Petition for Writ of Certiorari — American Postal Workers Union v. United States Postal Service

Supreme Court brief1991

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No.

IN THE

Supreme Court of the Uuited States

OCTOBER TERM, 1990

AMERICAN POSTAL WORKERS UNION, AFL-CIO,

Petitioner

UNITED STATES POSTAL SERVICE.

Respondent

Petitiv.. ior a Writ of Certiorari to the

United Siates Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

DARRYL J. ANDERSON

(Counsel of Record)

O’DONNELL, SCHWARTZ

& ANDERSON

DIANA ORANTES CERESI 1300 L Street, N.W., Suite 200

2914 North Edison Street Washington, D.C. 20005-4178—

Arlington, VA 22207 (202) 898-1707

Of Counsel Attorneys for Petitioner

Bupreme Court, U.S

91-75 ,| Fit

JUN 27 1991

Ek D

Ao CLERA

WILSON - Epas PRINTING Co., INC. - 789 O096 - WASHINGTON, D.C. 20001

B MEI 00

QUESTION PRESENTED

Where the parties to a collective bargaining agreement

have submitted the question of arbitrability of a griev-

ance to an arbitrator who has authority under the parties’

agreement to make a final and binding determination of

arbitrability, must a court reviewing the arbitration

award apply the deferential standard of review set forth

in Paperworkers v. Misco, Inc., 484 U.S. 29, 36 (1988),

on the question of arbitrability, or may the court make

an independent evaluation of the arbitrability of the

grievance.

(i)

TABLE OF CONTENTS

Page

i! py th Go 1 4 yy | | eee i

TABLE OF AUTHORITIES ............. TERRA eR ae iv

PETITION FOR A WRIT OF CERTIORARI ...... oe 1

i cdadismhueububinacoen l

SE ee 2

STATUTORY PROVISION INVOLVED Saar arnt 2

ye ee 1 6 ge Re | ft) | 2

The Arbitrator’s Decision a 6

The Decision of the District Court . ey oe 7

The Decision of the Court of Appeals 0... 9

REASONS FOR GRANTING THE WRIT ................ 10

I. THE DECISION BELOW SQUARELY CON-

FLICTS WITH THE DECISIONS OF OTHER

ce AN. FE Saas 11

Il. THE DECISION BELOW IS INCONSISTENT

WITH NATIONAL LABOR POLICY .............. 19

te eS Ee cade thie 21

TABLE OF AUTHORITIES

CASES

American Postal Workers Union v. United States

Postal Service, 11th Cir. No. 85-3811 (1986)...

American Postal Workers Union, AFL-CIO v.

United States Postal Service, 823 F.2d 466 (11th

Cir. 1987) . .

AT&T Technologies v. ‘Communications ‘Workers,

475 U.S. 643 (1986) ee ES

Berklee College of Music v. Local 4412, 858 F.2d

31 (1st Cir. 1988), cert. denied, 110 S.Ct. 53

(1989) . mae eae...

Bowen v. United States Postal Service, 459 US.

212 (1983) os KL TES AS es NOOR,

Container Products v. United Steelworkers, 873

F.2d 818 (5th Cir. 1989) .

Delta Queen Steamboat Coe. v. District 2 2 Marine

Eng’rs Beneficial Ass’n, 889 F.2d 599 (5th Cir.

1989}, cert. denied, 111 S.Ct. 148 (1990) ........

District Council of Painters v. Kashak, 774 F.2d

985 (9th Cir. 1985) a re Peer

Franklin Electric Co. v. U.A.W. Local 1000, 886

F.2d 188 (8th Cir. 1989)... a:

George Day Construction Co., Ine. v. Carpenters

Local 354, 722 F.2d 1471 (9th Cir. 1984). ......

GK Moat. v. Hotel Employees Local 274, 930 F.2d

i fe Re 8 RE A ATO ease

Interstate Brands Corporation, Butternut Bread

Division v. Teamsters Local 135, 909 F.2d 885

(6th Cir. 1990), cert. denied, 111 S.Ct. 1104

IE iota Noss scnascaseentieicaseceds daca eae inn teeasananane -

Johnston Boiler Co. v. Local Lodge No. 893, 753

if FF F. ge >: SORCER on

Jones Dairy Farm v. Local B-1236, 760 F.2d 173

(7th Cir.), cert. denied, 474 U.S. 845 (1985) _.13,

Kraemer & Sons v. Local 695, 182 LRRM 2524

(W.D. Wis. 1986) ............ pees

Lattimer-Stevens Co. v. District 27, 913 F.2d 1166

(6th Cir. 1999)... ;

Local 36 v. Atlas Air Conditioning Co.. 926 F.2d

y 2: bt | } Re ee

Page

12,14

14, 16

TABLE OF AUTHORITIES—Continued

Page

Mobil Oil Corp. v. Independent Oil Workers Union,

679 F.2d 299 (3d Cir. 1982) Gakic 14

Pack Concrete, Inc. v. Cunningham, 866 F. 2d 283

(9th Cir. 1989) ........ EE OEE IOS AN neh se 8 oa 12

Pennsylvania Power Company v. Local 272, 886

F.2d 46 (3d Cir. 1989) 11

Roche v. United States Postal Service, 828 F. 2d

1555 (Fed. Cir. 1987) Be FE Me ASL Fabel 6

Steelworkers v. American Me nufacturers Co., 363

U.S. 564 (1960) 19

Steelworkers v. Enterprise Wheel & Car Corp., 363

U.S. 593 (1960) Cee GS

Steelworkers v. Warrior and Gulf Navigation Co.,

363 U.S. 574 (1960) . 19

Teamsters Local 764 v. J.H. Merritt & Co., 770

F.2d 40 (1985) ; , 14

United Food and Commercial Workers v, Lucky

Stores, Inc., 806 F.2d 1385 (9th Cir. 1986)... 12

United Paperworkers Int'l Union v. Misco, Ine.,

484 U.S. 29 (1987) 10, 12, 13, 15, 16, 17, 18, 19

United Steelworkers v. American Smelting, ete.,

648 F.2d 863 (3d Cir.), cert. denied, 454 U.S.

BE CED eociceccecercceess anne 11

Van Waters & Rogers, Inc. v. Teamsters Local 70,

913 F.2d 736 (9th Cir. 1990) 14

Vie Wertz Distributing v. Teamsters Local 1038,

S08 F'.26 1136 (Gth Cir. 1989) ............................... 11

W. R. Grace & Co. v. Rubber Workers, 461 U.S.

le IED ‘wisccshueccceatenses =a EN, RA ae, sree, 11,12

STATUTES

Labor Management Relations Act § 203(d), 29

U.S.C. $178 (ad) ............. 19

ane Management R elations Act § § 301, 29 US

§ 185 Bs 8

Postal Reorganization Act of 1970, 39 U.S.C.

2 Eanes aakn aan east iets cn ete a ee, A

IN THE

Sipreme Court of the United States

OCTOBER TERM, 1990

No.

AMERICAN POSTAL WORKERS UNION, AFL-CIO,

Petitioner

Vv.

UNITED STATES POSTAL SERVICE,

Respondent

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

PETITION FOR A WRIT OF CERTIORARI

Petitioner American Postal Workers Union, AFL-CIO

(APWU), respectfully petitions this Court to issue a

writ of certiorari to review the judgment and decision

of the United States Court of Appeals for the Fifth Cir-

cuit in United States Postal Service v. American Postal

Workers Union, AFL-CIO, Fifth Circuit No. 90-1562.

OPINIONS BELOW

The Opinion of the Court of Appeals is reported at 922

F.2d 256. It is reproduced at pp. la-9a of the Appendix

to this petition (“App.”). The Memorandum Opinion of

the District Court is unreported. It is reproduced at

App. 10a-14a. The arbitration award at issue here is

unreported and is reproduced at App. I5a-24a.

JURISDICTION

The decision of the Court of Appeals and its judgment

(App. la-9a) were issued on January 28, 1991. A timely

petition for rehearing was denied on February 26, 1991

(App. 25a). On April 29, 1991, Mr. Justice Scalia en-

tered an order extending the time for filing this petition

to June 21, 1991. This Court has jurisdiction under 28

U.S.C. § 125411).

STATUTORY PROVISION INVOLVED

The statutory provision involved in this case is 39

U.S.C. § 1208(b) which is set forth in the Appendix to

this petition at 26a.

STATEMENT OF THE CASE

Petitioner, the American Postal Workers Union, AFL-

CIO (“APWU”) is a labor organization representing

employees of Respondent United States Postal Service

(“USPS” or “Postal Service”). The USPS and the

APWU are parties-to a nationwide collective bargaining

agreement ‘hereinafter the “National Agreement”). The

grievance at issue in this case arose under the 1984-1987

National Agreement.

The National Agreement contains a broad arbitration

provision and broad definition ef a grievance. Virtually

any dispute between the parties which arises under the

National Agreement is subject to the grievance-arbitra-

tion procedure.’

The National Agreement expressly provides that issues

of arbitrability may he reselved by the arbitrator. It

further provides, without qualification, that such deci-

sions are to be “final and binding.” Article 15, Section

4.A(9) thus states:

1 Pertinent provisions of the National Agreement and contrac

tually mandated regulations are reprinted in an Appendix to this

Brief, at 27a-29%a.

Any dispute as to arbitrability may be sub-

“mi ited to the arbitrator and be determined by such

arbitrator. The arbitrator’s determination shall be

final and binding.

