Frank Scorza (Facility Commander at Ben Franklin Bridge) and others on behalf of DRPA. Kelly and Ruggiero are both members of Local 716's Executive Committee.
Kelly testified that he told the meeting that the local had no desire to close the bridge down, and was requesting closure of two lanes plus a police escort to protect the marchers. He also assured the DRPA officials that the union had no plans to use trucks to block the bridge.
Likewise, Ruggiero testified that at the meeting he also requested a lane for the march, pointing out that commingling could be done safely and that the New York Port Authority had recently granted a bridge lane for a march. This latter assertion was not substantiated by evidence in this matter.
J.P. Marinari said there could be no commingling and no march on the roadway. Marinari said commingling people and vehicles on the bridge was unsafe and offered some examples of accidents that occurred when vehicles veered into lanes that had been shut. He proposed that the union marchers use the walkway instead of the roadway, and he drew a diagram (Ex. 14) giving the route from Philadelphia's Independence Park on sidewalks along Fifth Street to the pedestrian tunnel at the West end of the bridge, down the tunnel from the South walkway passing under the bridge roadway to the North walkway, and then heading eastward on the North walkway for about a mile across the bridge to the New Jersey side, descending a stairway into a staging area near the administration building adjacent to the toll plaza. Under Marinari's plan, DRPA would set up a staging area for Local 716's use to hold a demonstration and rally at that site, protected by barricades but still visible to westbound motorists driving through the toll plaza for the bridge. He also prepared seven "talking points" for emphasis at the meeting (Ex. 15) and printed them out for Kelly and Ruggiero to take back to the union. The "talking points" reiterated that there could be no lane access or bridge closure, and no gantry access (the gantry is the overhead connector above the roadway from the South sidewalk to the North sidewalk). (Ex. 15)
Mr. Marinari's "talking points" also conditioned the union's use of the walkway by precluding banners, flags or signs on the walkway (supposedly out of concern for other pedestrians on the walkway), and also by requiring the union to execute indemnification and insurance forms (supposedly to meet the same conditions upon walkway access that apply to all groups conducting some sort of event on or over the bridge). Marinari's letter of May 15th to Cedrone and Ruggiero confirmed the seven points. (Ex. 11.)
3. DRPA's Response to Union's Request
The DRPA was clear in telling the Union's delegates that they could not march on the bridge roadway. There was no ambiguity in this directive. The expressed rationale arose from the DRPA's view that to permit the march would require closure of the Benjamin Franklin Bridge at a busy traffic period for about an hour, because the union's alternative -- a march occupying a lane plus a buffer lane while traffic proceeded in the other few lanes -- amounted to commingling of traffic and pedestrians on the highway.
DRPA adopted the policy that commingling of pedestrian and vehicular traffic on the roadway causes a specific risk of harm to the pedestrians and to motorists alike. That DRPA has perhaps overestimated the risk and overreacted to the march, for reasons discussed below, does not mean that DRPA had no legitimate safety concerns. They did and they do. Its concerns for safety and for not interrupting the moderately heavy traffic flow were understandable and do not strike me as pretextual as much as overestimated, as subsequent events at the court- supervised second march, June 27, 1998, have demonstrated.
The DRPA counts only the vehicles going westbound through the one- way toll booths. The volumes vary throughout the day and with the ebb and flow of commuter traffic. Statistics are kept on an hourly basis around the clock. On Saturday afternoons, absent unusual circumstances, the vehicle count is between 2,500 and 3,000 per hour westbound. (Ex. 64.) *fn7 This is a medium volume compared with the weekly high of about 5,000 westbound crossings per hour or the weekly low of fewer than 1,000 per hour. Cars, trucks, and buses traverse the span, on which the roadway exceeds a mile in length, at speeds of 40-60 M.P.H., the posted limit generally being 45 M.P.H. or less. For eastbound marchers in the two southern lanes (Lanes 6 and 7), the vehicle traffic would have to be safely redirected and compressed to the remaining lanes, or the eastbound traffic would have to be stopped altogether.
It is possible to reconfigure the bridge lanes in 10-20 minutes, such as when an accident occurs. Overhead signals indicate the closed and open lanes by red and green lights, and a truck is usually available to place traffic cones denoting the closed lane or lanes. This also becomes necessary with construction projects and bridge repainting, which have occurred many times in the bridge's history. Bumper trucks with flashing lights can also mark and protect the closed lanes, as can marked police vehicles. Even with these precautions, however, the roadway cannot be configured to protect pedestrian marchers from stray or inattentive drivers who do not expect to find a crowd of people walking on this busy bridge. Also, on this seven-lane bridge, one lane is always reserved as a buffer between the eastbound and westbound traffic to reduce risk of head-on collisions. Of the six that are left, taking two more out of service can choke this bridge because the four remaining lanes cannot handle even a moderate vehicle flow.
The DRPA's policy forbidding commingling was explained by Val Bradford, the bridge manager for the Ben Franklin Bridge. Ms. Bradford, an engineer, had testified at the hearing on June 26, 1998 before me the night before the court-ordered June 27th march, and her testimony was received into the record for purposes of this Determination Hearing (Ex. 74). She testified that in the prior week, the westbound toll traffic was variable, ranging from hourly lows on Sunday of 753 vehicles (6:00 - 7:00 A.M.) and 927 vehicles (7:00 - 8:00 A.M.) to highs of 4,980 vehicles on Friday (7:00 - 8:00 A.M.). (Ex. 74, Tr. at 69-71.) During the hour of the planned march, Saturday at 1:00 - 2:00 P.M., the westbound vehicle count had been 2,764 the previous week. (Id., Tr. at 69.) Because the bridge roadway curves and is crowned, drivers' visibility beyond the curve or crown is limited. (Id., Tr. at 72.) Traffic around the lightning bolt pinch-point for bridge access is especially dangerous, since vision of drivers is obstructed and multiple lanes merge into the few comprising the bridge deck. (Id. at Tr. 78- 79.) If pedestrians were permitted to march in the seventh lane, with the sixth lane next to it vacated as a buffer, only four lanes could be left for traffic (leaving a buffer between the oncoming traffic). (Id., Tr. at 82.) The four-lane configuration would result in more traffic congestion, even at the level of 2,700 vehicles on a Saturday afternoon. (Id.) It is unsafe, in Ms. Bradford's view, to commingle pedestrians and vehicles at this volume. (Id., Tr. at 84.) It is seen as unsafe to commingle the multitude of charity marathoners on the bridge even with the much lighter traffic load of 750 vehicles in the very early morning when the event is held, so that the DRPA closes the bridge entirely rather than compromise the safety of the participants. (Id.)
The DRPA's response on May 14th also suggested that the bridge's sidewalks be used by the marchers, but DRPA, at least at first, placed onerous and unnecessary conditions upon the union's use of the sidewalk. The North walkway over the bridge permits the public to walk from Philadelphia to Camden, with the sidewalk ending in the vicinity of the old DRPA administration building near the northern edge of the toll plaza on the Camden end of the bridge. The sidewalk is separated from the bridge roadway, being elevated above the road by 10 to 20 feet most of the length. The sidewalk is clearly visible to motorists and is no more than 10 feet above the roadway for hundreds if not a thousand feet of its length; its elevation above the roadway is at a maximum of about 20 feet in the area of mid-span before descending toward the road level at the ends.
For the planned pedestrian march on the public sidewalk, the DRPA initially placed unreasonable conditions outlined in Mr. Marinari's "talking points," stating "No Banners, Flags, Signs, etc on Walkway" (emphasis in original) (Ex. 15), and requiring the union to execute indemnification and insurance forms. The talking points were spelled out the next day in Mr. Marinari's letter to President Cedrone. (Ex. 11). The union's representatives did not actually agree to these terms but they promised to carry them back to the union for consideration. The insurance requests placed upon the union in Marinari's letter (Ex. 11) were harsh and impossible to meet on short notice, if at all. *fn8 There was no legitimate reason to impose requirements that the union, for example, post evidence of millions of dollars of insurance against explosions or agree to indemnify the DRPA for acts of the DRPA's own negligence pertaining to the sidewalk's usage and walk "as individuals as opposed to an organized group." (Ex. 13.) The DRPA, through Mr. Marinari, stated that if these conditions cannot be met, the DRPA "will have no choice but to close the walkway." (Ex. 13.) There is no evidence, however, that the DRPA actually closed the North walkway to the marchers, and, as discussed below, the walkway was open to the marchers on May 16th.
Mr. Marinari mistakenly believed, as he again asserted in testimony at the Disposition Hearing, that he was requiring no more of the union than had recently been required of the organizers of the "Million Women March" in 1997. He believed that the Million Women March was compelled to sign the same indemnity and provide the same insurance coverage as a condition to using the bridge's walkways to and from its Philadelphia demonstration. In fact, it was later discovered by Local 716's counsel that documents produced by DRPA at the Disposition Hearing did not include any signed indemnity agreement, nor had DRPA even asked the Million Women March for any evidence of insurance coverage of any sort, let alone the multiple types of motor vehicle, workers compensation, employers' liability, commercial general liability, and the other types of coverage it was requiring of Local 716 for this event. General Counsel Brown's explanations for DRPA's differing position toward the Million Women March were inconsistent as he first testified that nothing was required because the Million Women March had no organizational structure; when confronted with the evidence of a fairly elaborate organization (Ex. 66), Mr. Brown's testimony suggested that since the Million Women March was merely using the DRPA facilities (sidewalk and PATCO High-Speed Rail Line) in the ordinary way, no special permission was required and DRPA merely ran extra trains to accommodate anticipated volume.
