REGULAR ARBITRATION PANEL
In the Matter of Arbitration
Grievant :
A. Flores
c,
between
/9 007 7
United States Postal Service
Post Office : '
and
Beechnut Station
Houston, TX
Case No : G94N-4G -D 98077980
Local No . 002-72-98DA
GTS#027208
National Association of
Letter Carriers
Before :
Charles H . Frost
Appearances :
For the Postal Service :
Mary Ann Longenecker, Labor Relations Specialist
For the Union :
Reece E . Cox, Local Business Agent
Place of Hearing :
Houston, TX
Date of Hearing :
December 3, 1998
Date of Award :
December 31, 1998
Relevant Contract Provisions :
Articles 15,16
Contract Year:
1994
Type of Grievance :
Notice of Proposed Removal
Award Summary
Just cause did not exist for issuing the January 19, 1998 Notice of Removal to Grievant . The
grievance is granted . Grievant shall be reinstated with full back pay and benefits . For the purposes
of this award, full back pay is defined as the amount Grievant would have earned less any ear ning s
from other employment and any unemployment compensation received .
Charles H . Frost
o 1V,
2413 Bayshore Blvd .
Tampa, FL 33629
BACKGROUND
The hearing was held in Houston, Texas on Thursday, December 3, 1998 . The parties were
offered full and equal opportunity to present testimony, exhibits, and to argue the merits of their
respective positions . The Arbitrator stated his notes were for his own use and that each party would
be responsible for keeping its own notes . The Arbitrator made a tape recording of the proceedings
and offered the parties a copy . The offer was declined . At the conclusion of the hearing, the parties
stated they had received a full, fair and impartial hearing . Grievant also stated he had received a full
fair and impartial hearing and that he had been fully and fairly represented by the Union . The record
was closed on December 3, 1998 .
s.
**
s*
ss
A . Flores, a City Letter Carrier, whose seniority date is July 4, 1978, was given a Notice of
Proposed Removal dated January 19, 1998 . Pertinent parts of that notice follow :
CHARGE #1 :
You are charged with Improper Conduct /Failure To Follow Your
Physician ' s Instructions and Creating the Possibility of
Sustaining Further Injury For Which The Postal Service Would
Be Permanently Liable
Specifically, you are assigned to City Route 8316 . Records reveal that Postal Inspector
Michael W. Sullivan conducted an investigation while you were receiving continuation of pay
benefits . You were observed engaging in activities beyond your medical restrictions that
could have prolonged or aggravated your condition .
On May 6, 1996, you completed a Notice of Traumatic Injury and Claim for Continuation of
Pay/Compensation (P .S . Form CA-1) . On the P.S . Form CA-1, you stated, "I was loading
up my vehicle . I was picking up a tray of flats from the hamper to the vehicle, I noticed the
paper tray was about to give away and to avoid this from falling to the ground, I hurried and
placed the tray of flats on the tray, which I bent and twisted in an inadequate position ."
On May 6, 1996, Mr . Van Tran, MD, of MacGregor Medical Association, 11200 Harwin
2
Drive , Houston, TX 77072, examined and diagnosed you had a muscle strain in your left
buttock . You were placed on total disability and unable to work from May 6 1996 through
May 27, 1996 .
On May 31 , 1996, you were examined by Dr. Tran . Dr. Tran ' s progress note stated you were
still in pain , which was worsened with weight bearing and walking . You were instructed to
rest and avoid strenuous exertion . Dr . Tran stated you were scheduled to see a physical
therapist in the near future .
On June 14 , 1996, Dr. Tran completed a U .S . Department of Labor Form CA-20, attending
physician' s report . Dr. Tran noted that you were going through physical therapy. You were
again placed on total disability and unable to work through June 21, 1996 .
On June 20 , 1996, you were examined by Fritz Razvi , PA of MacGregor Medical
Association. According to Dr . Razvi ' s progress note , you were unable to keep your physical
therapy appointments, "Due to personal and transportation problems ." In addition, Dr . Razvi
reported in part, "Importance of physical therapy explained to the patient and told the
consequences of not going to physical therapy ." You were instructed to keep the physical
therapy appointments . You remained totally disabled through July 8, 1996 .