With regard to the merits of an arbitration decision,

Article 15, Section 4.A (6) provides:

A'l decisions of an arbitrator will be final and

binding. All decisions of arbitrators shall be limited

to the terms and provisions of this Agreement, and

in no event may the terms and provisions of this

Agreement be altered, amended, or modified by an

arbitrator.

Under the National Agreement, the Employer is re-

quired to adhere to the Federal Employee’s Compensa-

tion Act (FECA), subchapter I of Chapter 81 of Title

5 of the U.S. Code, and to promulgate binding regula-

tions in compliance with that Act. National Agreement

Article 21; App. 28a. The Employer’s regulations prom-

ulgated pursuant to Article 21 of the Agreement are in-

cluded in Part 540 of the Postal Service Employee and

Labor Relations Manual (“ELM”). These provisions of

the ELM are incorporated by reference into the Nationa!

Agreement by virtue of Article 19 of the National Agree-

ment. App. 28a.

The ELM provisions unambiguously require the Postal

Service to grant an employee injured on the job leave

without pay for up to one year from the date workers

compensation commences. ELM Section 545.91, App.

29a. The employee must also be retained on the employ-

ment rolls during this time. ELM Section 545.93; App.

29a. If the employee recovers within one year, it is the

obligation of the Postal Service to permit the employee

to “resume employment in the former or equivalent posi-

tion.” ELM Section 546.121; App. 29a. FECA and the

Postal Service’s implementing regulations in the ELM

are applicable to both probationary and permanent em-

ployees. App. 21a.

The discharged employee whose grievance is at issue

in this case, Darel Smith, was hired to work as a Dis-

tribution Clerk at the Fort Worth, Texas post office. Ap-

proximately midway through Mr. Smith’s 90-day proba-

tionary period, he was injured in a work-related auto-

mobile accident and was placed on paid leave in accord-

ance with the ELM requirements. When Mr. Smith re-

turned to work after his recovery, still during his proba-

tionary period, he was given a termination notice that

was to take effect immediately. The notice stated:

“(t|his termination of your employment is due to your

unsatisfactory performance as a Postal employee.” App.

17a?

The APWU filed a grievance on behalf of Mr. Smith,

contending that even as a probationary employee Mr.

Smith was entitled by the National Agreement to be re-

instated following recovery from his on-the-job injury.

As a remedy for the alleged violation of Mr. Smith’s

rights, the APWU asked that Mr. Smith be reinstated

with full seniority status and compensated for all lost

wages. App. 18a. The grievance was appealed through

the grievance procedure of the National Agreement to

arbitration.

In response to the grievance, the Postal Service took

the position that the grievance could not be heard because

the termination occurred during Mr. Smith’s probation-

ary period. App. 18a. The Postal Service further as-

serted that, while it had not made a decision to termi-

2Mr. Smith had received a customary 30-day evaluation. App.

16a. Although his supervisor rated Mr. Smith’s performance as less

than satisfactory in several respects, the supervisor did not recom-

mend that Mr. Smith be terminated. Rather, Mr. Smith was as-

signed to further training. Shortly after the 30-day evaluation, the

supervisor issued a memorandum to higher management requesting

that Mr. Smith be immediately terminated for failing to follow in-

structions on a particular day. No action was taken on this recom-

mendation prior to the time Mr. Smith suffered his injury and was

placed on leave.

nate Mr. Smith at the time of his 30-day evaluation, it

did make such a determination thereafter, although it

had not communicated that decision to Mr. Smith until

he attempted to return from his on-the-job injury. App.

19a, 20a.

When the grievance reached arbitration, the parties

submitted two issues to the Arbitrator:

1. Whether the instant grievance is arbitrable?

2. Whether the grievant’s termination violated the Na-

tional Agreement and/or federal law, and if so,

what is the remedy?

App. 16a.

In asserting that the grievance filed on behalf of Mr.

Smith was not arbitrable, the employer relied upon Ar-

ticle 12, Section 1, of the National Agreement which

states, in pertinent part:

The probationary period for a new employee shall

be ninety (90) calendar days. The Employer shall

have the right to separate from its employ any pro-

bationary employee at any time during the proba-

tionary period and these probationary employees

shall not be permitted access to the grievance proce-

dure in relation thereto. ...

App. 27a.

The Union contended that Mr. Smith was unqualifiedly

entitled to reinstatement following recovery from his on-

the-job injury, that he was entitled to continuous credit

for employment service to the date of his reinstatement,

and that he should, therefore, be reinstated as a non-

probationary employee.

The Arbitrator found the grievance to be arbitrable,

concluded that the termination violated the National

Agreement, and ordered the USPS to reinstate Mr.

Smith as a probationary employee.

The Arbitrator’s Decision

In his ruling that Mr. Smith was entitled to be rein-

stated by way of the grievance procedure, the Arbitra-

tor acknowledged that “[t]here can be no serious ques-

tion about the right of the Postal Service to issue a re-

moval notice any time within the first 90 days of a per-

son’s employment. That is to say, Management may

make this decision and take this action without having

to prove that it had ‘just cause’ as this term is used in

Articles 3 and 16 [of the National Agreement|.” App.

2la. The Arbitrator found, however, that under the Na-

tional Agreement all postal employees, including proba-

tionary employees, are contractually entitled to assert

rights protected by FECA and the ELM regulations

since “|The ELM provision] makes no distinction be-

tween a permanent employee and one that is on proba-

tion.” App. 21a.

The Arbitrator concluded that the contractual restora-

tion rights provided to employees under the ELM apply

whenever the employee’s removal is “the result of, or

substantially related to, the compensable injury,” and

that “in essence, . . . the employee should be reinstated

unless it can be said with reasonable assurance that the

[employee’s] absence due to on-the-job injury had noth-

ing whatever to do with Management’s decision to in-

itiate the removal action.” App. 22a. (Emphasis in

original. )*

In response to the employer’s contention that its right

to terminate employees during their probationary period

foreclosed an arbitral remedy, the Arbitrator noted that

the USPS had not exercised its right te issue a removal

8 The Arbitrator buttressed his reading of the ELM by reference

to Roche v. United States Postal Service, 828 F.2d 1555, 1557 (Fed.

Cir. 1987) in which the Court ruled that employees are entitled to

appeal the denial of statutory restoration rights irrespective of their

probationary status if their removal was substantially related to a

compensable injury.

notice prior to Mr. Smith’s injury. The Arbitrator ob-

served that while Mr. Smith’s 30-day evaluation had

been less than satisfactory, “the fact is, he was not dis-

charged.” Accordingly, the Arbitrator found that it

“must be assumed that management held out hope that

he would respond to training and indoctrination,” and

that prior to his injury leave “the decision had not been

made, namely, that the grievant was unwilling or unable

to make the necessary improvement.” App. 23a.‘

The Arbitrator ruled that, on these facts, it was rea-

sonable to conclude that Mr. Smith “was trying to meet

management’s standards of performance but was unable

to demonstrate this because he was absent due to com-

pensable injury” and accordingly was entitled to rein-

statement under the contract inasmuch as his separation

“was the result of, or substantially related to, the com-

pensable injury.” App. 23a.

The Arbitrator rejected the Union’s request that Mr.

Smith be reinstated as a non-probationary employee, rul-

ing instead that the USPS was required to reinstate Mr.

Smith in a probationary status and “to afford him the

remainder of his probationary pericd to qualify as a

permanent employee.” App. 15a.

The Decision of the District Court

The Postal Service brought suit in the United States

District Court for the Northern District of Texas, seek-

ing an order setting aside the arbitrator’s award; the

APWU counterclaimed for enforcement of the award.

* The Arbitrator discounted the less than favorable 30-day evalua-

tion of Mr. Smith, noting the uncontroverted evidence that “it is

almost routine to give probationary employees unsatisfactory rat-

ings in order to motivate them and to convince them that manaye-

ment’s standards are high.” App. 23a.

Jurisdiction for the suit was based on Section 1208(b)

of the Postal Reorganization Act, 39 U.S.C. § 1208(b).’

On cross-motions for summary judgment, the district

court granted judgment in favor of the Postal Service,

vacating the arbitrator’s award. In a brief opinion, the

court observed that the first issue to be resolved was

“whether the Arbitrator exceeded his authority.” App.

lla. The court ruled that “|a|lthough the Arbitrator may

have implicitly considered the issue of arbitrability, his

decision is not absolutely immune from judicial review

as defendants suggest. If the arbitrator exceeded his au-

thority under the collective bargaining agreement, the

Court may set aside the award. Container Products r.

United Steelworkers, 873 F.2d 818, 820 (5th Cir. 1989).”

App. 12a. In the opinion of the district court, “|u|nder

the clear language of the National Agreement, proba-

tionary employees are not permitted access to the griev-

ance procedure in relation to a termination within the

5 Section 1208(b) of the Postal Reorganization Act (PRA), 39

U.S.C. § 1208(b), provides:

(b) Suits for violation of contracts between the Postal Service

and a labor organization representing Postal Service employees,

or between any such labor organizations, may be brought in any

district court of the United States having jurisdiction of the

parties, without respect to the amount in controversy.

This provision is substantively identical to Section 301(a) of the

Labor Manayement Relations Act of 1947 (LMRA), 29 U.S.C. § 185,

which provides:

(a) Suits for violation of contracts between an employer and a

labor organization representing emplovees in an industry affect-

ing commerce as defined in this Chapter, or between any such

labor organizations, may be brought in any district court of the

United States having jurisdiction of the parties, without respect

to the amount in controversy or without regard to the citizen-

ship of the parties.