The DRPA has had no coherent or consistent policy regarding insurance or indemnification requirements for organized groups using its bridge walkway. As discussed below, it was not free to impose the most stringent requirements upon the sponsors of Local 716's march under threat of prohibiting public walkway use altogether.
Mr. Marinari sent a second letter to Cedrone and Ruggiero later on Friday, May 15th, which softened the DRPA's stance regarding the walkway by waiving the requirements for the indemnification agreement and insurance certificate so long as the walkway is used by "individuals," since Local 716 was not taking responsibility for the march as an organized event. (Ex. 13.) This second May 15th letter stated, in relevant part:
DRPA's normal practice and procedure in allowing organized groups of people instead of individuals access to the walkway is conditioned on them providing an indemnification agreement and an appropriate insurance certificate. Accordingly, in the absence of providing an indemnification agreement and appropriate insurance certificate, the occupation or use of DRPA's property for purposes of a rally cannot be allowed. In the event that individuals are allowed access to the walkway, all participants will be able to continue their walk into Camden or return to Philadelphia via the North pedestrian walkway. (Ex. 13.)
This retreat represented a "loophole," in Marinari's view (Tr. 9/23/98 at 232-234). The loophole was intended to give permission for use of the walkway by the marchers as individuals while preserving for another day the policy of insisting that an organized group insure and indemnify. (Id. at 234.) The purpose was to avoid inciting the local union to use the roadway, since the marchers would be able to cross over the bridge using the walkway. (Id.)
4. The Reaction of Local 716
On the other hand, the union's contact persons, Ruggiero and Kelly, knew that the marchers were not permitted on the bridge roadway, and they relayed this information to President Cedrone. Cedrone testified he saw the Marinari letters close to the time of the march and was aware of the DRPA's concerns and the plans for use of the North walkway, but that he "didn't really have time to discuss it." (Tr. 9/28/98 at 214:19-20). One can only wonder why President Cedrone, about to stage an important labor rally and demonstration, did not take time to discuss and decide upon a proper route.
Ruggiero acknowledged that the union was not supposed to walk on the bridge and he asked to not be held responsible if "other members from other unions take it upon themselves to walk where they are not supposed to." (Ex. 12). Ruggiero undoubtedly discussed this with Cedrone, and Cedrone well knew that DRPA had forbidden a roadway walk. After the initial meeting on May 14, there is no evidence that Ruggiero, Kelly, or Cedrone (or anyone else on behalf of Local 716) stated to Marinari or anyone else at DRPA that the union and its allies were still expecting to use two lanes for a bridge march.
Cedrone apparently never did much to straighten out this situation before the rally and march or to take responsibility to assure that other marchers would not lead the march onto the bridge. Mr. Cedrone also apparently never instructed his members that they should use the walkways across the bridge. Perhaps Cedrone was unable to stand up to Kane of the NJIUC, who had anticipated marching on the roadway and was disappointed to learn that Local 716 had not completed arrangements to do so and that the line of march on May 16th would lead only to the western bridge approach at the Lightning Bolt in Philadelphia but not onto the roadway of the bridge. Or perhaps, as Kane testified (Tr. 9/28/98 at 64), the original idea to march upon the roadway came from Cedrone. This suggests that Cedrone continued to secretly harbor this plan without being straight with the DRPA or his own members. It might have been embarrassing to Local 716 if other unionists in solidarity with them walked on the roadway and Local 716's members did not join them, as Local 716's vice president Howard Moseley admitted.
5. Final Preparations for the March
This confusion by May 16th as to what was planned, what was allowed, and what was not, was a product of the mutual animosity, poor communication, and mistrust of these two sides in the protracted labor dispute. As the DRPA prepared for the May 16th events, it appeared to DRPA that Local 716 would not be participating in a walk across the roadway, but that the march would instead go by way of the pedestrian walkways. Even if there was not an "agreement" between DRPA and Local 716, all the "body language" of these parties toward each other indicated that the march from Philadelphia would use the North walkway across the bridge to a rally point on the Camden side that DRPA agreed to set up near the old administration building adjacent to the toll plaza.
Significantly, Ruggiero and Kelly were Local 716's designated representatives to work out arrangements and to communicate with DRPA on behalf of Local 716, and they toured the projected route with DRPA Lt. Frank Scorza and Bridge Manager Val Bradford on May 15th; that route involved using the sidewalk of the Fifth Street approach to the bridge, turning onto the South walkway for a short distance to the entry of the staircase to the pedestrian tunnel under the bridge, and then crossing under the roadway via the tunnel to the stairway leading up to the North walkway, and continuing over the North walkway for the walk of about 30- 45 minutes to the Camden end of the walk at the stairway down to the parking lot and administration building plaza for a post-march rally behind safety barriers to protect the assembled participants from the nearby westbound bridge traffic using the toll booths. Ruggiero affirmed this plan on May 16th by stationing himself at the point on the bridge sidewalk near Fifth Street where he would direct marchers to the pedestrian tunnel and not onto the roadway. Marinari regarded Ruggiero's positioning as a further communication that the marchers would use the walkway route in conformity with the "loophole" that Marinari had suggested. (Tr. 261:22 to 262:5.)
On the morning of May 16th, and through the time of the march, it appears DRPA abandoned its plan to close the North walkway to these marchers even if the Local posted no insurance and indemnification agreements. The DRPA outlined a path for the march that included utilizing the public walkway, and there is no evidence that DRPA intended to intercept the group of marchers if they attempted to use the North walkway for their demonstration march. In fact, the DRPA positioned various personnel, accompanied by Local 716 representatives, at the western access to the bridge to guide the marchers to the North walkway for their demonstration march over the bridge. As the march was to begin, the marchers were free to use the North walkway as a group. What happened instead is now discussed.
6. The May 16th Rally and March
Saturday, May 16th began with a noontime rally at Independence Park in Philadelphia (near Fifth and Arch Streets). Local 716 and Cedrone sponsored the rally and applied for the National Park Service permit to stage the rally. (Ex. 7.) Ruggiero confirmed to Marinari that everything was "fine," which Marinari took to mean that Local 716 marchers would not be walking on the roadway. Cedrone advised Philadelphia police officials that they would not march on the roadway (Tr. 9/24/98 at 47-50) and that they intended to march only to the "Lightning Bolt" monument near the Philadelphia end of the bridge but not on the bridge itself. DRPA Inspector David McClintock heard Cedrone explain his Lightning Bolt march plans to Philadelphia Civil Affairs unit Sgt. Linaman, so this plan was not a figment.
Ruggiero thought the marchers would cross the bridge using the walkway, not the roadway. Ruggiero stationed himself appropriately on the planned line of march near the South walkway tunnel entrance, and Local 716's Brian Ebberly placed himself at the tunnel exit at the North walkway to further direct the group's march.
Speakers at the rally expressed support for Local 716 and for striking transit workers in the SEPTA system. The rally was peaceful. No speaker threatened violence, nor did any speaker indicate that the marchers would enter the roadway. For that matter, no speaker advised the attendees to stay off the bridge roadway. Mr. Cedrone confirmed that the purpose of the march was to protest the layoffs of 18 union toll collectors and the hiring of part-timers, as well as the lack of a collective bargaining agreement. He testified that the main purpose was to hold a rally and he had not given much thought to the march.
At the rally, Mr. Cedrone announced to members and supporters for the first time that the Lightning Bolt monument would be the destination. At the end of the rally, he said the group would now "march around the Lightning Bolt" or "go see the Lightning Bolt" according to Kelly's recollection (Tr. 9/28/98 at 117.) Kane didn't recall any speaker mentioning the Lightning Bolt. Cedrone recollects telling the crowd they would be marching out of Independence Park and down 6th Street, seeing the Lightning Bolt. (Tr. 9/28/98 at 233, 241, 258.) Cedrone acknowledged this was probably the first information Local 716 members received to confirm the route of the march. *fn9
Not all the grievants heard it that way. Craig Lord did not recall hearing about the route. (Tr. 9/28/98 at 273.) Edward Lawrence didn't recall mention of taking a look at the Lightning Bolt. (Id. at 285.)