On July 17, 1996, you were again examined by Dr . Tran and found, "moderate tenderness in
the left buttock area ." You were released to partial disability from July 24 through August
14, 1996 . On July 29, 1996, Dr . Tran completed a U .S . Department of Labor , CA-17 . You
were advised by Dr . Tran that you could return to work . Upon your release to limited duty,
you failed to notify your immediate supervisor , Ms. Sandra Alix. Ms . Alix stated that she was
not aware of any release to work until September 16, 1996 .
On July 30 , 1996, Dr. Tran's narrative report stated, "The patient (Mr . Flores ) had been
improving gradually until yesterday when he bent over suddenly to help his child at home and
seem to have re-injured the muscle strain. The patient developed worsened pain immediately
after he did the bending in the same injured area ." Dr . Tran removed you from partial
disability and placed you back on total disability from July 24 through August 14, 1996 .
On September 9, 1996, Dr . Tran examined you and completed a U .S . Department of Labor
Form CP-5, work restriction explanation. The OWCP-5 shows you were released to four (4)
hours per day, from September 9 through September 16, 1996 . You were released to duty
with restrictions as described in the OWCP-5, which included ; no bending, squatting,
climbing, kneeling or twisting . Again, you failed to notify your supervisor of your release to
limited duty . Dr . Tran's narrative report from the September 9, 1996, visit stated , you "wants
to go back to work next Monday, September 16, 1996 ." According to the U . S . Department
of Labor Federal Employee ' s Compensation Wage Loss Benefit Statement, you received
compensation benefits through September 14, 1996 .
3
On September 10, 1996 , postal inspectors observed and video taped you bending , squatting,
climbing , kneeling and twisting while painting your residence . You were observed looking
down your street from your house . You suddenly ran and hid behind a vehicle in your
driveway. You quickly returned to pick up your paint and step ladder . Then you immediately
went back behind the vehicle . This activity occurred as a mail carrier approached your house .
Once the mail carrier had moved beyond your address , you re-appeared with your paint and
step ladder and continued to paint .
On September 11, 1996, postal inspectors observed you painting your house . You were
observed and video taped bending , squatting , climbing, and twisting to paint the gutters and
eaves of your house . You were observed climbing up and down the step ladder leading with
your injured left leg, approximately seventeen ( 17) times .
On October 9, 1996, your treating physician Dr . Van Tran, was interviewed by Postal
Inspectors M . W. Sullivan and J . Tarpley . Dr. Tran stated that he had examined you on
September 9, 1996 . Dr. Tran stated that he was not aware that you were painting your
house , but was not surprised since you had been released to four hours work per day . Dr .
Tran stated your activities on September 10 and 11, 1996 were beyond your restrictions . Dr.
Tran stated that you did not inform him that you were able to perform these types of
activities . Dr . Tran acknowledged that your activities could have prolonged or aggravated
your condition .
On November 9, 1996, you were interviewed by postal inspectors regarding your injury claim .
You stated that you understood the forms that you were required to complete your
compensation benefits . You stated that you still experienced pain in your left hip from your
injury. You stated that you wanted to return to work , but could not due to pain . You stated
that while disabled you stayed home and watched your daughter . You stated that you did not
paint you house, or violate your medical restrictions . When you were advised that the Postal
Inspections Service had learned you did paint your house , you then admitted painting your
house . You stated that you painted your house on September 16 and September 17, 1996,
during your scheduled days off, just prior to returning to work .
You were given an opportunity to view the video tape by postal inspectors . The video tape
shows you bending, twisting , squatting , and climbing a step ladder while painting and
returning behind a vehicle when the mail carrier approached your house . When asked why
you had ran and hid from the mail carrier , you responded, "I though it was someone else ."
The video obtained shows you painting your residence on September 10 and September 11,
1996, while under your doctor' s restrictions . You confirmed that you had been compensated
by the Department of Labor through September 14 , 1996, but had not cashed the check . You
were then given an opportunity to provide in your own words your explanation of the video .
Upon the advice of your union steward , you declined to give a written statement . You are
charged accordingly ."