It is well settled that these provisions are substantively the same.

See Bowen v. United States Postel Service, 459 U.S. 212, 232 n.2

(1983) (White, J., dissenting); American Postal Workers Union,

AFL-CIO wv. United States Postal Service, 823 F.2d 466, 468 (11th

Cir. 1987).

probationary period. Article i2, Section 1.A. The arbi-

trator clearly exceeded his authority under the clear and

unequivocal language of the collective bargaining agree-

ment.” App. 12a.

The Decision of the Court of Appeals

On appeal, the Fifth Circuit affirmed the judgment of

the District Court. App. 9a. Notwithstanding the arbi-

trator’s factual finding (App. 23a) that Mr. Smith’s dis-

charge was “the result of or substantially related to the

compensable injury,” the Court of Appeals stated that

“the Postal Service fired Smith because of his ‘unsatis-

factory performance as a postal employee.” App. 2a.

After an analysis of the pertinent provisions of the col-

lective bargaining agreement, the Court concluded (App.

ba):

We agree with the Postal Service that even when,

as in this case, a probationary employee alleges that

his termination violates Articles 19 and 21 of the

National Agreement, Article 12 of that Agreement

clearly denies probationary employees any right to

resort to grievance and arbitration procedures.

In reaching this conclusion, the Court of Appeals in-

voked what it characterized as “well-established prin-

ciples of construction [which] require that the specific

trump the general provision” (footnote omitted). In the

Court’s view, even the meritorious assertion that Mr.

Smith was entitled to reinstatement under Articles 19

and 21 of the National Agreement could not “confer on

probationary employees the right to arbitration on issues

concerning these articles that Article 12 expressly denies

them.” App. 2a.

With regard to Article 15.4.4'9) of the Nationa] Agree-

ment, which provides that an arbitrator's decision on the

issue of arbitrability “shall be final and binding,” the

Court of Appeals held that “|t|he same principle of con-

struction [that the specific trump the general pro-

vision] also applies to the conflict between Article 12 and

Article 15.4.4(9). .. .” App. 8a. Notwithstanding the

fact that the parties submitted the issue of arbitrability

to the arbitrator (see App. 16a, 18a), the Court of Ap-

peals held (App. 8a) :

Article 12 does not permit the arbitrator ever to

reach the question of arbitrability when the dismissal

at issue involves probationary employees. When the

arbitrator does so, he clearly exceeds his authority

under the National Agreement.

Accordingly, the Court of Appeals affirmed the District

Court judgment with the concluding observation that “the

arbitrator exceeded his authority under the clear and

unequivocal language of the National Agreement.” App.

9a.

REASONS FOR GRANTING THE WRIT

This Court has emphasized for more than 30 years

that “the courts play only a limited role when asked

to review the decision of an arbitrator. The courts are

not authorized to reconsider the merits of an award

even though the parties may allege that the award rests

on errors of fact or on misinterpretation of the contract.”

Paperworkers v. Misco, Inc., 484 U.S. 29, 36 (1988). “The

federal policy of settling labor disputes by arbitration

would be undermined if courts had the final say on the

merits of the awards.” Jd. (quoting Steelworkers v. En-

terprises Wheel & Car Corp., 363 U.S, 593, 596 (1960) ).

Equally well settled is the principle that absent a “clear

and unmistakable” agreement otherwise, “the question of

arbitrability—whether a collective bargaining agreement

creates a duty for the parties to arbitrate the particular

grievance— ... is to be decided by the court not by

the arbitrator” (citation omitted). AT&T Technologies v.

Communications Workers, 475 U.S. 648, 649 (1986).

The issue that has not been settled by this Court, and

on which the Circuits are now in disagreement, is the

proper standard of judicial review to be applied by the

courts where the parties have contractually committed the

question of arbitrability ot the arbitrator, and the ar-

bitrator’s decision on the merits of the arbitrability issue

is the subject of a motion to vacate or confirm the ar-

bitrator’s award.

I. THE DECISION BELOW SQUARELY CONFLICTS

WITH THE DECISIONS OF OTHER COURTS OF

APPEALS

A. The majority of the Courts of Appeals are in ac-

cord that in those cases in which the parties have agreed

to submit the question of arbitrability to an arbitrator,

review is subject to the same highly deferential

standard we employ in reviewing arbitrators’ rulings

on the merits. We will not vacate an arbitrator’s

arbitrability decision unless it cannot rationally be

derived from the collective bargaining agreement.

See United Steelworkers v. American Smelting, etc.,

648 F.2d 863, 867 (3d Cir.), cert. denied, 454 U.S.

1931 (1981).

Pennsylvania Power Company v. Local 272, 886 F.2d

46, 48 (3d Cir. 1989). Avcord, G K MGT v. Hotel Em-

ployees Local 279, 930 F.2d 301 (3d Cir. 1991). —

Thus, the Sixth Circuit has consistently held that “an

arbitrator’s decision of the issue of arbitrability [is] not

subject to independent judicial review. ... ‘{T]he scope

of the arbitrator’s authority is itself a question of con-

tract interpretation that the parties have delegated to

the arbitrator.’ (quoting W. R. Grace & Co. v. Rubber

Workers, 461 U.S. 757, 765 (1983)).” Vice Wertz Dis-

tributing v. Teamsters Local 1038, 898 F.2d 1136, 1139

(6th Cir. 1989). Accordingly, “ ‘the presumption of au-

thority that attaches to an arbitrator’s award applies with

equal force to his decision that his award is within the

submission.’ (quoting Johnston Boiler Co. v. Local Lodge

No. 893, 753 F.2d 40, 43 (6th Cir. 1985) ).” Id.”

This is also the long-standing rule in the Ninth Circuit,

where, in the leading case George Day Construction Co.,

Inc. v. Carpenters Local 354, 722 F.2d 1471, 1475 (9th

Cir. 1984), the court held that when the parties consent

to allow an arbitrator to decide the entire controversy,

including the question of arbitrability

[Wle are not at liberty to substitute our own view

in place of the arbitrator’s regardless of what our

view might be of the correctness of the arbitral de

cision. W. R. Grace & Co., 461 U.S. 757, 103 S.Ct.

at 2182. The parties have delegated that decision to

the arbitrator and we may not ‘second-guess’ him.

Id.

The Eighth Circuit has, likewise, concluded that the

narrow standard of review prescribed by Paperworkers

v. Misco, supra, must be applied to an arbitrator’s deter-

mination of arbitrability.

Once an issue is properly before the arbitrator,

the standard of judicial review for the decision is

deferential: if the award “draws its essence from

the collective bargaining agreement” then it must be

6 Accord, Interstate Brands Corporation, Butternut Bread Division

v. Teamsters, Local 135, 909 F.2d 885, 890 (6th Cir. 1990), cert.

denied, 1T1 S.Ct. 1104 (1991); Lattimer-Stevens Co. v. District 27,

913 F.2d 1166, 1170 (6th Cir. 1990) (“| T|he extraordinary defer-

ence given to an arbitrator’s ultimate decision on the merits applies

equally to an arbitrator’s decision that the parties have indeed sub-

mitted a particular issue for arbitration.” ).

7 Accord, United Food and Commercial Workers v. Lucky Stores,

Inc., 806 F.2d 1385, 1386 (9th Cir. 1986); District Council of

Painters v. Kashak, 774 F.2d 985, 989 (9th Cir. 1985). And, as in

the Third and Sixth Circuits the Ninth Circuit has held that “an

arbitrator’s interpretation of the scope of the issues submitted to

him is entitled to the same deference accorded his interpretation of

the collective bargaining agreement.” Pack Concrete, Ine. v. Cun-

ningham, 866 F.2d 283, 285 (9th Cir, 1989).

enforced [citation omitted]. This deferential stand-

ard applies equally to an arbitrator’s award arising

not merely out of a collective bargaining agreement,

but also from the parties independent submission of

questions ordinarily resolved by the courts. [Cita-

tion omitted} Because we cannot say the arbitra-

tor’s decision [on arbitrability] did not take its es-

sence from the parties agreement, we hold the dis-

trict court correctly upheld the arbitrator’s decision

to reach the merits of the issue.

Franklin Electric Co. v. UAW, 886 F.2d 188, 192 (1989).

B. The First Circuit has adopted an even more defer-

ential standard when reviewing an arbitrator’s decision

on arbitrability in those cases in which the parties have

submitted the issue to the arbitrator. In Berklee College of

Music v. Local 4412, 858 F.2d 31, 34 (1st Cir. 1988)

cert. denied 110 S.Ct. 53 (1989), the « urt deferred to

an arbitrator’s determination that an a; parently unam-

biguous contractual time limitation on the filing of griev-

ances could be overlooked under appropriate circum-

stances. As the court explained:

Whether we would find these arguments convinc-

ing were it up to us to interpret the contract is be-

side the point. The question is whether these argu-

ments make the arbitrator’s interpretation plausible.

We can imagine some judges or arbitrators accepting

these arguments (without stretching the imagination

very far). That being so, we must uphold the arbi-

trator’s determination. Misco, supra.

The Seventh Circuit’s decision in Jones Dairy Farm v.