There are about as many versions of what happened when the rally became a march as there are witnesses. As best I can determine, the DRPA deployed very few police officers on the Philadelphia side and had many more standing by at the Camden side. The Philadelphia Civil Affairs Unit had three officers on site at the rally and had maintained periodic contacts with DRPA and the local union. DRPA Sgt. Carl Krauss was positioned next to Ruggiero near the South walkway next to the entrance to the pedestrian tunnel, with his duty being to direct marchers into the tunnel to the North walkway. DRPA's Lt. Lee was stationed at the North walkway with Mr. Ebberly, to direct marchers onto the North walkway. Lt. Scorza, Director Borelli, and Mr. Marinari were all in the area of the Wilson Building, located on a triangular plot of land where the Race Street and Fifth Street access roads come together, perhaps several hundred feet from Ruggiero and Krauss. DRPA Inspector McClintock and Lt. Robert Only surveilled the rally and both men stayed with the group of marchers, with Lt. Only midway up in the march and Inspector McClintock to the rear.
Mr. Kane of NJIUC together with representatives from other unions led the marchers, who numbered about 100, while Local 716's Vice President Howard Moseley was walking with President Cedrone, who has some difficulty walking and was not in the first rank; Ruggiero estimated Cedrone was in the front 20%. The group left the Independence Park from the rally site near Fifth and Arch, heading generally North toward Race Street in the direction of the bridge and the Lightning Bolt. If the group were going to the Lightning Bolt, as several witnesses anticipated, the marchers should have veered toward the left to 6th Street. Instead, most of the march veered toward the right after crossing Race and moved to 5th Street. *fn10 The group marched up 5th Street on the access road to the bridge. Instead of following the sidewalk of 5th Street, the group stayed on the pavement. Some sawhorses had been set up by the DRPA to guide the marchers along the Fifth Street sidewalk to the South walkway and the entrance to the pedestrian tunnel where Gregory Ruggiero and Sgt. Krauss waited (Ex. 62), but the group was already on the pavement side of the sawhorse barriers, rather than on the sidewalk, as the group walked along Fifth Street. The group was spread over about 150 feet from front to back by this time. The group toward the front was heard to chant, "Take the bridge, take the bridge," or words to that effect.
The marchers ignored the arrangements for the pedestrian walkway and went past the position of Sgt. Krauss and Mr. Ruggiero. Krauss told them not to enter the roadway, but he is unable to identify by name those whom he told. Ruggiero made no effort to stop them and did nothing to direct them to the pedestrian underpass, *fn11 contrary to the arrangements with DRPA in which he had participated.
The traffic was flowing while the first marchers were stepping onto the eastbound lanes of the bridge. Sgt. Krauss gestured holding out his hands to stop the marchers and said to the marchers they would be arrested. Lt. Scorza testified he saw Krauss gesture and Krauss shout the instructions to "use the sidewalk!" A group of marchers did not go onto the roadway, while others did so, including 11 of the 12 grievants, *fn12 who either did not see and hear Krauss and Scorza or ignored them. I do not find Mr. Marinari's testimony that he personally told the marchers to stop (Tr. 9/23/98) to be credible. Instead, I believe Marinari's testimony when he first gave a version of this event (Tr. 9/22/98) to the effect that when he saw the marchers advancing onto the bridge, he called out to Ruggiero, "Greg, Greg!" to get Ruggiero to be more assertive in stopping them, after which Marinari turned his attention to stopping traffic. There was no verbal order from Marinari even to the front line of the marchers.
There is a dispute whether the marchers stepped in front of moving cars as the front of the column reached the bridge roadway. Considering all versions of this, I find it most credible and likely that the following occurred. Traffic was moderately busy in both directions on the bridge around 1:00 P.M. Contrary to President Cedrone's incredible testimony, there was no prearrangement with the Philadelphia's Civil Affairs Unit to stop the bridge traffic nor to permit the marchers to walk on the Ben Franklin Bridge roadway; the Civil Affairs Unit had no jurisdiction on the bridge, nor did anyone else have such an understanding of their role. As the marchers began to enter the bridge roadway, eastbound traffic was stopped by the quick reaction of DRPA personnel including Mr. Marinari, Sgt. Krauss and Lt. Scorza. I do not find, however, that Mr. Marinari ordered the marchers not to enter the bridge, since it appears from the testimony of Mr. Ruggiero and Sgt. Krauss that Mr. Marinari was not at that place at that time. Likewise, testimony of some grievants that Lt. Scorza was gesturing to permit the marchers to step onto the bridge is not accurate, since his own testimony that he was gesturing to stop traffic is more credible. There is also no evidence that any marcher literally stepped in front of the cars, no near misses, no squealing brakes. *fn13 The bridge traffic was stopped, I find, not due to granting permission to the marchers but instead through a protective concern for the marchers' and motorists' safety.
The eastbound traffic (that is, the traffic headed in the same direction as the line of march) stopped first. The westbound traffic was stopped at the New Jersey toll booths and took several minutes to clear the westbound lanes on the Philadelphia end. Most marchers stayed in the two southernmost lanes, i.e., Lanes 6 and 7. Many of the marchers headed Easton the bridge, others went on the walkway, and some dispersed altogether. All traffic was stopped for about 70 minutes in both directions. Traffic backed up on the Philadelphia approaches such as Race Street, Sixth Street and Fifth Street, as well as on the Camden approaches to the toll booths. No marcher was described as actually gesturing to stop traffic.
The marchers were mostly orderly and peaceful, and some children accompanied the adults. The marchers stayed generally in the three right hand lanes, even when the whole bridge was empty of traffic, as a videotape of the incident discloses. (Ex. 1.)
There is no testimony that any grievant uttered threats during the march, although Mr. Kane of the State Industrial Council, who is not an officer of Local 716, exchanged heated words with Mr. Marinari as the march progressed, stating to Marinari that the DRPA should move the part time toll takers out of the toll booths as the marchers approached so as to avoid taunting. Marinari heard a more pointed threat. Marinari regarded this as a threat by Kane, but Kane's actual intent was unclear and he may have made the statement for dramatic effect rather than as a threat to harm the non-union toll takers. Kane's words were ill advised and incendiary in any event, because they could reasonably be construed as a threat of physical violence even though the rest of the marchers did not seem to be in a violent mood. No DRPA employee is reported to have endorsed Kane's remarks, and the actual likelihood of violence directed against the part-time toll takers was very small.
The two DRPA officers who actually accompanied the marchers on the bridge to keep order -- Inspector McClintock and Lt. Only -- did not order the marchers to stop. McClintock testified to hearing someone, unidentified, shout during the march, "Let's go to the booths and throw the scabs out!", which referred to the part-time non-union toll takers, but he didn't include this in his incident report nor did he identify any grievant as the speaker. Children were part of the march, and dozens of law enforcement officers in vehicles were by that time mobilizing on the eastern down sweep of the bridge between the toll booths and the marchers who were approximately at mid-span. Also, the videotape record of portions of the march contains chanting by various groups of marchers, such as, "Hey, hey, ho, ho, union busters got to go." (Ex. 1, about 1:07 PM), but no suggestions of violence. Marchers carried signs such as "Unfair to labor." (Id.) There was no destruction of DRPA property. No marcher asked any on-duty DRPA employee to cease working.
The march ended when the group turned around to head back toward Philadelphia on the roadway. Cedrone claimed he thought no one would be arrested if the marchers returned to the Philadelphia side, that he had been promised a "deal" by one of the officers of the Philadelphia Police Department Civil Affairs Unit. There is, again, no corroboration for Cedrone's alleged belief on this point. The marchers were then arrested without undue force (so far as the videotape record discloses, Ex. 1, and there being no testimony to the contrary), and they were removed from the bridge in vehicles supplied by various area law enforcement agencies to accommodate about 100 arrestees. Several dozen of the arrestees were not processed, being let go by a police officer prior to booking. Others were charged with obstructing traffic.
7. Assessment of Events of May 16th
I find that none of the grievants participated in a strike or work stoppage as these terms are defined in Article VII of the agreements. They did not call for or participate in a work slowdown or stoppage, nor did they encourage on-duty employees to do so. Moreover, the DRPA has not shown that these grievants intended to stop the traffic on the bridge or to disrupt thereby the collection of tolls. Stray threatening remarks uttered by Kane, who is not an officer of Local 716, are not attributable to these grievants because the dominant purpose and behavior was peaceful and non-destructive.
Traffic was stopped because of the march, by DRPA officers and by Philadelphia police officers. I find that DRPA has not produced sufficient evidence that these grievants intended to stop traffic. At most, these employees intended to march in a commingled fashion with the eastbound traffic, with the group occupying the right-hand lane while traffic steered clear. While such a march is not prudent and can lead to serious injury through accidents, the concept of a commingled march in a single lane while traffic flows is not unfeasible or unthinkable. Such a commingled march did in fact occur six weeks later, on Saturday, June 27th, pursuant to his court's order entered the night before, which compelled the DRPA and Local 716 to cooperate and coordinate with one another to enable an orderly march of up to 100 persons occupying the far right eastbound lane (i.e., Lane 7) with the next lane (Lane 6) as an unoccupied buffer. *fn14
On May 16th, at least in hindsight, it was probably unnecessary for DRPA to stop the westbound bridge traffic. That the westbound traffic was stopped at the toll booths was commendable and motivated by DRPA's need to make a quick decision when the unanticipated turn of events put the marchers onto the bridge. The DRPA didn't realize that the marchers would actually go onto the roadway of the bridge until some unannounced change of plans, away from the "Lightning Bolt" destination, took hold and caught DRPA by surprise. But this stoppage of traffic in the westbound lanes, which is also the revenue-producing direction (since only westbound traffic pays the tolls), was not needed to protect marchers in eastbound Lanes 6 and 7.