4
To put the pieces in better perspective, further background will be helpful . On December 16,
1997, Arbitrator Devon Vrana issued an award on a Proposed Notice of Removal, which had been
issued to Grievant on January 13, 1997 . The Proposed Notice of Removal was substantially the same
as the Notice of Proposed Removal issued on January 9, 1998 .
Arbitrator Vrana's' award said :
"The grievance is sustained . Having carefully considering all of the evidence submitted by
the parties concerning this matter, I conclude that Grievant's immediate supervisor improperly
failed to handle the grievance at Step I of the grievance procedure . The Union did not waive
its right to contest arbitrability by failing to raise the issue during the grievance procedure .
Accordingly, Management shall remove Grievant's Letter of Removal from all of its files and
records. Management shall also make Grievant whole as a result of its contractual infraction .
The Arbitrator shall retain jurisdiction over this matter to resolve any problems resulting from
the remedy of the award ."
Thereafter, Grievant was ordered to report for work and was given an investigative interview .
This was followed by another Notice of Proposed Removal, dated January 19, 1998 . This hearing
is the result of the appeal of the grievance protesting that notice .
The Union asserts Grievant was placed in double jeopardy on January 19, 1998 when the
U .S .P .S . reissued a Notice of Proposed Removal on a matter which had been settled by Arbitrator
Vrana's award . During discussion, after the parties made their opening statements, the Arbitrator
urged that the hearing proceed on the procedural questions and merits . Then, the Arbitrator would
rule on the procedural questions and, dependent upon that outcome, rule on the merits . Further
i
Pages 64, 65 Joint Exhibit 2 .
5
discussion led the parties to conclude that the matter should be bifurcated and the Arbitrator would
hear and rule on only the procedural questions on December 3 . Dependent upon that outcome, a
hearing on the merits may be scheduled at a later date .
Appearances
FOR THE U .S .P .S . :
Mary Ann Longenecker - Labor Relations Specialist
FOR THE UNION :
Reece E .
Cox
-
Local
Business
Agent
A . Flores - Letter Carrier and Grievant
THE ISSUE
"Was the Notice of Removal issued on January 19, 1998 to A . Flores, Grievant, for just
cause? If not, what is the remedy?"
POSITION OF THE UNION
Grievant was placed in double jeopardy by the U .S .P .S . when it reissued a Notice of Proposed
Removal identical to one which had been settled a year earlier . In the first arbitration, the U.S .P .S .
introduced all its evidence, had all its witnesses testify, cross-examined Union witnesses in detail to
refute the arguments raised by the Union on due process violations . The U.S .P .S . presented its case
and vigorously defended the Union counter charges . The award sustained the Union position,
directed the U .S .P .S . to remove the Notice from its files and make Grievant whole . On December
Case #G94-4G-D-97075337 before Arbitrator Devon Vrana .
6
24, 1997, Grievant was ordered to report for work , and given an investigative interview . A second
Notice of Removal followed , which was grieved and is now before this Arbitrator .
The Union position is that this matter has been arbitrated and a final and binding award was
issued . If the U .S . P .S . disagreed with that award, it had two options . It could have asked for
clarification on whether or not the award was final and binding or whether or not the U . S .P .S . would
be allowed to reinstitute the charges since the award did not address the merits . The other option was
to file suit in federal court asking that the award be vacated . The U .S . P .S ., however , elected to have
the matter put before a different Arbitrator , hoping to receive a favorable ruling .
In further support of its position , the Union refers to Joint Exhibit 5(a), the October 31, 1996
letter in which it was agreed that "the same Arbitrator who determined the arbitrability of a case,
(will be) scheduled to hear the merits ." Further , Joint Exhibit 6, an agreement dated October 3, 1975,
says in part :
" . . .It was agreed that beginning with the date of this letter, no request or motions for
reconsideration of arbitration awards would be filed by any signatory to the 1975 National
Agreement or the postal service ."
" . . .Nothing herein is intended to preclude any right that any party may have to seek judicial
review of an Arbitrator' s award ."
The U . S .P .S . claim that Arbitrator Vrana has no authority to retain jurisdiction is not valid .
As long as the award did not conflict with the provisions of the National Agreement , the U .S .P .S .
cannot unilaterally impose a limit on the Arbitrator ' s authority. And, retaining jurisdiction after the
award has been issued has been practiced by the parties regional and national arbitrators for years .