Local B-1236, 760 F.2d 173 (7th Cir.), cert. denied,

474 U.S. 848 (1985), suggests that it takes a similar

approach to that of the First Circuit. In that case, the

court refused to permit the employer to obtain judicial

review of the arbitrator’s decision on arbitrability be-

cause the employer had “voluntarily and unreservedly”

submitted the issue of arbitrability to the arbitrator. Jd.

at 175. The court went on to explain that:

If people want a question of law resolved by an

arbitrator rather than a judge, there is nothing to

stop them. It would be odd if having consented to

have the arbitrator decide what its legal rights to

contract out work were, Jones Dairy Farm could

then have the same question redetermined by two

courts—the district court and this court. We hold it

could not, and therefore that the judgment must be

reversed with instructions to enforce the arbitrator's

award.

Id." According to the Seventh Circuit, once an arbitrator

has been given the authority to decide an issue, they

“cannot complain that the arbitrator exceeded his au-

thority” in deciding the issue. /d.”

*The court in Kraemer & Sons v. Local 695, 1232 LRRM 2524

.W.D. Wis. 1986), read Jones Dairy Farm even more broadly, stat-

ing that “Jones Dairy Farm dictates that the question of arbitra-

bility decided by the arbitrator is conclusive and may not be over-

turned by this court.” Jd. at 2527.

*The courts have further held that such an agreement can also

be implied from the parties’ conduct. By submitting an issue to

arbitration a party may be held to have waived objection to the

arbitrator’s authority, or impliedly to have agreed to abide by the

decision of the arbitrator on that issue. Local 36 v, Atlas Air Con-

ditioning Co., 926 F.2d 770, 771-772 (8th Cir. 1991); Van Waters &

Rogers, Inc. v. Teamsters Local 70, 913 F.2d 726, 740-741 (9th Cir.

1990); Interstate Brands v. Teamsters Local 185, 909 F.2d 885, 890

(6th Cir. 1990), cert. denied, 111 S.Ct. 1104 (1991); Jones Dairy

Farm v. Local 1286, 760 F.2d 173, 175 (7th Cir.), cert. denied,

474 U.S. 845 (1985); Teamsters Local 764 v. J.H. Merritt & Co., 770

F.2d 40, 42 (3d Cir. 1985); Mobil Oil Corp. v. Independent Oil

Workers Union, 679 F.2d 299 (3d Cir. 1982).

In this regard, the Eighth Circuit places the burden on the party

seeking to preserve the issue of arbitrability for review by the

courts. In Local 36 v. Atlas Air Conditioning Co., 926 F.2d_770,

771-772 (Sth Cir. 1991), that court suggested three alternative

methods:

Atlas could have objected to the arbitrator’s authority, re-

fused to argue the arbitrability issue, and proceeded to the

merits of the grievance. By making an objection as to jurisdic-

tion and an express reservation of the question on the record,

C. The rule in the Fifth Circuit, cannot be squared

with either the majority approach or the approach of

the First and Seventh Circuits. As explained by that

court in Container Products, Inc. v. United Steelworkers,

873 F.2d 818 (5th Cir. 1989), the Fifth Cireuit “con-

strue|s| the Supreme Court’s language [in Misco| as

an admonition concerning the merits of the controversy

rather than any jurisdictional prerequisites imposed by

the arbitration agreement.”’ Thus, the Fifth Circuit in

this case observed (App. 4a) that Misco requires the

court to “pay considerable deference to the merits of an

arbitrator’s award... .

But this court will not enforce an arbitrator’s deci-

sion on the merits if the arbitrator has exceeded his

authority under the collective bargaining agreement.

Delta Queen Steamboat Co, v. District 2 Marine

Engrs Beneficial Ass'n, 889 F.2d 599, 602 (5th Cir.

1989), cert. denied, U.S. , 111 S.Ct. 148,

112 LEd.2d 114 (1990); Container Prods., Inc. v.

United Steelworkers, 873 F.2d 818, 820 (5th Cir.

1989). [Emphasis added.] '’

Atlas would not have lost its defense. Second, Atlas could have

sought declaratory or injunctive relief prior to the commence-

ment of arbitration. Finally, Atlas could have notified the St.

Louis Board that they refused to arbitrate altogether.

Because none of these routes was followed, the court in Atlas held

that the employer was foreclosed from asserting non-arbitrability

as a defense to a motion to enforce the arbitration award. /d.

19 Tn Delta Queen, supra, the Fifth Circuit reviewed an award on

the merits of a discharge grievance and vacated the arbitrator’s

award ordering reinstatement of the employee. On the suggestion

of rehearing en bone, four judges dissented from the denial of re-

hearing, on the ground that by adopting a broad standard of review,

the court weakened the important policy of encouraging Alternative

Dispute Resolution (ADR) by “turning its back on a developed and

effective ADR procedure.” Delta Queen Steamboat Company v. Dis-

trict 2, MEBA, 897 F.2d 746, 750 (5th Cir. 1990) (Williams, J., with

whom Politz, King and Johnson, Circuit Judges, joined, dissenting

from the denial of rehearing en bane).

| peeeeeeneenereeeenieseneennemeiill

In making the determination that the arbitrator had

“exceeded his authority under the collective bargaining

agreement” in this case, th ecourt below independently

interpreted the collective bargaining agreement cor.clud-

ing that “Article 12 [of the National Agreement] does not

permit the arbitrator ever to reach the question of ar-

bitrability when the dismissal issue involves probationary

employees”. App. 8a.

D. The sum of the matter is that in the other Cir-

cuits whose decisions are reviewed above, parties who

submit the issue of arbitrability to the arbitrator, in ad-

dition to the merits of their dispute, are either bound

by the arbitrator‘s decision on arbirability or may obtain

review of it only under the narrow, deferential standard

set by this Court in Misco. As the Eighth Circuit in

Franklin Electric, supra, explained in declining to en-

gage in extensive analysis of the collective bargaining

agreement (id.):

Because we are deciding appellant’s joint jurisdic-

tional and arbitrability questions based on their vol-

untary submission to the arbitrator, we will not

reach its extensive arguments concerning the limited

scone of this CBA... . As we noted before, arbitra-

bility is a matter of contract and here both parties

by their conduct agreed to arbitrate the issue. A

party against whom the award was issued cannot

now declare it does not wish to be bound by the arbi-

trator’s decision. See, e.g., Jones Dairy Farm, 760

F.2d at 175-176.

The Fifth Circuit, by contrast, makes no effort to rec-

ognize, let alone defer to, the aribtrator’s contractually

delegated authority to decide arbitrability issues. Thus,

in this case, the court instead summarily dismissed the

broad grant of authority given to the arbitrator under

Article 15 of the National Agreement on the basis of its

own contractual interpretation that Article 12 constituted

a limitation to the arbiraor’s auhoriy that was applicable

in all instances."'

But the Postal Service and the APWU had by contract

agreed that an arbitrator’s determination of arbitrability

would be final and binding. Under the Misco standards,

as applied in the majority of circuits, the arbitrator’s de-

termination that he had jurisdiction to address the merits

of the instant grievance could accordingly only be set

aside if it wholly fails to “draw its essence from the col-

lective bargaining agreement.” 484 U.S. at 36. “[A]s

long as the arbitrator is even arguably construing or

applying the contract and acting within the scope of his

authority, that a court is convinced he committed serious

error does not suffice to overturn his decision.” /d. at 38.

In determining that he had jurisdiction in this matter,

the arbitrator was plainly “construing the contract.” In

the arbitrator’s view, probationary employees who make

a timely return from workers compensation leave have

contractual rights to reinstatement. App. 24a. This right

exists despite the fact that the contract otherwise denies

them the right to contest their dismissal during the proba-

tionary period. The arbitrator’s conclusion that he had

the authority to direct reinstatement as a remedy for the

breach of the employee’s contractual right is a reason-

able means of reconciling the two apparently inconsistent

provisions in the collective bargaining agreement. Cer-

tainly, it is a “plausible” one. Berklee College of Music

v. Local 4412, 858 F.2d 31, 34 (1st Cir. 1988), cert. de-

1 Even if the National Agreement had not expressly authorized

the arbitrator to decide this issue, it is clear that under the majority

rule of the circuit courts the strict deference standard would be

applicable to review of the arbitrator’s decision since the parties

“unequivocally” and “voluntarily” put the issue before nim without

reserving the right to de novo determination by the court. See

cases cited supra, n.7.

————————SE~” em

nied, 110 S.Ct. 53 (1989). Whether a court would have

reached the same result is simply “beside the point.” /d.’*

The decision below extends a conflict among the

circuits that makes the content of important federal

labor policy governing the finality of arbitrators’ awards

dependent upon the situs of the dispute.'* In the case of

the Postal Service, it results in a different standard be-

tween circuits in the application of a single National

Agreement. By adopting an unduly broad standard of

review that abrogates the parties’ agreement concerning

the authority of arbitrators to determine the arbitrability

of the parties’ disputes, the court below has weakened the

important policy of encouraging private mechanisms for

dispute resolution in direct conflict with this Court’s

teachings in Paperworkers v. Misco, Inc., supra.

12 We do not suggest that Arbitrator Sherman's decision is a model

of clarity, but that is not the standard. As the Court observed in

Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 596

(1960), arbitrators “sit to settle disputes at the plant level—disputes

that require for their solution knowledge of custom and practices

of a particular factory or of a particular industry as reflected in

particular agreements” (footnote omitted). In this case for exam-

ple, the arbitrator interpreted and applied a Postal Service Manual

as part of the parties’ contract—as indisputably it is under Article

19. He did so without spelling out what made it so. As APWU

officer Thomas Neill explained in his sworn declaration, the Manuals

are part of the parties agreement and are routinely interpreted and

applied by arbitrators appointed by the parties under that agree-

ment. App. 5a, n.2. Thus, while the court below concluded that

Article 12 is “clear and unequivocal” Arbitrator Sherman, with a

far greater knowledge of the parties’ agreement reached a different

conclusion, as did another arbitrator in American Postal Workers

Union, AFL-CIO v. United States Postal Service, No. 85-3811 (11th

Cir. 1986). See n.13, infra.

