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NATIONAL RURAL LETTER CARRIERS' ASSN. v. UNITED ST

June 23, 1986

National Rural Letter Carriers' Association, Plaintiff,
v.
United States Postal Service, Defendant



The opinion of the court was delivered by: SPORKIN

 Stanley Sporkin, U.S.D.J.

 This matter is before the Court on cross motions for Summary Judgment. Both parties agree that this case, which arises out of an arbitration award reinstating a rural mail carrier to the United States Postal Service (USPS), can be resolved by Summary Judgment. Subsequent to the arbitration award, the National Rural Letter Carriers' Association (NRLCA) commenced an action in this Court to enforce the award (CA85-1089). At approximately the same time, the USPS brought suit in the United States District Court for the Western District of Missouri to vacate the award. By an Order dated October 8, 1985, that case was transferred to this Court (CA85-3214). Since the issues and facts of both actions are identical, this decision will dispose of both cases. *fn1"

 The facts giving rise to this case are uncontroverted and are succinctly set forth in the arbitrator's opinion *fn2" as follows:

 
Grievant was a Rural Letter Carrier employed at the Lowry City Station of the Kansas City, Missouri Post Office. On February 7, 1984, he opened an undeliverable parcel containing a five-dollar bearer refund check from Standard Brands, Inc., and a fifty-cent piece. He cashed the check and kept the half dollar. What he did not know was that the parcel was "bait" which had been placed in the mail stream by the Postal inspection Service. From time to time, test mailings of this kind are used to assess employee honesty and identify thieves. Test mail is generally misaddressed or otherwise undeliverable items which appear valuable. When Grievant failed to return the parcel to the post office for processing, the Inspection Service targeted him for further investigation. Two "live" tests were administered. In a "live" test, a suspect is placed under surveillance while she is handling test mail. Grievant passed both tests; he returned the undeliverable items to the post office without disturbing them.
 
The investigation ended in mid-April, 1984. The suspicion that Grievant took the test parcel from the mail stream on February 7 was confirmed when the five-dollar check was recovered. It had been negotiated and bore Grievant's endorsement. On April 13, while he was delivering mail, Grievant was arrested by a postal inspector. He was taken to the post office where he made a voluntary confession. He was cooperative and remorseful. His statement went beyond the matter at hand -- theft of mail; he also admitted to unauthorized curtailments. On several previous occasions, he postponed delivering magazines in order to read them himself. Grievant's statement concluded with an expression of his willingness to make restitution for what he had stolen.
 
On April 13, the Inspection Service reported its findings to the Lowry City Postmaster. Upon the advice of a labor relations representative of the Kansas City Management Sectional Center (MSC), the Postmaster immediately placed Grievant on emergency suspension. On April 19, she mailed a Notice of Proposed Removal to the Employee citing both theft of mail and curtailments of magazines as the reasons for the action. On May 27, 1984, the MSC Postmaster issued a Letter of Decision stating that the removal would be effective on June 1.
 
Grievances were initiated challenging both the emergency suspension and the removal. They remained unresolved and the Union processed an appeal to arbitration . . . .

 The CBA requires that disciplinary action against an employee be initiated by his local supervisor. The Arbitrator specifically found that:

 
. . . The evidence in this case confirms that the decision to discharge Grievant was wholly made and concurred in by the MSC [Kansas City management Sectional Center] without any discretionary judgment by the [local] Postmaster. *fn3"

 In concluding that reinstatement of the Grievant was required because of this procedural flaw, the arbitrator noted:

 
. . . when higher-level authority does more than advise: when it takes over the decision-making role and eliminates the contractual responsibility of local Supervision -- and then concurs in its own decision -- a substantive due-process violation occurs.
 
Such violation cannot be overlooked as a mere technicality. The negotiated bi-level disciplinary procedure provides a unique protection for employees. It cannot legitimately be disregarded, and the Employer's neglect to follow it creates a breach of contractually established due process requirements of such importance as to require that the resulting discipline be overturned . . . Under these circumstances, the Arbitrator finds that he has no ...

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