The argument that the U . S .P .S . corrected the procedural due process violation and will ensure
there are no procedural errors in processing of this case , needs to be addressed . First, there is no way
7
an error was corrected or could be corrected without incurring additional serious violations of
procedural due process which are guaranteed under Article 15 of the contract . The immediate
supervisor at the time the incident, Alix, should have heard the grievance at Step 1 . Alix refused, and
either/or was later ordered (or directed) by upper management to issue the second discipline even
though Alix was not Grievant's immediate supervisor at that time . Supervisor Dare, who had nothing
to do with the original charges or investigation, heard the first grievance at Step 1 . This violates the
contract .
The Union's point is that there is no way, after a full year has passed, that the U .S .P .S . can
go back and correct past due process violations and ensure that the Grievant is afforded all of his
rights and a fair and impartial investigation and hearing . Grievant spent over a year off the clock
without pay and benefits . To simply give Grievant back pay does not negate the fact that he was
already punished for that incident and is now being recharged for the same incident . This is double
jeopardy . The Union asks the Arbitrator to rule that the matter has been settled and to order the
U .S .P .S . to reinstate the Grievant in accordance with Arbitrator Vrana's award and to make Grievant
whole in every way .
POSITION OF THE U .S .P .S .
The matter is whether or not there was just cause to issue Grievant a Notice of Proposed
Removal on January 9, 1998 . The reasons for issuing the letter were failure to follow physician's
instructions and creating the possibility of sustaining further injury for which the Postal Service would
be liable . The grievance was sustained on a procedural point by Arbitrator Vrana . Thereafter,
U.S .P .S . corrected the procedural point and reissued the Notice of Proposed Removal on January
8
9, 1998 . The issue here concerns Grievant's second Notice of Proposed Removal . The December
19, 1997 award did not rule on the merits - - only on the procedural issue at Article 15 .2, Step 1 .
This requires Grievant's immediate supervisor handle the Step 1 meeting . The Step 1 meeting was
held with Supervisor McKelvey instead of Supervisor Alix who, at that time, was Grievant's
immediate supervisor . Reissuing this discipline is supported by a case in the 111 Circuit' . The I I'
Circuit decision upheld the District Court's reversal of an Arbitrator's decision finding that a
procedural defect can be cured and is not prejudicial to the removal results .
The U .S .P .S . rejects the Union position that the Vrana award is res judicata and bars
reinstatement of the discipline or rehearing on the merits .
The merits of this grievance have never been addressed. This Arbitrator should not have any
reservation regarding the effect of the first removal action . Since this is an interpretive issue of the
just cause and the final and binding provisions of the National Agreement, the issues are of general
applicability . The Arbitrator has the authority to rule on the merits .
The U .S .P .S . asks the Arbitrator to rule that the issue is properly before the Arbitrator and
that the merits of the matter be scheduled for a hearing .
DISCUSSION AND OPINION
The record tells me the evidence favors the Union and I shall so rule . The principal reason
for this conclusion is that Grievant was placed in double jeopardy when issued a second Notice of
Proposed Removal.
3
U .S .P .S . v. National Association of Letter Carriers , AFL/CIO 847Fld775 ( 11th.cir 1988 ) . There is no precedent setting case in the 51 Circuit .
9
Before going to the specifics, it is appropriate to comment generally on the issue . The parties
made it crystal clear to the Arbitrator he was to rule only on the procedural question (that is,
arbitrability), in this award . The December 31 hearing focused only on the procedural, that is the due
process violation .
Further examination of the concept of double jeopardy is appropriate . Historically, many
arbitrators have concluded that it is not proper for a person to be disciplined by a double penalty .
And, where the employer seeks to punish the employee twice for the same misconduct, double
jeopardy comes into play . Stated another way, the application of the double jeopardy concept has
held that once discipline for a given act has been applied and accepted, it cannot thereafter be
repeated or increased . On the other hand, the double jeopardy concept has been found inapplicable
where the action taken against the employee may not be considered final . A long time ago, Arbitrator
Whitley P . McCoy" set a standard for applicability of double jeopardy . The sense of his award was :
"Arbitrator may evoke principle of double jeopardy to set aside a second penalty imposed for
the same offense, despite 1acnet.
c2rrte a~ .2 . rr.rs .ji. ~5 .Srrrr
is
applicable only to criminal proceedings . When a long established principle, such as protection
from double jeopardy is applicable- the arbitrator should apply it even though he not a
criminal court fudge . To hold otherwise would be contrary to fundamental concepi of justice
in
and would diminish confidence
arbitration as a process for obtaining justice ." [Emphasis
added .]