13 The Eleventh Circuit made a similar decision in a case which

was cited by Respondents in its briefs to the courts below in this

case. American Postal Workers Union v. United States Postal Serv-

ice, 11th Cir. No, 85-3811 (1986). The Eleventh Circuit’s decision

is not officially reported and is therefore considered not to have

precedential value under the rules of that court (11th Cir. R. 36-1).

Il. THE DECISION BELOW IS INCONSISTENT WITH

NATIONAL LABOR POLICY

Section 203(d) of the Labor Management Relations Act

of 1947, 29 U.S.C. § 173(d) states:

Final adjustment by a method agreed upon by the

parties is declared to be the desirable method for

settlement of grievance disputes arising over the

application or interpretation of an existing collective-

bargaining ageement. .. .

As this court observed in Steelworkers ». American Manu-

facturers Co., 363 U.S. 564, 566 (1960), this congressional

policy “can be effectuated only if the means chosen by the

parties for settlement of their differences under a collec-

tive bargaining agreement is given full play.”

As this court also observed, in another of the decisions

in the Steelworkers trilogy, “|slince arbitration of labor

disputes has quite different functions from arbitration

under an ordinary commercial agreement, the hostility

evinced by courts toward arbitration of commercial agree-

ments has no place here. For arbitration of labor dis-

putes under collective bargaining agreements is part and

parcel of the collective bargaining process itself.” Steel-

workers v. Warrior and Gulf Navigation Co., 363 U.S.

574, 578 (1960).

Most recently, in Paperworkers v. Misco, Inc., supra,

at 37 the court stated “|{t]he reasons for insulating arbi-

tral decisions from judicial review are grounded in the

federal statutes regulating labor-management _rela-

tions. ...

The courts have jurisdiction to enforce collective-

bargaining contracts, but where the contract provides

grievance and arbitration procedures, those proce-

dures must first be exhausted and courts must order

resort to the private settlement mechanisms without

dealing with the merits of the dispute. Because the

parties have contracted to have disputes settled by an

arbitrator chosen by them rather than by a judge, it

is the arbitrator’s view of the facts and of the mean-

ing of the contract that they have agreed to accept.

Courts thus do not sit to hear claims of factual or

legal error by an arbitrator as an appellate court

does in reviewing decisions of lower courts.

The Fifth Cireuit’s rule permitting independent judi-

cial review of arbitrators’ decisions concerning arbitra-

bility, where the parties have agreed to submit the issue

of arbitrability to the arbitrator, frustrates these impor-

tant policies. In this case, the APWU and the Postal

Service have contracted to obtain a “final and binding”

determination of arbitrability by an arbitrator they mu-

tually select. The parties submitted the issue of arbitra-

bility to the arbitrator together with the merits of the

dispute and obtained the arbitrator’s determination that

their dispute is arbitrable. Determination by the arbitra-

tor is the “method agreed upon by the parties” in this

ease. As such, it must be given “ful! play.” As the court

observed in Enterprise Wheel and Car, supra, the court

below had “no business overruling {the arbitrator] be-

cause their interpretation of the contract is different from

his.” 363 U.S. at 599. By doing so, the court below has

contravened federal labor policy prohibiting courts from

subsituting their own judgments for that of labor arbi-

trators chosen by their parties to resolve their disputes.

CONCLUSION

For the foregoing reasons, this petition for a writ of

certiorari should be granted.

tespectfully submitted,

DARRYL J. ANDERSON

(Counsel of Record)

O’DONNELL, SCHWARTZ

& ANDERSON

DIANA ORANTES CERESI 1300 L Street, N.W., Suite 200

2914 North Edison Street Washington, D.C. 20005-4178

Arlington, VA 22207 (202) 898-1707

Of Counsel Attorneys for Petitioner

APPENDIX

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 90-1562

Summary Calendar

UNITED STATES POSTAL SERVICE,

Plaintiff-A ppellee,

Vv.

AMERICAN POSTAL WORKERS UNION, AFL-CIO,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Texas

Jan. 28, 1991

Before GEE, SMITH, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

Defendant-Appellant, the American Postal Workers

Union, AFL-CIO (APWU), appeals the summary judg-

ment which the district court granted in favor of plain-

tiff-appellee, the United States Postal Service (Postal

Service). Stating that the arbitrator had clearly exceeded

his authority under the terms of the collective bargaining

agreement, the district court vacated the award of the

arbitrator who had directed that a probationary postal

employee be reinstated. Finding that the arbitrator ex-

ceeded his authority, we affirm.

OPERABLE FACTS

The discharged employee, Darel Smith, was hired on

March 15, 1986, as a distribution clerk at the Fort

Worth, Texas, Post Office. As a new employee, Smith had

to serve a 90-day probationary period. On Smith’s thirty-

day evaluation his supervisor stated that Smith was

failing to meet expectations, but he did not recommend

that Smith be terminated. In a memo dated April 19,

1986, his supervisor requested that Smith be immediately

terminated. The Postal Service had not acted upon that

request when during Smith’s probationary period, on

April 26, 1986, Smith was injured in a work-related auto-

mobile accident. As a result of the accident Smith was

placed on “compensable leave” pursuant to the Federal

Employees’ Compensation Act (FECA), 5 U.S.C. §§ 8101

et seq.

On May 15, 1986, while Smith was on compensable

leave and less than ninety days after he had entered its

employment, the Postal Service fired Smith because of

his “unsatisfactory performance as a Postal employee.’

Smith recovered from his injury and was able to return

to work on May 18, 1986.

Contesting Smith’s discharge, the APWU filed a griev-

ance pursuant to the collective bargaining agreement

(National Agreement) between the Postal Service and

the APWU. At arbitration the APWU contended that

Smith was fired because of his compensable injury and

that his firing violated FECA and postal regulations im-

plementing FECA.' The APWU sought to have Smith

reinstated with full seniority status (with no further pro-

bation) and compensation for all lost wages. In its de-

fense the Postal Service asserted that the arbitrator had

1 FECA covers postal employees. See 39 U.S.C. § 1005(c) (apply-

ing FECA to the Postal Service).

no authority to hear the grievance because the terms of

the National Agreement prohibited the union from con-

testing the discharge of a probationary employee.

The arbitrator addressed two issues: (1) “whether the

instant grievance is arbitrable; and (2) whether the

grievant’s termination violated the National Agreement

and/or federal law, and if so, what is the remedy?”

Having found the grievance arbitrable, the arbitrator

found that the Postal Service had violated the national

agreement. He ordered that Smith be reinstated as a

probationary employee and be made whole for all finan-

cial loss, but determined that Smith was not entitled to

full seniority status. Pursuant to Section 1208(b) of the

Postal Reorganization Act, 39 U.S.C. §1208(b), the

Postal Service then brought suit to vacate the award.

Both parties moved for summary judgment, which by

order dated May 16, 1990, the district court granted in

the Postal Service’s favor. This appeal timely followed.

DISCUSSION

Federal law encourages private resolution of labor dis-

putes through arbitration. See 29 U.S.C. §173(d). Em-

ployers and unions may, however, limit the discretion of

the arbitrator, as the Postal Service and the APWU have

done in article 15.4.A.(6) of their National Agreement,

which states:

[a]ll decisions of an arbitrator will be final and

binding. All decisions of arbitrators shall be limited

to the terms and provisions of this Agreement, and

in no event may the terms and provisions of this

Agreement be altered, amended, or modified by an

arbitrator.

On questions—of arbitrability article 15.4.A.(9) states:

fa]ny dispute as to arbitrability may be submitted

to the arbitrator and be determined by such ar-

bitrator. The arbitrator’s determination shall be final

and binding.

To encourage the private resolution of labor disputes,

courts pay considerable deference to the merits of an ar-

bitrator’s award. See United Paperworkers Int’l Union

v. Misco, Inc., 484 U.S. 29, 108 S.Ct. 364, 370, 98 L.Ed.

2d 286 (1987). But this court will not enforce an ar-

bitrator’s decision on the merits if the arbitrator has ex-

ceeded his authority under the collective bargaining

agreement. Delta Queen Steamboat Co. v. District 2 Ma-

rine Eng’rs. Beneficial Ass’n, 889 F.2d 599, 602 (5th Cir.

1989), cert. denied, USS. , 111 S.Ct. 148, 112

L.Ed.2d 114 (1990); Container Prods., Inc. v. United

Steelworkers, 873 F.2d 818, 820 (5th Cir. 1989). We have

stated that “|wlhere the arbitrator exceeds the express

limitations of his contractual mandate, judicial deference

is at an end.” Delta Queen, 889 F.2d at 602. The crucial

issue in this case is whether the arbitrator had jurisdic-

tion to hear Smith’s grievance.

The Postal Service argues that the National Agree-

ment unambiguously denies a probationary employee ac-

cess to the grievance procedure to challenge his dismissal

from employment. Article 12.1.A. states in relevant part:

~The probationary period for a new employee shall be

ninety (90) days. The Employer shali have the

right to separate from its employ any probationary

employee at any time during the probationary period

and these probationary employees shall not be per-

mitted access to the grievance procedure in relation

thereto.

(emphasis added).

