The opinion of the court was delivered by: Jerome B. Simandle U.S. District Judge
HONORABLE JEROME B. SIMANDLE
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.
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 ...