4
16 LA616, International Harvester and UAW Local 1106 - May 22, 1951 .
10
Arbitrator Charles Levingood5 expressed the double jeopardy principle as :
"Deeply rooted in the American tradition of justice is the concept of double jeopardy - -1hg
principle that a man shall not be twice punished or even exposed more than once to the risk
of punishment for the same offense . It seems to me that principle has been violated here ."
[Emphasis added]'
Here, it is unrefuted that the January, 1998 Notice of Proposed Removal was substantially
the same as the one in Arbitrator Vrana's award of December, 1997 . The U .S .P .S . argument that
the Arbitrator cannot retain jurisdiction was thoroughly considered . The award of National Arbitrator
Snow in Case H94N-4H-C-96090200 (issued on November 4, 1998) said :
"The Arbitrator shall retain jurisdiction in this matter for 90 days from the date of the report
in order to resolve any problem resulting from the remedy in the award . It is so ordered and
awarded ."
And in Case #H7-N5C-C12397, issued on July 29, 1991, National Arbitrator Snow said :
"The Arbitrator shall retain jurisdiction in this matter to resolve any problems resulting from
the remedy in the award . It is so ordered and awarded ."
Therefore, this Arbitrator cannot give weight to the U .S .P.S . position on this point .
The U .S .P .S . argued that since there was no ruling on the merits, the discipline can be
reissued after the procedural flaw has been corrected. This also needs to be addressed . After full
5
6
See 24 LA358, Durham Hosiery Mills and American Federation of Hosiery
Workers, Branch 31A (AFL 1955) .
See also Arbitrator Dworkin, 40 LA87, Misco Precision Castings and UAW Local
1243, Arbitrator Foster in Georgia Power and IBEW Local 84 in 76 LA761 and
Arbitrator Bowles 80 LA1090, McCrary at 76 LA758, Lubick at 75 LA158, and
Porter in 41 LA 892, City of Orlando and Central Florida Police Benevolent
Association FMCS Case 86/23455, December 5, 1986, Arbitrator Frost at 88
LA572 . See also the defense of double jeopardy, pages 301-304 - Fairweathers
Practice and Procedure in Labor Arbitration (Third Edition), Bureau of National
Affairs, 1991 . And Elkouri and Elkouri- How Arbitration Works, 5`s Edition Bureau of National Affairs, 1997, pages 923-925 .
11
consideration of the entire record, I find that it supports a ruling that issuing the second notice
exposed Grievant to double jeopardy . For this reason, the Arbitrator is compelled to sustain the
grievance and order reinstatement with full back pay and benefits .
However, it is appropriate to address, in some detail, the U .S .P .S . position that because there
was no ruling on the merits', the discipline can be reinstituted after the procedural violation has been
corrected . The way I read the Vrana award, I find nothing to tell me that it was not final and binding
and pursuant to the contract . Article 15 .4 .A6 of Joint Exhibit 1 is clear and unambiguous :
I'm
decisions of an Arbitrator will be finial and binding . All decisions of Arbitrators shall be
limited to the terms and provisions of the agreement and in no event may the terms and
provisions of this agreement be altered , amended, or modified by an Arbitrator ." [Emphasis
added]
The Vrana award sustained the grievance and did not rule on the merits . I find nothing in the
award to tell me the award was not final and binding . If the U .S .P .S . disagreed with the Vrana's
award, there were two routes to follow. Reconvene the hearing with Arbitrator Vrana for further
clarification . The records shows that this was proposed by the Union but the U .S .P .S . did not agree .
The other was to file suit in federal court asking that the award be vacated .