The APWU, on the other hand, argues that the Agree-

ment also requires the employer to adhere to the pro-

visions of FECA and to promulgate binding regulations

which comply with that act. Article 21.4 states:

Employees covered by this Agreement shall be cov-

ered by subchapter 1 of Chapter 81 of Title 5, and

any amendments thereto, relating to compensation

for work injuries. The employer will promulgate

appropriate regulations which comply with applicable

regulations of the Office of Workers’ Compensation

Programs and any amendments thereto.

The employer’s regulations promulgated pursuant to

Article 21 of the Agreement are included in Part 540,

Injury Compensation Program, of the Postal Service Em-

ployee and Labor Relations Manual (ELM). After de-

claring that the “USPS has legal responsibilities to em-

ployees with job-related disabilities under 5 USC 8151

and the Office of Personnel Management’s regulations,”

section 546 of Part 540, Reemployment of Employees In-

jured on Duty, states:

When an employee fully overcomes the injury or dis-

ability within one year after the commencement of

compensation payments from OWCP . .. the USPS

must give an employee the right to resume employ-

ment in the former or equivalent position.

The union contends that while article 21 requires these

provisions, article 19 also incorporates them by reference

into the National Agreement. Article 19 states:

Those parts of all handbooks, manuals and published

regulations of the Postal Service, that directly relate

to wages, hours, or working conditions . . . shall con-

tain nothing that conflicts with this Agreement.’

2 Although article 19 states that nothing in the handbooks,

manuals and regulations shall conflict with the Agreement, it does

not specifically state that the Agreement incorporates these texts.

Thomas A. Neill, Director of Industrial Relations for the APWU,

whose duties include negotiation of the National Agreement and

administration of the grievance procedure, states in his “declara-

cereal

The Postal Service acknowledges that FECA applies to

probationary employees and that when such employees

suffer a work-related injury and are discharged because

of that injury they have a right to request reinstatement

when they recover. See 5 U.S.C. § 8151(b) (1). To en-

force such rights, however, probationary employees, ar-

gues the Postal Service, have recourse to the Merit System

Protection Board (MSPB), see 5 C.F.R. § 353.401, but

not, under the terms of the National Agreement, to ar-

bitration.

III

We agree with the Postal Service that even when, as

in this case, a probationary employee alleges that his

termination violates articles 19 and 21 of the National

Agreement, article 12 of that Agreement clearly denies

probationary employees any right to resort to grievance

and arbitration procedures. Non-probationary (per-

manent) employees alleging similar violations clearly

have recourse to arbitration, but the Agreement expressly

denies probationary employees that right. Such is the

Agreement for which the parties bargained.

The language of article 12 is, as the district court de-

clared, “clear and unequivocal’: “The Employer shall have

the right to separate from its employ any probationary

empioyee at any time during the probationary period and

these probationary employees shall not be permitted ac-

cess to the grievance procedure in relation thereto.”’

Articles 19 and 21 grant, as the arbitrator found, all

employees, both probationary and permanent, certain

rights and benefits. In so finding, the arbitrator, as the

district court stated, merely determined that a _ proba-

tion” that “[tjhe handbooks and manuals are applied in labor rela-

tions between the APWU and USPS as part of the National Agree-

ment.” These texts, Neill adds, are incorporated by reference into

the Agreement and arbitrators routinely interpret them in deciding

grievance arbitration cases. The Postal Service does not dispute

Neill’s sworn declaration.

tionary employee can assert rights pursuant to section

546 of the ELM. He did not expressly find, nor could he

have found, that articles 19 and 21 confer on probation-

ary employees the right to arbitration on issues concern-

ing these articles that article 12 expressly denies them.

See American Postal Workers Union v. United States

Postal Service, C.A. No. 85-2154, slip opinion (D.D.C.

Nov. 27, 1989) (although article 2 of National Agree-

ment expressly requires arbitration of disputes arising

under that article, probationary employees have no re-

course to arbitration because article 12 denies them that

right). When a specific and a general provision of an

agreement conflict, well-established principles of con-

struction require that the specific trump the general

provision.’ We follow that principle here.

3 Had the parties to the Agreement intended to confer on pro-

bationary employees the right to arbitrate matters concerning com-

pensable leave, they could have specifically included that right.

Given the presence at the bargaining table of union negotiators

possessing the experience and knowledge of Thomas A. Neill, the

Director of Industrial Relations for the APWU, the express and

unambiguous exclusion in article 12 of probationary employees from

the grievance procedure and, therefore, from arbitration suggests

that the parties anticipated that a probationary employee’s termina-

tion which is causally connected to his compensable injury would

not be a subject for arbitration. See American Postal Workers

Union, AFL-CIO v. United States Postal Service, C.A. No. 85-2154,

slip opinion (D.D.C. November 27, 1989) (although article 2 of

National Agreement expressly requires arbitration of disputes aris-

ing under that article, probationary employees have no recourse to

arbitration because article 12 denies them that right). To argue

otherwise is disingenuous.

Neill administers the grievance procedure. He is “responsih'e for

disseminating information and directions to APWU officers nation-

wide concerning the National Agreement, its meaning, and its

application.” As director he has reviewed “thousands of arbitration

awards in cases arbitrated under the National Agreement.” Be-

fore becoming director, Neill was a local and then a national officer

of the union and handled “thousands of grievances filed under the

National Agreement” in Texas and Louisiana.

The same principle of construction also applies to the

conflict between article 12 and article 15.A.4.9, which

states that the arbitrator’s decisions as to arbitrability

are final and binding. Article 12 does not permit the

arbitrator ever to reach the question of arbitrability

when the dismissal at issue involves probationary em-

ployees. When the arbitrator does so, he clearly exceeds

his authority under the National Agreement.

The union insists that a probationary employee dis-

missed while on compensable leave is not a probationary

employee. We disagree. Leave for injury suspends the

running of the clock on a probationary period, but it does

not alter the employee’s status as a probationary em-

ployee. His sufferings do not apotheosize his probationary

status into a more desirable one. Indeed, in ruling that

Smith should return as a probationary employee, the

arbitrator acknowledged, at least inferentially, that the

employee is still on probationary status.

We note that to deny a probationary employee the

right to arbitration after he is dismissed during com-

pensable leave is not to deprive him of all remedies for

not being reinstated after recovering from compensable

injury. If he can show that his firing resulted from a

compensable injury or was substantially related to one,

a probationary employee is entitled to appeal a denial of

reinstatement to the MSPB. Roche v. United States

Postal Serv., 828 F.2d 1555, 1557 (Fed.Cir.1987); see

also Rishavy v. United States Postal Serv., 35 M.S.P.R.

528 (1987).

Our decision does not conflict with those decisions which

hold, Rishavy, 35 M.S.P.R. 528 (Nov. 19, 1987), or imply,

see Roche, 828 F.2d 1555 (Fed.Cir.1987), that proba-

tionary status has no bearing on an employee’s restora-

tion rights. In both Roche and Rishavy the employees

successfully argued that their probationary status did

not curtail their right to appeal to the Merit System

Protection Board the Postal Service’s denial of restoration

rights after they had recovered from compensable injuries.

Neither of these cases, however, sheds any light on the

issue of arbitrability which confronts this court. These

decisions merely indicate that a probationary employee

terminated because of a compensable injury is not bereft

of a remedy for an infringement of a statutory right.

In conclusion, we agree with the district court that

Smith was a probationary employee and that under ar-

ticle 12 of the National Agreement, a probationary em-

ployee is not permitted access to the grievance procedure

in relation to a termination within the probationary

veriod, and thus is not entitled to arbitration. Conse-

quently, in ordering Smith reinstated as a probationary

employee, the arbitrator exceeded his authority under the

clear and unequivocal language of the National Agree-

ment. The decision of the district court is, therefore,

AFFIRMED.

10a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4-89-87-E

UNITED STATES POSTAL SERVICE,

Washington, D.C. 20260

VS.

AMERICAN POSTAL WORKERS UNION, AFL-CIO

ORDER

[Filed May 16, 1990]

This action arises out of an arbitration award to

reinstate a postal employee. The United States Postal

Service (“USPS”) brought this suit to set aside the

arbitration award because the arbitrator exceeded his

authority. The American Postal Workers Union, AFL-

CIO (“APWU”) is the representative for postal em-

ployees and has filed a counterclaim to enforce the award.

The case is now before the Court on the parties’ cross

motions for summary judgment.

FACTUAL BACKGROUND

The Postal employee involved is Darel A. Smith, a

former distribution clerk at the Fort Worth, Texas Post

Office. Smith was hired on March 15, 1986. On April

26, 1986, Smith sustained a work-related injury and was

placed on compensable leave. On May 15, 1986, Smith

was terminated from his employment. The APWU then

lla

filed a grievance pursuant to the collective bargaining

agreement in effect at the time, referred to as the “Na-

tional Agreement,” contesting Smith’s termination. The

APWU contended that Smith was terminated because of

his work related injury in violation of Section 546, Part

540 of the Employee and Labor Relations Manual

(“FE1LM”’), which is incorporated into the National Agree-

ment. The USPS challenged the arbitration on the basis

that the arbitrator did not have jurisdiction and, alter-

natively, Smith’s discharge was for unsatisfactory per-

formance, unrelated to his injury.

DISCUSSION

The first issue is whether the arbitrator exceeded his

authority. See, 9 U.S.C. § 10. The authority of an ar-

bitrator is derived from the contract itself. United Steel-

workers v. Enterprise Wheel & Car Corp., 363 U.S. 593,

597 (1960). Therefore, the Court must look to the Na-

tional Agreement to determine the scope of the arbi-

trator’s authority as agreed to by the parties. Article 12,

Section 1.A. provides in part:

The probationary period for a new employee shall

be ninety (90) calendar days. The Employer shal!

have the right to separate from its employ any pro-

bationary employee at any time during the proba-

tionary period and these probationary employees shall

not be permitted access to the grievance procedure in

relation thereto.