It was not reasonably foreseeable to these marchers that all traffic would be halted by DRPA and that the collection of revenue would be stopped for 70 minutes. It was more foreseeable, however, that the march would cause all eastbound traffic to stop, or to be stopped, as the grievants and others walked, unannounced and contrary to the plan for use of the North walkway, on the roadway surface.
The eastbound traffic was reasonably stopped by the DRPA in response to the unauthorized march, and this temporary interruption to the flow of eastbound traffic lasted 70 minutes, to the inconvenience of the public caught in the massive eastbound traffic jam. This temporary interruption in the eastbound flow of several thousand vehicles during the 70 minutes was a substantial disruption in service to the public. Because Local 716, in the end, failed to apprise DRPA that it still intended to march over the roadway and not on the public walkway, the DRPA did not have the opportunity to coordinate a relatively safe passage with commingled (at least westbound) traffic. As a result, the May 16th march created an unsafe condition. The grievants also took the risk that, because of catching DRPA off-guard, the DRPA would overreact to the emergency.
I find this conduct did not rise to the level of a strike or work stoppage under Article VII. Although there was some mindlessness and confusion about the march route, and a lack of direction or planning by President Cedrone, I do not find that these grievants intended to cause a complete stoppage of traffic on the bridge. No grievant was on duty, and none encouraged any on-duty employee to stop work. The grievants marched in such a fashion that traffic westbound should not have been affected, while traffic eastbound was prudently stopped by DRPA for safety reasons but probably could have continued to flow, with the attendant risks of commingling.
I also reject the notion that the grievants reasonably believed they had permission of DRPA to walk on the roadway. DRPA gave no indication of permission, nor was there any precedent for such bridge use. In stopping traffic, the DRPA officers acted in the emergency only for the safety of the marchers and motorists. The North walkway route had been opened to the marchers, and the leadership of Cedrone, Moseley, Ruggiero, and Kelly were utterly ineffective in directing Local 716's members to the walkway route instead of the bridge deck.
I find that the grievants had other, more reasonable options for their expressive conduct than taking to the roadway. The North walkway was available by the afternoon of May 16th, and the route was open and fully appropriate for the demonstrators' purposes of crossing the bridge while getting attention for their point of view that DRPA was unfair to Local 716. The North walkway is easily visible to motorists for much of its length, most especially at the ends of the bridge. If Local 716 had followed through with this plan, the peaceful march would have gone forth without stopping traffic or endangering motorists or marchers. The grievants could also have taken their protest to the Lightning Bolt monument with only minimal disruption of traffic as marchers crossed the streets to it; public visibility would have been high, and DRPA made no attempt to prevent a march to or around the Lightning Bolt when DRPA officials believed that to be the destination. In choosing the bridge deck for their demonstration, especially after the Union's representatives gave indications to DRPA that the Lightning Bolt and the North walkway would be the locales, the grievants chose the most unsafe and disruptive place.
The disciplinary consequences, while not involving a strike or work stoppage under Article VII, above, are considered in Part D, below.
8. Conduct of Edwin Mosley
The last factual dispute about the events of May 16th pertains to grievant Edwin Mosley: Did Edwin Mosley participate by walking about 100 yards on the bridge deck before being confronted by Mr. Marinari and leaving the bridge? The DRPA terminated Mr. Mosley's employment because it alleged he was a full participant in the May 16th events on the bridge deck, see Exs. 29 & 42.
The testimony of Mr. Marinari and Mr. Mosley is in agreement that the two men met during the early stage of the march somewhere in the vicinity of the western end of the bridge, and that Mosley left the area as a result of the encounter. But Marinari says he ran into Mosley who was moving quickly on the bridge deck to catch up to the marchers, about 100 yards East of the stanchions, well onto the deck, while Mosley says this encounter occurred on the Fifth Street approach to the bridge, near Greg Ruggiero's post on the South walkway entrance. Mosley, an ordained minister, testified he was in attendance to "pray for unity" as the chaplain of Local 716. He said he arrived late because he could not find a space to park. He recalls Marinari stating to him, "Today's not a good day for anyone to be on the bridge," and "Anyone on the bridge would be fired," and Mosley told him he was just there to pray, and he left the area immediately after seeing Mr. Marinari.
A newspaper article confirmed Mosley's recollection, for it quoted Marinari as telling the reporter, Geoff Mulvihill, that he spoke with Mr. Mosley on the approach to the bridge, which he said is technically part of the bridge, indicating that's why Mosley would be terminated. (Ex. 70.) Although Mr. Marinari denied making such a statement to the reporter, no logical reason suggests that the reporter fabricated the quote.
Other witnesses do not support the DRPA's version. Inspector McClintock did not see such an encounter, nor did he recall seeing Mosley there. No other DRPA witness placed Rev. Mosley on the bridge, nor did the videotape. Ruggiero testified he noticed Mosley who appeared after the marchers had gone past, and Mosley did not go on the bridge but remained near him at the approach.
Mosley also produced alibi evidence to suggest he could not have been on the bridge when Marinari says he encountered him there. This evidence consists of two Atlantic City Expressway toll receipts from the Egg Harbor Tolls, time-stamped 2:08 P.M. and 9:30 P.M. (Exs. 71A & B.) Since it is possible to reach the Egg Harbor Tolls by 2:08 P.M. even if Mosley had walked some distance onto the bridge around 1:00 P.M. or a few minutes later, the evidence is not helpful either way. Mosley could have been on the bridge or near it and still could have reached Egg Harbor an hour later.
Neither version of the Marinari-Mosley encounter commands strong support. On the one hand, no witness but Mr. Marinari recalls seeing Rev. Mosley on the bridge itself. On the other hand, Mr. Mosley was indeed late for the march, and that he may have been hurrying up the bridge to catch up, as Marinari recalls, is consistent with his lateness. Also, no witness places Marinari off the bridge at any time after the march entered the roadway, and we know Marinari himself eventually caught up to the marchers near midspan and had the confrontation with Kane there. Further, if Rev. Mosley intended to "pray for unity" during the march, as he said, it is logical he would have sought to join the marchers rather than to remain a half-mile away at the approach to the bridge. I am constrained to note, however, that when the DRPA attempted, at the hearing, to confront Rev. Mosley with his allegedly inconsistent prior statements from a predisciplinary hearing, it emerged that Mr. Marinari had supervised the taping of that meeting, that he denied the union's representative permission to tape it, and that Mr. Marinari failed to produce copies of the tape to Local 716 thereafter, stating that his tape had been lost or garbled, it is unclear which. (See Tr. 9/28/98 at 173-177.)
On balance, DRPA has not proved Edwin Mosley entered the bridge deck as charged. Mr. Marinari's recollection is incorrect. If Edwin Mosley walked only upon the approach road after the marchers had passed and after traffic was stopped, his conduct is of no consequence. The DRPA has also failed to show good cause for any lesser discipline against Edwin Mosley. It is therefore my determination that Edwin Mosley be returned to his employment with back pay and his seniority restored.
D. Violation of Other Work Rules
Although the conduct did not amount to a prohibited "strike" or "work stoppage," I find that the eleven grievants violated other reasonable work rules by marching on the roadway in a manner disrupting bridge traffic for 70 minutes.
At the outset, I reject Local 716's contention that the DRPA Work Rules do not apply to DRPA employees who are not on duty. This argument does not require me to define the outer reaches of an employer's work rules, such as whether these rules could reach purely private, off-the- job conduct unrelated to the employment. The rules undoubtedly can reach employee conduct on DRPA premises, whether that employee is "on the clock" or off duty. Here, each grievant was off-duty, and no on- duty employee was alleged to be involved, but everything of disciplinary moment occurred on the DRPA's premises, namely, on the Benjamin Franklin Bridge, and it all related to the terms of employment. The first sentence of the Work Rules gives fair notice that this is so, stating (Ex. 49):
The orderly and efficient operation of DRPA requires therefore all employees to maintain self-discipline, responsibility and adherence to proper standards of conduct at all times.
This "at all times" clause, at the least, embraces conduct by employees on DRPA property pertaining to employment whether on-duty or off-duty.
In addition to charging the grievants with participating in an unlawful strike or work stoppage under Article VII (dismissed above), the DRPA has alleged that the grievants violated DRPA Work Rules, namely, Work Rules 3A, 3B(7), and 3C(5), (6), (8), and (13). These work rules (Ex. 49) applied to all employees on the date of the march.
DRPA Work Rule 3A states:
In keeping with DRPA's purpose and responsibilities, all employees shall at all times display the highest standards of courtesy, civility, and decorum toward our customers, visitors, fellow workers and the general public.