Both parties submitted numerous citations" in support of their respective positions . All were
read . Several contained circumstances similar to the instant matter . I made special note of:
Arbitrator Suardi in Case J94N-4J-D 96023101, November 15, 1996 :
"The instant dispute surrounds whether the decision of Arbitrator Klein subsumes a finding
on the merits of the case before this Arbitrator ." "In the present context, the parties have
7
And, therefore, not final and binding.
B
Totaling 229 pages .
12
agreed to the language of Article 15 .4A.6 that "all decisions of an arbitrator will be final and
binding ." This widely used provision does no more than expressly recognize the parties'
intention to avoid tedious and repetitive re-litigation of the same con rov rsv Thus, while
valid "disputes, differences, disagreements or complaints" must be permitted to proceed
through the grievance procedure, so too, must they
some time ne ca 0 K41)! yY.1nU1tb ti ii!.
and decided ." [Emphasis added]
Arbitrator Menzies in Case H94N-4H-D 96045754 / 96035918, November 11, 1996 :
"The question of whether or not an Arbitrator's decision based on a procedural irregularity
precludes reconsideration of the issue on the merits after correction of the procedural
irregularity can only be resolved within the framework of the grievance/arbitration process ."
" . . .To follow the argument of the Service, arbitration(s) of the Removal could proceed on
indefinitely as long as each repeat Removal contained an error . This cannot have been the
intent of the parties. The other alternative would be for arbitrators to address the merits of
s which would have the effect of rendering
the National Agreement's procedural requirements meaningless . " [Emphasis added]
Arbitrator Dworkin in Case C7R-4Q-17456, April 25, 1990 :
"The undisputable fact is, that, the fourth and final notice of removal which is before the
Arbitrator was based on the same identical factual circumstances that were involved in each
of the three prior removal notices , including the settlement agreement of the second removal
notice, and the Award of Arbitrator Porter ." "By way of a threshold observation, jhtg
a on of the Arbitrator derived from the parties' agreement the Arbitrator's award must
"draw its essence from the agreement" . rather than from judicial decisions, or rulings from
other agencies ." [Emphasis added]
Arbitrator Howard in Case AC-E-4890D, April 13, 1985 :
"Thus, the Service having assessed a specific penalty when the grievant was returned to work
from his emergency suspension Mij
MW
same offense . The increase in the penalty violates the grievant's due process rights . whether
the violation be characterized as "double jeopardy" or "adding to the original penalty ." Two
a
e
Ya ,r•,r
KNIN
for the same offe
and on this narrow
basis the subsequent penalty of the fourteen (14) day suspension must be overturned ."
[Emphasis added]
Arbitrator Foster in Case S8N-3Q-D-3515/18, March 12, 1982 :
"The parties to the National Agreement are bound to comply with its clear and unambiguous
procedural provisions designed to insure that due process is accorded to employees charged
13
with disciplinary offenses. Arbitrators are likewise bound to enforce these agreed-wo
procedures and sustain grievances where the failure to do so 2rgiudices the rights of h
grievant . I am convinced that the failure in this case to provide the Union with the reasons
for the decision at the third step was prejudicial to the Grievant and denied him due process .
Accordingly, the procedural error forms a sufficient cause to sustain the grievance without
consideration on its merits ." [Emphasis added]
Arbitrator Holly in Case S8N-3D-D-34092/34093, February 15, 1982 :
"Based on the foregoing, it is concluded that the procedural errors are sufficient to cause
Arbitrator to grant the Unions' motion to sustain the grievances . As a consequence, the
motion is granted, and the case will not be considered on its merits ."
Arbitrator Duda, Case H90N-4H-D 96007523 / 96037492, July 19, 1996 :
"In the industrial relations community arbitrators and practitioners have long recognized that
discipline, including discharge, may be modified or overturned in arbitration if basic notions
of fairness or due process were not observed . This principle is especially true in respect to
labor agreements having specific procedural requirements for discipline . The National
Agreement between the Postal Service and the National Association of Letter Carriers,
among others, has a number of such provisions . Legions of Postal Service arbitrators have
recognized this principle .
