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American Postal Workers Union, AFL-CIO v. United States Postal Service

September 28, 2009

AMERICAN POSTAL WORKERS UNION, AFL-CIO, PLAINTIFF,
v.
UNITED STATES POSTAL SERVICE, DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

The plaintiff, the American Postal Workers Union, AFL-CIO ("Union"), initiated this action by filing what it titles as a Petition to Compel Arbitration ("Petition"), which seeks an order from the Court requiring that the defendant, the United States Postal Service ("Postal Service"),*fn1 to recommence arbitrating the parties' ongoing grievance dispute with Arbitrator Joe H. Henderson ("Arbitrator Henderson") under the Postal Service/Union National Agreement ("National Agreement"). See generally the Petition. The defendant does not oppose arbitrating this matter, but rather contends that the arbitration process should proceed at the national level (referred to as "Step 4" of the arbitration procedure), and not before Arbitrator Henderson (referred to as "Step 3" of the arbitration procedure). Answer ¶¶ 1, 13, 23; see also Defendant's Memorandum in Support of Its Motion for Summary Judgment ("Def.'s Mem."), Declaration of Mary Hercules ("Hercules Decl."), Ex. 1 (Grievance-Arbitration Procedure). This matter is currently before the Court on the parties' cross-motions for summary judgment.*fn2

I. BACKGROUND

The National Agreement is a collective bargaining agreement establishing a four-step grievance procedure to resolve "dispute[s], difference[s], disagreement[s] or complaint[s] between the parties related to wages, hours, and conditions of employment." Def.'s Mem., Hercules Decl., Ex. 1 (Grievance-Arbitration Procedure) at Art. 15.1. This four-step procedure is performed at either the district level (Step 3) or the national level (Step 4). Id. at Art. 15.5. Additionally,

[i]f either party believes that a case referred to Regular [District Level] Arbitration [at Step 3 of the process] involves an interpretive issue under the National Agreement or some supplement thereto which may be of general application, that party's representative shall request input from their appropriate National Representative at the Headquarters level. If either party's representative at the Headquarters level determines the case is interpretive, a notice will be sent to the other party. The case will be held pending the outcome of the National interpretive dispute [at Step 4 of the process].

Id. at Art. 15.5.B.5. Accordingly, "[o]nly cases involving interpretive issues under this Agreement . . . of general application will be arbitrated at the National level," i.e. at Step 4 of the process. Id. at Art. 15.5.D.1.

The plaintiff's grievance, which it submitted to arbitration pursuant to the National Agreement, arose from its opposition to the defendant's decision to employ temporary workers at a Phoenix, Arizona telephone service center for a call center pilot program. See Plaintiff's Memorandum in Opposition to Defendant's Motion for Summary Judgment and in Support of Plaintiff's Motion for Summary Judgment ("Pl.'s Mem. & Opp'n"), Declaration of Greg Bell ("Bell Decl."), Ex. 3 (Mar. 28, 2007 Arbitration Decision) at 4. On March 26, 2007, Arbitrator Henderson, at Step 3 of the grievance process, found that "[t]he Union [had] met its burden of proof [by] showing that the Postal Service . . . [had] violated Article 7.1.B.4 of the National Agreement[] . . . when it used [the temporary workers] at the Telephone Center from 1995 until it[] [had] clos[ed] on October 8, 1999." Pl.'s Mem. & Opp'n, Bell Decl., Ex. 3 (Mar. 28, 2007 Arbitration Decision) at 17; see also Plaintiff's Statement of Material Facts Not in Dispute ("Pl.'s Stmt.") ¶ 6. Arbitrator Henderson also concluded that "[s]ince the [Phoenix telephone service] Center had closed, the remedy becomes a matter of determining who and in what amount[] the aggrieved employees should be compensated," and "if the Union, as the representative organization, is entitled to an award for the organization." Pl.'s Mem. & Opp'n, Bell Decl., Ex. 3 (Mar. 26, 2007 Arbitration Decision) at 19. However, Arbitrator Henderson resolved that he could not, "from the information presented[,] . . . make a specific determination as to the amount(s) the [plaintiff] and/or its members should be awarded." Id. at 20. Accordingly, "[t]he matter [was] . . . remanded to the parties for their joint calculation of the hours worked by the Casual employees beyond the permitted days of the National Agreement[,]" along with specific instruction concerning the manner in which this assessment should be calculated. Id. at 20-21.