Because Smith was terminated while he was a probation-

ary employee, plaintiff argues, he was not entitled to the

grievance procedure through arbitration. Hence, the ar-

bitrator lacked jurisdiction and exceeded his authority

over the dispute.

However, defendant argues that the issue of arbitra-

bility was determined by the arbitrator as provided for

in the agreement. That determination, defendant argues,

12a

is final and not subject to judicial review. Article 15,

Section 4.A.(9) provides in part:

Any dispute as to arbitrability may be submitted

to the arbitrator and be determined by such arbi-

trator. The arbitrator’s determination shall be final

and binding.

The arbitrator’s award listed the issues as follows:

1. Whether the instant grievance is arbitrable?

2. Whether the grievant’s termination violated the

National Agreement and/or federal law, and if so, what

is the remedy?

Although the arbitrator never expressly held whether the

grievance was arbitrable, he nevertheless proceeded to

make a determination on the merits. It appears from the

award as though the arbitrator merely determined that a

probationary employee could assert rights pursuant to

Section 546 of the ELM. Once he determined that a pro

bationary employee could assert such rights, he addressed

the second issue of whether there was a violation under

Section 546.

Although the arbitrator may have implicitly considered

the issue of arbitrability, his determination is not abso-

lutely immune from judicial review as defendants sug-

gest. If the arbitrator exceeded his authority under the

collective bargaining agreement, the Court may set aside

the award. Container Products v. United Steelworkers,

873 F.2d 818, 820 (5th Cir. 1989). The essential facts

in this case are not in dispute. At the time of his ter-

mination, Smith was a probationary employee. Under the

clear language of the National Agreement, probationary

employees are not permitted access to the grievance pro-

cedure in relation to a termination within the probation-

ary period. Article 12, Section 1.A. The arbitrator clearly

exceeded his authority under the clear and unequivocal

language of the collective bargaining agreement.

Accordingly, it is hereby ORDERED that plaintiff’s

motion for summary judgment is GRANTED, defend-

13a

ants’ motion is DISMISSED, and the award of arbitra-

tion is hereby VACATED. A judgment consistent with

this order shall be rendered herewith.

Signed this 16th day of May, 1990.

/s/ Eldon B. Mahon

ELDON B. MAHON

United States District Judge

l4a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

Civil Action No. 4-89-87-E

UNITED STATES POSTAL SERVICE,

Washington, D.C. 20260

VS.

AMERICAN POSTAL WORKERS UNION, AFL-CIO

JUDGMENT

[Filed May 16, 1990]

This action came on for decision on cross-motions for

summary judgment before the Court, Honorable Eldon

B. Mahon, U.S. District Judge, presiding, and the issues

having been duly considered and an opinion having been

rendered, it is ORDERED and ADJUDGED that plain-

tiffs motion for summary judgment is GRANTED, de-

fendants’ motion is DISMISSED, and the award of ar-

bitration is VACATED.

Entered this 16th day of May, 1990.

/s/ Eldon B. Mahon

ELDON B. MAHON

United States District Judge

——,

15a

REGULAR ARBITRATION PANEL

GRIEVANT: D. Smith

Post OFFICE: Ft. Worth, TX

CASE No: S4C-3A-C-36259

IN THE MATTER OF THE ARBITRATION BETWEEN

UNITED STATES POSTAL SERVICE

and

AMERICAN POSTAL WORKERS UNION, AFL-CIO

Before: JAMES J. SHERMAN, ARBITRATOR

APPEARANCES:

For the U.S. Postal Service:

Bill Jackson

Labor Relations Representative

For the Union:

Bobby Kennedy

National Business Agent

Place of Hearing: MPO, Ft. Worth, Texas

Date of Hearing: October 5, 1988

AWARD: The grievance is sustained. The Postal Serv-

ice is directed to reinstate the grievant to his position as

a probationary employee, Distribution Clerk-Manual, and

(counting the time he has already worked) to afford him

the remainder of his probationary period to qualify as a

permanent employee. In addition, he must be made whole

for all financial loss. The Arbitrator shall retain jurisdic-

tion to resolve any dispute as to the remedy.

Date of Award: October 24, 1988

/3s/ James J. Sherman

JAMES J. SHERMAN

Arbitrator

l6a

ISSUE

1. Whether the instant grievance is arbitrable?

2. Whether the grievant’s termination violated the Na-

tional Agreement and/or federal law, and if so, what

is the remedy?

RELEVANT CONTRACT PROVISIONS

ARTICLE 3—Management Rights

ARTICLE 12—Principles of Seniority, Posting and Re-

assignments

ARTICLE 15—Grievance-Arbitration Procedure

ARTICLE 16—Discipline Procedure

ARTICLE 19—Handbooks and Manuals

FACTS

There is agreement on most of the essential facts.

The grievant was hired March 15, 1986 as a Distribution

Clerk-Manual, and was assigned to the Downtown Postal

Facility. On April 13, 1986, he received a 30 day evalua-

tion which is customary for employees on (90 day) pro-

bation. In this evaluation he was rated as follows:

Factor A: Attendance/Punctuality: does not meet ex-

pectations at this time

Factor B: Following Directions: meets or exceeds ex-

pectation at this time

Factor C: Compliance with Regulations (safety, dress/

footwear, conduct): does not meet expectations at

this time.

Factor D: Task Performance: Does not meet expecta-

tions at this time.

Factor E: Job Knowledge: does not meet expectations

at this time.

17a

In addition the supervisor, Tommy Baker, made the fol-

lowing observation:

Mr. Smith does not meet expectations at this time.

He has been regular in attendance but two hours

late on one occasion. He follows all directions given

and complies with regulations. He dresses adequately

but does not present a professional appearance in his

jogging suits. His task performance is well below

expectations. He is very slow casing box mail and

his error rate is high. Mr. Smith has been assigned

the 76104 scheme and will begin scheme training 4-

16-86.

It should be mentioned that the supervisor, Tommy

Baker, had three options in the “Overall Rating:” 1.

Meets or exceeds expectations, 2. Does not fully meet ex-

pectation at this time, or 3. Fails to meet expectation:

Separation Recommended. And he did not check box

number 3.

On April 13, 1986, the grievant was assigned to scheme

training which was to commence and did commence on

April 16, 1986. However, on April 26, 1986, he was

involved in an auto accident related to work, was in-

jured, and he was placed on compensable leave.

On May 15, 1986, the grievant’s employment was ter-

minated. The reason for the termination was explained

in a letter dated May 15, 1986 as follows:

This is official notice that you will be separated from

the Postal Service at the end of your tour of duty

on the day you receive this memorandum. This ter-

mination of your employment is due to your unsatis-

factory perforrnance as a Postal employee.

The instant grievance protests the grievant’s termina-

tion as being in violation of both the National Agree-

ment and federal law.

18a

POSITION OF THE UNION

The Union appreciates that the grievant was a pro-

bationary employee at the time of his termination and

was, therefore, not entitled to all of the rights enjoyed

by employees who hold seniority. However, he was en-

titled to the rights provided by the Postal regulations

and the rights provided by law. These rights include

protection against termination when the termination was

the result of a compensable injury. And the evidence

indicates that the grievant, in all probability, would have

completed his period of probation and become a career

Postal employee but for the auto accident which was

clearly not his fault. Finally, the Union contends that

the grievant did complete his period of probation because

according to the Postal regulations, time recorded as com-

pensable leave time is counted as time on the active roll.

Accordingly, he should be reinstated with full seniority

status, and compensated for all lost wages.

POSITION OF THE POSTAL SERVICE

The Postal Service contends that the instant grievance

should be dismissed as not a proper subject for arbitra-

tion. It supports this position by pointing to the clear

contract language and to the evidence presented at the

hearing. To be more specific, Article 12 provides:

PRINCIPLES OF SENIORITY, POSTING AND

REASSIGNMENTS

Section 1. Probationary Period

A. The probationary period for a new employee shall

be ninety (90) calendar days. The Employer shall

have the right to separate from its employ any pro-

bationary employee at any time during the proba-

tionary period and these probationary employees shall

not be permitted access to the grievance procedure

in relation thereto... .

19a

The evidence shows that the grievant was hired March 15,

1986 and on his 30 day evaluation was rated unsatis-

factory in four of the five factors subject to evaluation.

Clearly, management had every reason and every right

to terminate the grievant’s employment at this time. But

management, generously, decided to give the grievant

more time to correct his deficiences. As Supervisor Baker

explained, he planned to terminate the grievant’s employ-

ment at the time of the 60 day evaluation unless the

grievant showed significant improvement prior to that

time. However, the grievant’s conduct immediately fol-

lowing the 30 day evaluation convinced management that

he would not or could not meet reasonable standards of

behavior. To be precise in a memo dated April 19, 1986

from Supervisor Baker to C. Haynes, Mr. Baker re-

quested that the grievant be terminated immediately.

The memo states:

Request an immediate termination of PTF Clerk

D. A. Smith for failure to follow the instructions of

his supervisor. On 4-13-86 I instructed Mr. Smith to

report to the GMF (PEDC) on 4/16/86 at 2200 for

scheme training orientation. He was told to report to

the downtown station after completing the scheme

training orientation and work for a total of four

hours. (two hours orientation and two hours of box

mail distribution.) On 4-16-86 Mr. Smith worked

only two hours. He ended tour at the GMF after

orientation. On 4-17-86 Smith worked 4.09 hours.