When a Postal Service Arbitrator finds the service did not fulfill required action or committed
conduct prohibited by the 'terms and provisions of this agreement,' 'the Arbitrator may
disturb a concerned discipline provided he/she does not alter, amend or modify those terms
or provisions . " [Emphasis added]
I am satisfied that the issue has been addressed and, therefore, it is unnecessary to discuss or
treat any other matters or events which may be immaterial, peripheral or insignificant . Further, it
must be emphasized that the absence of any treatment or discussion related to any matters or
arguments presented must not be construed to be a lack of attention thereto, since all matters were
considered .
14
EXHIBITS
The following exhibits were introduced :
JOINT EXHIBITS :
1 . Applicable Agreement .
2 . Grievance Packet ( 65 pages) .
3 . ELM - Section 666 .2 .
4 . Applicable Agreement Article 3 - Management Rights .
5(a) . Letter, Doninger , U.S.P.S. to Sombrotto, NALC, dated 10/31/96 .
5(b) . Letter, Mahon to Sombrotto, NALC (Step 4 Grievance), dated 7/15/96 .
6 . Letter, Cushman (for the Union) to Conway (U .S .P .S .), dated 10/3/75 .
BY THE UNION-
1 . Gonzalez, U .S .P.S. to Mullins, NALC, dated 2/17/98 .
2. Gonzalez, U .S .P.S. to Mullins, NALC, dated 2/2/98 .
3. Mullins NALC to Young, NALC, dated 2/9/98 .
4 . Mullins NALC to Gonzalez U .S .P .S ., dated 2/9/98 .
The parties offered the following citations in support of their positions .
BY THE UNION :
1 . Case G94N-4G-D97099146, March 11, 1998 . Arbitrator Bennett - double jeopardy .
2 . Case J94N-4J-D96023101, November 15, 1996 . Arbitrator Suardi - res judicata .
3 . Case H94N-4H-D96045754, November 11, 1996 . Arbitrator Menzies - double
jeopardy.
4 . Case H94N-4H-D96060209, October 31, 1996 . Arbitrator Johnston - double
jeopardy.
5 . Case H90N-4H-D96007523, July 19, 1996 . Arbitrator Duda - double jeopardy .
9 The record shows this award is now in Federal Court .
15
6 . Case C7R-4Q-17456, April 25, 1990 . Arbitrator Dworkin - double jeopardy .
7 . Case DR-31 - 88, March 20 , 1989. Arbitrator Zumas - double jeopardy .
8. Case AC-E-4890D, April 30, 1977 . Arbitrator Howard - double jeopardy .
9. Case CIC -4E-D34608 , December 27, 1984.
Arbitrator DiLeone - double jeopardy .
10. Case EIN -2F-D-1730340 / 17341, April 22, 1985 . Arbitrator Howard - double
jeopardy .
11 . Case S8N-3Q-D-35151 , March, 1982 . Arbitrator Foster - fatal procedural defects .
12. Case S8N-3D-D-34092 / 34093 , February 15 , 1982.
procedural defects.
Arbitrator Holly - fatal
13 . Case AB-N - 12, November 11, 1976 . Arbitrator Gamser - double jeopardy .
14 . Case H94N-4H-C96090200, November 4, 1998 . National Arbitration Panel,
Arbitrator Snow - retention of jurisdiction .
15 . Case H7-N-5C-C12397, July 29, 1991 . National Arbitration Panel , Arbitrator Snow retention of jurisdiction .
BY THE U.S.P .S.:
1 . Case SON-3W-D6249, June 3, 1992 . Arbitrator Stevens - reissuing a Notice of
Removal .
2 . Case H90N -4H-D95005551 , March 13, 1995 . Arbitrator Taylor - nonarbitrable case
remanded to second arbitration proceeding to be heard on the merits .
3 . Case W8N- 5BD-3194 , 3166, 4111 , January 4 , 1980 . Arbitrator Gentile - double
jeopardy .
4 . Case HOC3D- D8598 , October 20, 1994 . National Arbitration Panel, Arbitrator
Snow - general application of arbitrability of a grievance at the national level .
5 . Case S7N-3R - D31574, April 23, 1991 . Arbitrator Foster - applicability of
contractual time limits , application to contract language, and facts of record and
application with equal force to procedural and substantive matters .
NOTE : In its opening statement , the U. S .P .S . referred to two 11 ' Circuit decisions and five
5' Circuit decisions . It did not proffer any written data on these decisions .
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