Arbitrator Henderson, having "retained jurisdiction over the . . . remedy," Pl.'s Stmt. ¶ 6, "[t]he parties returned their dispute to [him] for a hearing on the . . . remedy[,] [which] . . . was held on July 10, 2007," id. ¶ 7. On August 7, 2007, Arbitrator Henderson found "that 'the total amount of the Postal Service liability' . . . is $19,717,431.00[,] . . . to be divided among clerks 'presently working in the Phoenix Customer Service Area who were employed during the period from January 1, 1996 to September 30, 1999' on a prorated basis depending on the hours each clerk was on the rolls during the period of the violation." Id. ¶¶ 7-8 (citing Pl.'s Mem. & Opp'n, Bell Decl., Ex. 4 (Aug. 13, 2007 Arbitration Decision) at 12). However, Arbitrator Henderson also included the limitation that "no clerk would receive more than $9,694.00," id. ¶ 8 (citing Pl.'s Mem. & Opp'n, Bell Decl., Ex. 4 at 12), and he "retain[ed] jurisdiction of th[e] matter for 90 days to assist the parties if called upon" to do so, Pl.'s Mem. & Opp'n, Bell Decl., Ex. 4 at 13.

The defendant construed the Arbitrator's remedy award, specifically the phrase "presently working," to mean "that no clerk who has left the Postal Service Phoenix Customer Service Area may share in the award," an interpretation that "reduc[ed] [its] liability below . . . $12,000,000.00[,]" given the cap of $9,694.00 that any individual clerk could be awarded. Pl.'s Stmt. ¶ 8. As a result of the defendant's interpretation, "[o]n or about September 21, 2007, the [plaintiff] notified the [defendant] that it was requesting the Arbitrator to hold an additional hearing" to clarify the remedy award, and therefore, presumably, whether the defendant's interpretation was appropriate. Id. ¶ 9. A hearing was convened on November 29, 2007, wherein the plaintiff "argued that the Arbitrator's August 7, 2007 award required clarification. The [defendant] contended that the Award was final and binding and that Arbitrator Henderson could not modify it." Id. ¶ 10. "Arbitrator Henderson then requested brief[ing] from the parties on the question [of] whether . . . he still had jurisdiction to clarify or modify his award." Id.

At the November 29, 2007 hearing, a representative for the defendant "informed Arbitrator Henderson that the [defendant] would be referring the parties' dispute to the national level under Article 15.5.B.5 of the National Agreement" because it was the defendant's position that "the case 'appears to contain a newly raised interpretive issue . . . ,' that 'the issue should be referred to headquarters for review pursuant to Article 15.5.B.5,' and that '[t]he case must be held [in abeyance] pending the outcome of the national interpretive dispute.'" Id. ¶ 11 (citing Pl.'s Mem. & Opp'n, Bell Decl., Ex. 2 (Nov. 29, 2007 Letter from John W. Dockins to Kenneth DeHate)).

In a separate Memorandum of Understanding regarding the National Agreement, the parties had agreed that "[o]nce an issue is forwarded to the national level pursuant to Article 15.5.B.5, the appropriate national representative will have thirty (30) days from receipt of notification to make a determination as to whether or not to initiate a national level dispute [at Step 4 of the grievance procedure]." Pl.'s Mem. & Opp'n, Bell Decl., Ex. 6 (Memorandum of Understanding Between the United States Postal Service and the American Postal Workers Union, AFL-CIO ("Memorandum of Understanding")). "The Memorandum of Understanding . . . provide[d] that, in accordance with the parties' pre-existing agreement on procedures under Article 15.5.B.5, if a dispute is not initiated at the national level [within that thirty day period], the case must be ' . . . heard before the same arbitrator [at Step 3] who was scheduled to hear the case at the time of referral to [the national level].'" Pl.'s Stmt. ¶ 4 (some alterations in original). Therefore, under this agreement, although the defendant indicated that it wished to initiate an interpretive dispute at the national level on November 29. 2007, and because the defendant's representative failed to initiate the process within thirty days after it referred the case to its national representative, id. ¶ 15, pursuant to Article 15 of the National Agreement and the Memorandum of Understanding, the case automatically reverted to Step 3, i.e., arbitration before Arbitrator Henderson, see Def.'s Mem. at 4; Pl.'s Mem. & Opp'n, Bell Decl., Ex. 7 (Jan. 14, 2008 Letter from Greg Bell to Steven Zamanakos) & Ex. 8 (Jan. 23, 2008 Letter from Greg Bell to Steven Zamanakos).

However, on February 1, 2008, the defendant made a second referral to its national representative because it "believe[d] that a new interpretive issue under the National Agreement . . . which may be of general application is involved in the . . . grievance." Def.'s Mem., Hercules Decl., Ex. 8 (Feb. 1, 2008 Letter from Nels W. Truelson to Steve Zamanakos). The defendant informed the plaintiff of this referral on February 11, 2008. Id., Ex. 9 (Feb. 11, 2008 Letter from Mary Hercules to William Burrus). In that letter, the defendant defined the interpretive issues as the following:

1. After rendering an arbitration award, does an arbitrator have the authority to change the rendered decision?

2. After rending [sic] an arbitration award, does an arbitrator have the authority to hold an evidentiary hearing for the purpose of ...


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