DRPA Work Rule 3C states:
The following acts and/or conditions are similarly contrary to DRPA rules. A violation of such rules shall constitute cause for reprimand, or suspension or dismissal, as DRPA deems appropriate under the circumstances:
(5) Causing a distraction to or distracting any on- duty employee
(6) Use of DRPA personnel, facilities, tools, equipment, time or other DRPA assets for unauthorized purposes.
(8) Failure to adhere to all applicable safety rules and regulations.
(13) Failure to comply with any applicable rules, regulations, instructions, procedures and policies, oral or written, issued by supervisory or managerial personnel.
This list of infractions is obviously redundant and overlapping, as the DRPA has defined in several different ways conduct that is inappropriate because it is disruptive, disorderly, or unsafe and therefore incompatible with serving the public. I will discuss violations for these lesser offenses momentarily, after first discussing the most serious remaining charge, namely, "insubordination" under Work Rule 3B(7).
1. Insubordination under Work Rule 3B(7)
DRPA Work Rule 3B(7) states as follows:
Offenses for which any employee may be subject to immediate dismissal include, but shall not be limited to:
(7) Insubordination, including but not limited to, refusal to promptly obey a verbal or written order of supervisor or managerial representative....
I find that DRPA has proved Anthony Cedrone committed insubordination. Anthony Cedrone is the only grievant who was shown to be actually aware of the May 14th verbal directive of J.P. Marinari that the pedestrians were barred from the bridge deck and the two Marinari letters of May 15th (Exs. 11 and 13) denying access to the bridge deck. DRPA's refusal to grant roadway access was made "perfectly clear" to Ruggiero (Tr. 9/24/98 at 237.) Ruggiero discussed the May 14th oral directive and the May 15th letters with Anthony Cedrone and Mr. Kane, while Kelly recalled discussing the May 14th oral directives with Anthony Cedrone as well as Kane. Vice President Howard Moseley testified he did not know about Marinari's May 15th written directives in the letters, because he had been working when they were received at the union office and didn't learn about them until after the march. Anthony Cedrone acknowledged receiving the May 15th Marinari letters, but he didn't take time to discuss them. Thus, aside from Ruggiero and Kelly, who are not grievants, only Anthony Cedrone received the written orders not to enter the roadway.
Normally, I might impute Anthony Cedrone's knowledge of these directives to all the members of his local who participated under the presumption that a reasonable union officer is duty-bound to pass such important information to the membership before they act on it. But in the present case, perhaps due to the shortness of time, Anthony Cedrone's communications with his other officers and his members were so incomplete, and frankly so inept, that I cannot assume he advised the other members of Marinari's verbal and written orders. Mr. Anthony Cedrone has been shown to violate Work Rule 3B(7) by entering the bridge roadway knowingly contrary to J.P. Marinari's directive.
For the other 10 grievants, the DRPA has not proved conduct rising to the level of insubordination as defined in Work Rule 3B(7). The language, "refusal to promptly obey a verbal or written order of a supervisor or managerial representative" connotes a knowing and willful failure to abide by a clear and direct communication -- either written or verbal -- from a supervisor or managerial representative. DRPA has not shown such a clear order was given and understood and violated. These 10 grievants were part of a much larger group of marchers. Persons near the front of that group had somewhat more opportunity to see Sgt. Krauss and Lt. Scorza, as Krauss gestured and shouted to the marchers in front to "use the sidewalk!" according to Scorza's testimony. Krauss also recalled shouting that the marchers would be arrested if they entered the roadway. There was a lot of noise in the march, such as the chanting mentioned above, as Krauss confronted the marchers. Some in the march, in fact desisted and some took the walkway, while others entered the bridge. None of the grievants acknowledged hearing Krauss's order, and Krauss does not identify giving the order to any particular person. I find insufficient proof that the remaining 10 grievants heard and understood Sgt. Krauss's order, and doubt that most of them could have seen or heard it unless they were in the first ranks of the march. It is my determination, therefore, that the charge of insubordination, pursuant to DRPA Work Rule 3B(7), should be dismissed for lack of evidence as to the remaining ten (10) grievants: Mitchell Anderson, Gerard Cedrone, Gene D'Alessandro, Edward Lawrence, Craig Lord, David McCarthy, Howard Moseley, Daniel Mullen, Joseph Shaw, and Michael Smith.
2. Courtesy and civility toward the general public under Work Rule 3A.
Work Rule 3A is a general hortatory statement demanding the highest standards of courtesy, civility, and decorum toward fellow workers and the general public. Thus, a discourteous vulgar outburst by a toll collector to a patron would offend Work Rule 3A, and extreme discourtesy has been met by DRPA with progressive discipline including termination in the past. (Tr. 9/23/98 at 302.) Work Rule 3A does not apply to the present situation, however, because no grievant has been shown to have been directly discourteous to another employee, supervisor, or patron. The march itself was conducted in a civil manner. No bridge patron, despite the traffic jam, filed a complaint with DRPA, so far as the record shows. There's been no suggestion that these grievants intended discourtesy to the public, although, as discussed below, the impact of their conduct was to cause substantial inconvenience to thousands of travelers. Overall, however, Work Rule 3A does not fit the circumstances of this case and the charges under this rule will be dismissed.
3. Other violations under Work Rule 3C(5), (6), (8), and (13).
DRPA has proved that the 11 grievants caused a serious distraction to significant numbers of DRPA employees in violation of Rule 3C(5) by conducting their march on the bridge roadway. Dozens of DRPA supervisory and law enforcement personnel had to respond to this unauthorized conduct in order to block traffic, safeguard the unauthorized marchers on the roadway, and protect the part-time toll takers (who were removed from their booths as a precaution). If the grievants had used the North walkway, this distraction would not have occurred in any disciplinary sense.
DRPA has also proved that the 11 grievants used DRPA facilities -- namely, the Benjamin Franklin Bridge deck -- for unauthorized purposes, in violation of Rule 3C(6). No grievant could reasonably believe this use of the roadway decking had been authorized. As mentioned above, Anthony Cedrone's belief that the Philadelphia Civil Affairs unit authorized this use was fictional. Kane's testimony that he and other marchers were "invited to walk across the bridge" by the police officers is also baseless and bespeaks his failure to take responsibility for his decision to lead the march across the bridge, despite the consequences. Howard Moseley could point to no basis for believing the deck use was authorized, and quite understandably, he hesitated before entering the roadway because of his doubts about authorization and his knowledge of the DRPA policy against commingling pedestrians with vehicles. No other grievant could have reasonably sized up the situation and concluded that the deck use was authorized: sawhorses directed marchers toward the tunnel, the Local 716 liaisons had arranged for the tunnel and North walkway use, traffic was flowing in moderately heavy volume, no lanes had been closed off, all gantry lights were green, and vehicles were whizzing past as the marchers neared. That the handful of DRPA personnel on the western entrance to the bridge, including Sgt. Krauss, Lt. Scorza, Inspector McClintock and Lt. Only, did not proceed to immediately arrest the 100 or so marchers who proceeded as a group can hardly constitute "authorization."
The only grievant who gave testimony suggesting he believed President Cedrone had gotten a permit to march on the bridge was Michael Smith, a 29-year DRPA employee; Mr. Smith said he conversed with Cedrone at the rally and thought he heard Cedrone say he had two permits -- one for the Independence Park rally and one for the bridge -- but he also expected the march was only to the Lightning Bolt and thought Cedrone was "vague" about whether it would continue on the roadway or walkway. (Tr. 9/28/98 at 291-295.) While Mr. Smith was highly credible in his testimony that he would never have gone onto the bridge deck if ordered not to, his faith in Cedrone having some sort of authorization was misplaced, and Mr. Smith was unreasonable in believing him in light of Cedrone's vagueness, confusion, and double-talk about whether the local union had received authorization and whether the march would be to the Lightning Bolt, the walkway, or the roadway. Again, if the grievants had marched on the North walkway, such a use would have been authorized (and probably constitutionally compelled, as discussed below) and DRPA could not discipline a peaceful walkway marcher. I find all 11 grievants violated Work Rule 3C(6).
DRPA has not proved that the 11 grievants failed to adhere to "all applicable safety rules and regulations," and no violation of Work Rule 3C(8) has been shown. The DRPA's termination letters allege that the grievants violated safety rules and regulations without specifying which particular rules or regulations were broken. At the hearing, DRPA produced no evidence of particular "safety rules or regulations," offering instead a memorandum issued by the "Toll Bureau" entitled "Traffic Safety When Walking To/From Toll Lanes." (Ex. 56.) That document pertains to toll takers crossing the toll lanes to enter and exit their work stations in the toll booths. The document specifies that the toll collectors must wear orange vests and cross carefully after maintaining eye contact with the driver of any vehicle. (Id.) Mr. Marinari was unaware of any prior incident in which a DRPA was terminated due to safety violations. Mr. Marinari also conceded that failure to wear orange vests has not resulted in discipline, such as during the June 27th court-ordered march when no one, either from management or from the rank-and-file employees, wore any protective gear in the commingled march. Moreover, it does not appear that the Toll Bureau Memorandum addresses the safety precautions to be taken on the bridge roadway. Since Work Rule 3C(8) requires proof of violation of written "safety rule" or "regulation," the DRPA had the burden of pointing to a safety "rule" or a safety "regulation" that governed the interface between vehicles and employees on the bridge or the precautions to be taken when a lane is to be closed to traffic because people are present on the roadway, and DRPA has not done so. That the commingling violates "common sense" or "prudent safety practices" is quite evident, but it does not appear that any written safety rule, as such, has addressed this. Therefore, the charge that the grievants violated Work Rule 3C(8) will be dismissed.
We turn next to Work Rule 3C(13). In contrast to Work Rule 3C(8)'s concern with written safety rules, the broader language of Work Rule 3C(13) addresses non-compliance with "any applicable rules, regulations, instructions, procedures and policies, oral or written, issued by supervisory or management personnel." (Ex. 49, emphasis added.) DRPA adduced ample proof that it has had a longstanding policy and procedure precluding the commingled presence of pedestrians and vehicles on the bridge roadway. This non-commingling policy has been well explained by Bridge Manager Val Bradford, whose testimony on June 26, 1998 was incorporated into the record of this case, as discussed above. Ms. Bradford and essentially every DRPA witness explained that it is dangerous to have pedestrians on the deck with speeding cars and trucks going past and no shoulder on the roadway for protection. The deck is not designed for pedestrians, and its use is limited to construction crews, emergency personnel and the like. Even precautions like coning off a lane and using a bumper truck with flashing lights will not guarantee safety of pedestrians from errant or inattentive motorists. Also, closing several lanes for pedestrian use during times of moderate or heavy volume will restrict traffic flow to just four remaining lanes, presumably two in each direction, with backups being predictable. No grievant professed surprise or ignorance about the existence of this policy.
Several witnesses were questioned whether the DRPA had made meaningful exceptions to the non-commingling policy, such as by allowing news reporters or camera crews to work on the roadway while traffic sped by. There appeared to have been no official sanction for such uses, if they occurred. Likewise, anecdotal reports of allowing employees to drive to midspan to watch huge Naval vessels like aircraft carriers pass below, while traffic flow continues, probably do not even concern the Benjamin Franklin Bridge, but rather, the Commodore Barry Bridge, which is downstream from the Philadelphia Naval Yard and which has, in any event, a different configuration and much lighter traffic load than the Ben Franklin Bridge due to its location.
The complete closure of the bridge for an hour early on a Sunday morning when traffic is lightest for the crossing of participants in a charity marathon or bike-athon is not an exception to the non- commingling policy but a reinforcement of it. In order to move thousands of pedestrians and bicyclists over the bridge from state to state, the entire bridge must be closed to vehicles because commingling would be too dangerous and too constricting of traffic flow on the remaining lanes anyway, even at lower volumes, as Val Bradford testified, above. In any event, no one could recall permitting commingling for any public pedestrian activity upon the Benjamin Franklin Bridge deck.
The grievants have been shown to have violated the non-commingling policy of the DRPA, which although unwritten has been consistently enforced by DRPA management and security personnel upon the Benjamin Franklin Bridge, and DRPA has therefore proved these 11 grievants violated Work Rule 3C(13).
4. Summary of Work Rule Violations
The DRPA's charges have been proved against Anthony Cedrone for insubordination in violation of Work Rule 3B(7), and against all 11 grievants with respect to causing a serious distraction to significant numbers of DRPA employees in violation of Work Rule 3C(5), and for the use of the bridge deck for unauthorized purposes in violation of Work Rule 3C(6), and for the breach of DRPA's non-commingling policy in violation of Work Rule 3C(13).
The DRPA's charges of insubordination under Work Rule 3B(7) are dismissed as to all grievants except Anthony Cedrone, and the charges of discourtesy and incivility under Work Rule 3A, and of violation of safety rules and regulations under Work Rule 3C(8), are dismissed as to all 11 grievants.
Whether the discipline for violations found above would be compatible with the grievants' rights under the First Amendment of the United States Constitution is next discussed.
E. Whether the Conduct is Protected by the First Amendment Local 716 alleges that no discipline can be imposed for the May 16th march because the expressive conduct is protected by the rights of free expression and assembly under the First Amendment of the U. S. Constitution. Local 716 alleges that DRPA acted unconstitutionally in denying Local 716's request for a march upon two lanes of the bridge, and that the grievants were free to ignore this unconstitutional restriction upon their right to free expression "with impunity," according to the Union's Written Summation on Constitutional and Other Issues (hereafter "Union's Const. Br.") at 2, quoting Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1968). Local 716 argues that it made a sufficiently timely request for this accommodation and that the DRPA ignored its responsibilities, as an arm of the states of New Jersey and Pennsylvania, to abide by the First Amendment, citing Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961). The local union asserts that the DRPA, by the time of the march, had made no reasonable effort to accommodate the march because, not only was the bridge deck ruled out of bounds, but so too was the North walkway, due to the prohibitive conditions announced by J. P. Marinari, as discussed above. (Union's Const. Br. at 7-9.)
DRPA argues, on the other hand, that the road deck of a busy interstate bridge is not a place where expressive conduct by groups of demonstrators must be accommodated, and that by the day of the march the DRPA had arranged for use of the North walkway to cross to a demonstration site as a reasonable accommodation that the grievants rejected and ignored.
Local 716 argues that DRPA had no "narrow, objective and definite standards" for permitting picketing or parading upon its bridge, citing Shuttlesworth, supra, 394 U.S. at 151-53. The DRPA instead has allegedly engaged in impermissible content-based restrictions upon the public use of its bridge, permitting some uses while curtailing others at whim, a type of content discrimination in regulation of speech which is "presumptively impermissible," City of Ladue v. Gilleo, 114 S. Ct. 2038, 2047 (1994) (O'Connor, J., concurring). It is, of course, well established that the government "has no power to restrict expression because of its message, its ideas, its subject matter, or its content...." Chicago v. Mosley, 408 U.S. 92, 95-96 (1972). Restrictions of the right to assemble and parade in a public space therefore may not be based upon the content of the message such that a group having a favored message gains permission which a disfavored group is denied. The Supreme Court has emphasized that such permission to parade upon public streets and sidewalks may not be arbitrarily withheld based on content, stating:
Even when the use of its public streets and sidewalks is involved, therefore, a municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade, according to their own opinions regarding the potential effect of the activity in question.... Shuttlesworth, supra, 394 U.S. at 151-53 (footnotes omitted).
Thus, we must first consider whether DRPA's ban of the roadway's use for a demonstration march was based on viewpoint discrimination in which DRPA's proposed concern for safety was pretextual. I find, based on the evidence at the disposition hearing, that DRPA's ban of Local 716's roadway march was not based on impermissible viewpoint discrimination. The simple fact is that no demonstration march had ever been permitted upon a DRPA bridge, so DRPA was not favoring some other bridge deck march's viewpoint while disfavoring Local 716.
The charity walk-a-thon and bike-a-thon across the bridge is not similar to the Local 716 march. The bridge is a conduit for those long- distance fund-raising events; thousands of participants are permitted to traverse the bridge at a truly light traffic hour as one link in a long route. Their purpose in using the bridge is literally "to get to the other side," not to use their presence on the bridge deck to express a viewpoint. The grievants, in contrast, sought to demonstrate upon the roadway because of its high impact, visibility and potential for disruption of traffic to make a point about their demands for a fair contract. Where this march, though peaceful, had no antecedent in marches for expression of other opinions, the DRPA's ban on the roadway's use did not amount to viewpoint discrimination.
Of course, a group does not need to point to an antecedent demonstration in order to enjoy the right to free expression in a public place. In any particular place, someone must be the first to attempt to use it for expressive action. Thus, a public place must be available for such demonstrations if it is a traditional public forum or a designated public area under the categories of Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983). The Supreme Court in Perry identified three categories of public fora to which First Amendment rights attach, with the breadth of such speech rights contingent upon the category applicable to the location in question. See Perry, 460 at 45-46. Such forum analysis identifies a "sliding scale" not an "all or nothing proposition." International Society for Krishna Consciousness, 691 F.2d 155, 160 n.2 (3d Cir. 1982).
The first category is the traditional public forum: "places which by long tradition or by government fiat have been devoted to assembly and debate" including municipal streets and parks. Perry at 45. Indeed, a public sidewalk is a category one forum, subject only to reasonable time, place, and manner restrictions if adopted by statute or regulations. United States v. Grace, 461 U.S. 171, 183-84 (1983). Independence Park, the site of the Union's rally, is a quintessential traditional public forum, and DRPA does not seek to impose discipline for anything said or done there. Activities that do not obstruct the public place or threaten injury to person or property, such as carrying a flag, banner, or device on the public sidewalks, may not be prohibited. Id. at 182.
The second category consists of public property which the state has opened for use by the public as a place for expressive activity," id., meaning locations that have been opened to the public debate by designation. Typical "second category" venues include municipal theaters, whether owned or rented by the municipality, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), and university meeting facilities, Widmar v. Vincent, 454 U.S. 262 (1981). As long as such an area is open, the government "is bound by the same standards as apply in a traditional public forum." Perry at 46.
The third category under Perry includes "[p]ublic property which is not by tradition or designation a forum for public communication...." Id. For instance, the Fort Dix military base, despite occasionally inviting civilian speakers and entertainers to appear, did not render itself a public forum for political candidates. Greer v. Spock, 424 U.S. 828, 839 (1976). An airport terminal which is not a traditional forum or one designated for public debate may ban all solicitation by fund-raising groups. Int'l Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992). Where a governmental area is not opened to expressive conduct, the government is "acting as a proprietor, managing its internal operations, rather than acting as lawmaker with the power to regulate or license...." Id., citing United States v. Kokinda, 497 U.S. 720, 725 (1990). The Third Circuit has, at least in dictum, placed certain highway areas into the third category, indicating, for example, that paraders could be prohibited altogether in the tunnels of the Pennsylvania Turnpike." Int'l Society for Krishna Consciousness, supra, 691 F.2d at 161.
Local 716 asserts that the bridge roadway is analogous to a municipal street where parades traditionally must be reasonably permitted because the bridge deck can accommodate a march and traffic at the same time. Union's Const. Br. at 19. Additionally, Local 716 cites the landmark case protecting the rights of civil rights marchers in the 1960's to walk peacefully along the highways toward their destination without interdiction and arrests by the sheriff and state troopers. Williams v. Wallace, 240 F. Supp. 100, 106 (M.D. Ala. 1965) (Judge Frank M. Johnson, Jr.) The Alabama Freedom Marchers had been repulsed at the Pettus Bridge on their march along Highway 80 from Selma to Montgomery, and Judge Johnson's injunctive order, enforced by the National Guard, assured their right to traverse the route, including the bridges. The DRPA points out that the Freedom March proceeded along the roadways, not upon them, and that the Pettus Bridge had sidewalks open to the public which were closed to the Freedom Marchers. Whether seen as viewpoint discrimination or as preclusion of assembly on a sidewalk area that is otherwise open to the public, the Alabama authorities violated the marchers' First Amendment rights to assemble and walk along the highways and cross the pedestrian walks of bridges on the same terms as the general public. Also, as DRPA's counsel has argued, the march along the Alabama highway did not interfere with the traffic on the highway. The Pettus Bridge precedent, so vital for protecting civil rights, nonetheless does not stand for the proposition that demonstrators can assemble on a highway and interfere with traffic with impunity.
In the sliding scale of forum analysis under Perry, the Benjamin Franklin Bridge roadway has none of the characteristics of a "category one" public space. This seven-lane artery crosses thousands of cars and trucks per hour in each direction at midday on a typical Saturday, as the only link between Pennsylvania and New Jersey in the ten miles between the Betsy Ross Bridge to the North and Walt Whitman Bridge to the South, and such limited access highway bridges have never been regarded as a forum for public discourse. There are no shoulders on the bridge deck, just seven solid lanes for vehicles.
This bridge has not become a designated area for such public debate by its annual temporary closures for the marathoners, bike-athoners and walkathoners who must use it to cross the river en masse as a small part of their routes. Anecdotes about news reporters broadcasting or filming a story from a closed lane, or of employees and friends standing near midspan on the roadway to watch as a ship passes below, do not suggest any pattern of designation of the roadway as a public forum. DRPA's assertion that it has never permitted commingling of cars and pedestrian members of the public on the roadway also holds up. The bridge surface therefore is not in "category two" of the Perry scale.
Under "category three," the bridge roadway may be closed to demonstrators entirely. Local 716 argues that this closure is impermissible because the DRPA has not addressed the subject in coherent regulations or policies. That the DRPA has adopted no written regulation concerning marches on the bridge deck is not relevant to "category three" analysis where any group of public pedestrians on the bridge deck interferes with traffic. The traffic regulations, including statutes precluding obstructing a highway, see N.J.S.A. § 2C:33-7, and statutes designed to promote pedestrian safety such as those prohibiting pedestrians on limited-access roadways, together with common sense, give ample justifications to prohibit pedestrians from high volume, limited access, no-shouldered bridge decks altogether. Stated differently, this bridge deck is like the tunnels on the Pennsylvania Turnpike mentioned by the Third Circuit in Int'l Society for Krishna Consciousness, 691 F.2d at 161, as public places that are not required to be opened for public pedestrian assembly and discourse.
In short, that the grievants had a right to assemble and to express grievances and seek governmental redress, does not mean they also have the right to stop or significantly interfere with traffic and bridge operations at a time and place of their choosing. The teachings of Cox v. Louisiana, 379 U.S. 536, 554 (1965), remain instructive today:
The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any pubic place at any tie....One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a forum of freedom of speech or assembly.
The DRPA, under the circumstances presented, was not compelled to allow the demonstration march to occur on the bridge deck on May 16th. Because the bridge deck is a "category three" public space, and because the march caused significant disruption of the bridge's function -- safe traffic flow -- the First Amendment does not protect the bridge's march from the consequences of such conduct.
Finally, the fact it may be possible to commingle pedestrians and vehicles on the bridge deck at some times under some conditions does not mean that the DRPA is compelled to do so. For a public space not associated with expression or debate, the government has the power to exclude speech and assembly which otherwise would interfere with the institution's functioning. For example, loud behavior may be excluded from the area adjacent to a school on a content-neutral basis, Grayned v. City of Rockford, 408 U.S. 104, 107 (1972). The Grayned decision summed up this sliding scale analysis of the time, place, and manner of regulating speech:
The nature of a place, `the pattern of its normal activities, dictate the trends of regulations of time, place and manner that are reasonable.' Although a silent vigil may not unduly interfere with a public library, ... making a speech in the reading room almost certainly would. That same speech should be perfectly appropriate in a park. The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time. Grayned at 116.
That it is possible to gather an assembly of persons onto the bridge deck does not matter; the demonstration march was basically incompatible with the bridge's use as a superhighway joining two states.
The DRPA's announcement of restrictions upon the union's use of the North walkway is a different matter. The bridge walkways are exclusively meant for pedestrians walking across the bridge. Separated from the roadway, rising above the roadway level by as much as 20 feet, the sidewalks present none of the safety concerns of commingling pedestrians with vehicles on the roadway. DRPA's initial reaction to Local 716's request for the roadway march was to place unreasonable conditions upon the sidewalk march, including banning signs, flags, and banners, plus requirements for indemnification and insurance that were all out of proportion to the risk and beyond what DRPA required of groups using its facilities in the past. The public sidewalk on the bridge is a "category one" space, and any power to regulate speech or assembly thereon is contingent upon even-handed enforcement of content- neutral regulations of the time, place, and manner of such use. Grace, supra, 461 U.S. at 182-184; Southeastern Promotions, supra, 420 U.S. at 556; Poulos v. New Hampshire, 345 U.S. 395, 398 (1953); Kunz v. New York, 340 U.S. 290, 293-94 (1951). Perhaps because DRPA has no consistent regulations pertaining to public walkway use, its initial responses to Local 716, proposing the walkway as the alternative to the bridge deck route, were both unreasonably restrictive (by the extent and nature of insurance and indemnification requirements) and discriminatory toward the content of the proposed message when compared with requirements placed by DRPA on other groups who were not protesting DRPA's employment policies. The initial sidewalk restrictions directed toward Local 716 thus failed to pass muster under the First Amendment's requirements for permitting peaceful and orderly public access and assembly upon public sidewalks.
In the end, however, DRPA had relented and made arrangements for use of the North walkway for the grievants and other marchers to proceed from the Independence Park rally to the available rally point near the administration building. As discussed at length above, on May 15th, DRPA personnel had escorted Local 716's representatives Ruggiero and Kelly on the very route that the marchers would be permitted to use. On May 16th, J.P. Marinari conferred again with Ruggiero to confirm that the sidewalk march plans were in place. The DRPA's deployment of security personnel for the march also reflected DRPA's plans to guide the marchers, assisted by Ruggiero, to the North walkway for the march across the bridge. There is no evidence DRPA intended on May 16th to stop the demonstrators from crossing the bridge if they used the North walkway. DRPA had relented upon its unreasonable terms and conditions on walkway use, since by the morning of May 16th, Local 716 had not signed any indemnification or insurance agreements, yet DRPA was permitting a walkway march to occur.
In summary, the grievants had the constitutional right to assemble and proceed peacefully across the bridge using the North walkway. They did not enjoy the right to parade upon this particular bridge deck. They could not have been stopped or punished for an orderly march on the North sidewalk had they chosen that path. When they stepped onto the roadway in the face of heavy traffic, they entered a zone which was not a forum for public assembly, debate, or discourse and that conduct could be precluded by DRPA consistent with the constitution. From the sidewalk, the demonstrative purposes of the march through visibility and publicity, could also have been preserved.
The grievants, by choosing to march on the bridge deck rather than the walkway, made the wrong choice. A peaceful walkway march could not be punished, while a disruptive roadway march can be punished.
This does not end the constitutional inquiry, however, because we must also examine whether the DRPA, in switching signals and arranging to permit North walkway use on May 16th, had nonetheless succeeded in giving these grievants the impression that they were forbidden from using both the North walkway and the bridge deck. If the DRPA, contrary to its constitutional duty, had created the impression that even a lawful march on the sidewalk would not be permitted, then fairness requires that the consequences to these grievants from making the incorrect choice of forum be mitigated.
I find that DRPA's oral and written directives of May 14th, which were repeated in the first letter of May 15th, created the impression that walkway use was being denied because of DRPA's insistence upon the unreasonable conditions of elaborate insurance and indemnification agreements, as discussed above. The second letter of May 15th represented a partial retreat by signaling the "loophole" which would permit walkway use without insurance and indemnification agreements for "individuals" who were participating, though not for Local 716 as a group. This latter "loophole," combined with the May 16th deployments of DRPA police personnel in a manner to facilitate the walkway use across the bridge to the administration building rally site, were merely evidence of DRPA's last-minute change of position about walkway use by the grievants, and this court has accepted this evidence, as discussed above. But this shift in DRPA's position was so subtle and non- definitive that these grievants probably did not know it. At the least, DRPA did not extend a clear signal that a walkway march could occur.
Nonetheless, the walkway march was more hypothetical than real. The Local 716 leaders never asked to march on the walkway; they wanted the bridge deck and that permission was properly denied. The possibility of the walkway as an alternative was first raised by Marinari for DRPA, not by Ruggiero or Kelly for Local 716, at the May 14th meeting. Significantly, other than Anthony Cedrone and his son Gerard Cedrone (Tr. 9/28/89 at 193) and Edward Lawrence (id. at 284), none of the grievants even mentioned having any knowledge of the possibility of a walkway march in their testimony before me.
On balance, I find that while the First Amendment did not protect those who marched upon the bridge deck, the DRPA had exhibited such confusion around the issue of the walkway use that some leavening of the punishment for the bridge deck march is warranted. Where DRPA fostered an atmosphere of intolerance to organized peaceful assembly on the walkway, this presents a significant mitigating circumstance in assessing the gravity of the grievants' misconduct.
F. Assessing Discipline; Vacating Discharges
I have found, in Part C above, that the DRPA's decision to terminate the grievants for the alleged violation of the no-strike clause of Article VII is not supportable. I have also found, however, that all grievants except for Edwin Mosley (see Part C.8, above) have been shown to have violated various work rules, as discussed above in Part D. Of the remaining eleven grievants, Anthony Cedrone was shown to have refused to obey the written order not to conduct the march on the bridge deck, in violation of Work Rule 3B(7), while the others were not shown to have had knowledge of this order, as explained in Part D.1, above. Further, all eleven remaining grievants were shown to have committed some of the other alleged work rule violations, including causing a serious distraction to significant numbers of DRPA employees in violation of Work Rule 3C(5), and for the use of the bridge deck for unauthorized purposes in violation of Work Rule 3C(6), and for breach of DRPA's non-commingling policy in violation of Work Rule 3C(13), all as explained in Part D.2 through D.4, above.
The discipline imposed, whether termination of employment or something less, must accord with the "just cause" provision of Article III, Section 7 of the collective bargaining agreement, supra, which simply states:
It is recognized that the DRPA may discipline employees up to and including the discharge of employees for just cause.
The "just cause" standard is a flexible concept that is capable of being applied to the myriad of situations that may arise in the workplace. Where a collective bargaining agreement requires a showing of "just cause" for discipline, the burden is upon the employer to prove guilt of wrongdoing, M. Volz & E. Goggin, Elkouri & Elkouri, How Arbitration Works (ABA Committee on ADR in Labor and Employment Law, BNA, 5th ed., 1997) at 905-06 (citations omitted). The arbitrator may "change or modify penalties found to be improper or too severe," id. at 913. The arbitrator must be faithful to the spirit of the collective bargaining agreement's mutual expectations regarding rights and responsibilities of management and employees in matters of discipline, and it is "axiomatic that the degree of penalty should be in keeping with the seriousness of the offense." Id. at 916 (citation omitted).
The most severe penalty -- discharge -- "is recognized to be extreme industrial penalty since the employee's job, seniority and other contractual benefits, and reputation are at stake." Id. at 905. Lesser sanctions include suspensions without pay for various periods of time and reprimands.
DRPA has argued that just cause for termination arises from "the Grievants' actions in entering into the roadway without authorization [which] created a disruptive and frighteningly unsafe situation and violated the DRPA's work rules, orders from DRPA to return to the sidewalk, and all reasonable `common sense' standards of employee conduct." DRPA Br. at 31.
Local 716 has argued, in addition to all issues discussed and considered above, that "even if this Court concludes that some discipline is merited, discharge is unjust." Union's Const. Br. at 35. Local 716 adds, "The arguments supporting the lawfulness of the grievants' conduct are substantial, the infraction, if such it be, only occurred on a single occasion, and the employer has specified that the past conduct of these grievants was irrelevant to its decision." Id.
I find that discharge from employment is not supported by good cause. This was not a "strike" or "work stoppage." This penalty is disproportional to the infractions committed by the grievants. I find that the misconduct, though serious, was not shown to be intended to shut down traffic on the bridge but rather to occupy one lane plus one buffer lane of that bridge while vehicles used the remaining lanes. Such commingling raises safety concerns, and due deference must be given to DRPA's assessment of the degree of danger presented by commingling. Although the march on the bridge deck was not constitutionally protected by rights of free speech and assembly, the DRPA did not indicate with reasonable clarity that it would respect those rights if the march was held on the walkway instead, because a walkway march is protected from imposition of unreasonable restrictions and conditions. Only Anthony Cedrone has been proved to be guilty of insubordination by refusing to obey the written order and directives of which he had personal knowledge. Other than grievant, Anthony Cedrone, the others have not been shown to have been aware of the direct order forbidding use of the bridge deck for a march, although all were aware of the policy of non- commingling and they violated it. The inconvenience to the public and the distraction to DRPA workers on duty have been taken into account, as has the peaceful nature of the march. I have also considered the fact that, with the benefit of hindsight provided by the successful court- ordered march of June 27, 1998, a commingled march on May 16th would not necessarily have caused danger to the marchers or to the bridge users.
For the other grievants, I have also considered the fact that Anthony Cedrone, despite his title as President of Local 716, was so deficient in planning the march and communicating to members, that this led to the grievants' confusion because they relied on Local 716's leadership to do things right. DRPA has a countervailing right to depend upon the Local 716 communication net, since in matters of collective concern management must speak with and write to the designated representatives. The members then must bear some of the responsibility of their designated representatives to sort out this situation. My resolution gives to the grievants, other than Anthony Cedrone, a substantial benefit of the doubt about the degree of their personal knowledge and participation in the planning and execution of the march.
While the discharges must be set aside, the DRPA has shown good cause for substantial disciplinary sanctions. For Anthony Cedrone, his knowing violation of the written orders and his other work rule violations lead to the conclusion that a suspension from DRPA employment for six months without pay is fully warranted. *fn15 Since his termination from employment became effective on June 13, 1998, this six- month period shall include June 13, 1998 to December 12, 1998. The DRPA is ordered to restore Anthony Cedrone to employment effective December 13, 1998. Payment of salary and benefits shall be made forthwith, and seniority shall be restored, retroactive to December 13, 1998.
For the remaining grievants, namely Mitchell Anderson, Gerard Cedrone, Gene D'Alessandro, Edward Lawrence, Craig Lord, David McCarthy, Howard Moseley, Daniel Mullen, Joseph Shaw and Michael Smith, the discharges are vacated and discipline is reduced to a one-month suspension from employment without salary or benefits. Since the employment of these grievants was terminated effective June 13, 1998, the one-month suspension includes the period from June 13, 1998 through July 12, 1998. The DRPA is ordered to restore these grievants to employment effective July 13, 1998, and to pay salary and benefits and to restore seniority forthwith, retroactive to July 13, 1998.
G. Decision and Award
The termination of EDWIN MOSLEY is VACATED in its entirety and the DRPA is directed to return Edwin Mosley to employment with back pay and benefits retroactive to June 13, 1998.
The termination of ANTHONY CEDRONE is VACATED in part, and good cause for the following lesser discipline has been shown: he shall be suspended without pay and benefits for six months, June 13, 1998 to December 12, 1998, and restored to employment and seniority effective December 13, 1998. Back pay and benefits shall be paid retroactive to December 13, 1998.
The terminations of MITCHELL ANDERSON, GERARD CEDRONE, GENE D'ALESSANDRO, EDWARD LAWRENCE, CRAIG LORD, DAVID McCARTHY, HOWARD MOSELEY, DANIEL MULLEN, JOSEPH SHAW, and MICHAEL SMITH are VACATED in part, and good cause for the following lesser discipline has been shown: They shall be suspended without pay and benefits for one month, June 13, 1998 to July 12, 1998, and restored to employment and seniority effective July 13, 1998. Back pay and benefits shall be paid retroactive to July 13, 1998.