This was Mr. Smith’s scheduled day off. He was

not instructed, or given permission to work on

4/17/86.

Before this memo could be acted upon, the grievant

became involved in an auto accident, on April 26, 1986,

was injured and was off on compensable leave. However,

on May 16, 1986, Supervisor Baker prepared a 60 day

evaluation of the grievant’s performance and gave him

a rating of “Fails to Meet Expectations: Separation

20a

recommended. He also provided the following explanatory

comments:

Mr. Smith fails to meet expectations and separation

is recommended for; making excessive errors on the

box line, failure to follow the specific instructions of

his supervisor, and failure to adhere to the posted

duty schedule. On 4-13-86 Mr. Smith was informed

that his error rate casing box mail was unacceptable.

On 4-19-86 he was given a case check. Some of the

errors found were: misboxed mail, mail boxed for

a previous boxholder when there were specific instruc-

tion to verify the mail, and mail received without

a box number placed in the wrong box. On 4-22-86

Mr. Smith was given another case check. He was

only casing 90% correctly. On 4-13-86 Mr. Smith

was instructed to report to the GMF (PEDC) on

4-16-86 at 2200 for scheme training orientation. He

was also told to report to the downtown station after

completing the orientation and work for at least an

additional 2 hours for a combined total of 4 hours.

On 4-16-86 Mr. Smith worked only two hours. He

ended tour at the GMF after scheme training orienta-

tion and did not report for duty at the downtown

station as instructed. On 4-17-86 Mr. Smith worked

for 4.09 hours on his scheduled off day. He was not

instructed to, or given permission to, work on 4-17-86.

Finally, it should be noted that after preparing the

60 day evaluation and the removal notice, management

attempted to inform the grievant of its decision to ter-

minate his employment. But the telephone number which

he provided to management was disconnected. And when

management attempted to deliver the removal notice to

the address which the grievant provided, the residence

was not occupied. Hence, management had to wait until

the grievant showed up to get his check to issue the re-

moval notice.

ier a.

21a

DISCUSSION AND OPINION

There can be no serious question about the right of the

Postal Service to issue a removal notice anytime within

the first 90 days of a person’s employment. That is to

say, management may make this decision and take this

action without having to prove that it had “just cause”

as this term is used in Articles 3 and 16. However, as

the Union pointed out, Postal regulations (ELRM § 546,

entitled “Reemployment of Employees Injured On Duty,”

provides as follows:

546.1 Law

11 General. The USPS has legal responsibility

to employees with job-related disabilities under 5

U.S.C. 8151 and the Office of Personnel Manage-

ment’s (OPM) regulations, as outlined below.

12. Disability Fully Overcome Within 1 Year

.121 Obligation. When the injury or disability is

fully overcome within one year after the commence-

ment of compensation payments from OWCP, or

after compensable disability recurs, the USPS must

give an employee the right to resume employment in

in the former or equivalent position.

.122 Rights and Benefits. Upon reemployment,

all rights and benefits which an employee would have

had or acquired in the former position, had there

been no injury or disability, must be restored.

Management contends that the above described rights

protect the employment of a person who has completed a

probationary period and currently enjoys the status of a

permanent employee with all the rights which seniority

provides. However, the regulation does not support this

contention by management: it makes no distinction be-

tween a permanent employee and one that is on proba-

tion. Furthermore, the evidence presented by the Union

22a

indicates that a Federal Circuit Court has recently ruled

that employees are entitled to these statutory restoration

rights irrespective of their probationary status, See

Roche v. USPS, 828 F.2d. 1555 (Fed. Cir. 1987).

As a back-up contention, management asserted that the

regulation’s protection extended only to employees who

had been discharged because of their absence on com-

pensable leave. The Arbitrator appreciates the logic of

this contention. But according to the Roche decision

(supra) the protection is broader than this: the employee

is entitled to reinstatement if he/she is able to show that

his removal was the result of, or substantially related to,

the compensable injury.

The Arbitrator is not completely comfortable with the

role he is forced to assume in this instance for several

reasons. First, he is not certain to what extent he is

lerally obligated to follow precedent established in the

Merit Service Protection Board jurisdiction. Indeed, the

law is unsettled on this point. Secondly, since he re-

ceived in evidence only one Merit Service Protection Board

case, he is less than completely convinced that this one

case represents the majority opinion on this important

issue, Third, it appears that the Roche decision calls for

a resolution of the issue: whether the grievant’s dis-

charge was “. . . substantially related to, the compens-

able injury... .’’ And the term used by the Court “sub-

stantially related to” is anything but precise.

In the absence of any evidence bearing upon the legis-

lative intent underlying this imprecise term, the Arbi-

trator concluded that it means, in essence, that the em-

ployee should be reinstated unless it can be said with

reasonable assurance that the absence had nothing what-

ever to do with management’s decision to initiate the

removal action.

Does the evidence presented by management meet this

test? The Arbitrator does not believe it does. To explain,

23a

everyone agreed that the grievant’s 30 day evaluation

was less than satisfactory and that he could have been

discharged at that time with no contractual entangle-

ments. But the fact is, he was not discharged. So, it

must be assumed that management held out hope that

he would respond to training and indoctrination.

Thereafter, according to certain testimony and a sup-

porting document, Supervisor Baker recommended to his

superior that the grievant be discharged immediately.

Obviously, management had no need to wait any longer

if it was convinced that the grievant could not or would

not meet its standards of performance. That is, there was

no need to wait until the customary 60 day evaluation;

management could have simply issued a removal notice

and called for a replacement. But no one acted upon

Supervisor Baker’s recommendation. So, it must be as-

sumed that the decision had not been made, namely, that

the grievant was unwilling or unable to make the neces-

sary improvement. Parenthetically, the Union’s advocate

expressed an opinion which was not refuted and which

seemed quite logical. He said that it is almost routine

to give probationary employees unsatisfactory ratings in

order to motivate them and to convince them that man-

agement’s standards are high. He also stated that em-

ployees generally take this message seriously and work

hard to satisfactorily complete the probationary period.

The point is, perhaps the grievant was not as unaccept-

able as the 30 day evaluation would imply. And perhaps,

he was trying to meet management’s standards of per-

formance but was unable to demonstrate this because

he was absent due to the compensable injury. If this

was the case, it would be reasonable to say that his dis-

charge was “the result of or substantially related to the

compensab'e injury,” as these words are used in the

Roche decision.

The Union requested as a remedy that the grievant be,

not only reinstated to his former status, but also awarded

24a

a permanent position. In support of this request, it

pointed to the postal regulations “£I.RM 377.2) entitled

“How to Count Probationary Service.” This section man-

dates that “Periods of absence during which an employee

is carried on the rolls are counted toward completion of

the probationary period.” And it pointed out that an

employee on compensable leave is carried on the rolls.

The Arbitrator did not have access to the entire appli-

cable regulations. However, based upon the provisions

which were presented in evidence, there appears to be

no support for the Union’s position in this respect. To

explain, Section 377.2 of the ELRM sets forth various

types of situations wherein employees should receive credit

toward their probationary period (for example, a period

of military service) but there is no specific reference to

compensable leave.

In conclusion, the Arbitrator has no choice but to sus-

tain the grievance. The grievant met the criteria de-

scribed in 5 U.S.C. § 8151 and O.P.M. regulations. That

is, he received an on-the-job injury which resulted in a

period of absence on compensable leave and he recovered

from this injury and was able to return to work (within

the statutory period of one year) on May 18, 1986.

Moreover, as previously explained, the Arbitrator con-

cluded that his separation was “the result of, or sub-

stantially related to, the compensable injury.” Finally, it

should be noted that the instant case closely parallels

the facts in a recent M.S.P.B. decision (Rischavy ».

U.S.P.S., 35 MSPR 528 [1978]) and the Arbitrator’s

interpretation of the law and regulations appears to be

consistent with the rational in this M.S.P.B. decision.

25a

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

UNITED STATES POSTAL SERVICE,

Plaintiff-A ppellee,

versus

AMERICAN PosTaAL WORKERS UNION, AFL-CIO,

Defendant-A ppellant.

Appeal from the United States District Court

for the Northern District of Texas

ON PETITION FOR REHEARING

(February 26, 1991)

Before SMITH and WIENER, Circuit Judges.*

PER CURIAM:

IT IS ORDERED that the petition for rehearing filed

in the above entitled and numbered cause be and the

same is hereby DENIED.

ENTERED FOR THE COURT:

/s/ [Illegible]

United States Circuit Judge

* Judge Thomas Gibbs Gee was a member of the original panel

but resigned from the Court on February 1, 1991 and, therefore

did not participate in this decision. This matter is being decided

by quorum. 28 U.S.C. 46(d).

26a

STATUTES AND REGULATIONS

LABOR MANAGEMENT RELATIONS ACT

$185. Suits by and against labor organizations

(a) Venue, amount, and citizenship

Suits for violation of contracts between an employer

and a labor organization representing employees in

an industry affecting commerce as defined in this

chapter, or between any such labor organizations,

may be brought in any district court of the United

States having jurisdiction of the parties, without

respect to the amount in controversy or without re-

gard to the citizenship of the parties.

* * * *

POSTAL REORGANIZATION ACT

§ 1208. Suits

+ . * aa

(b) Suits for violation of contracts between the

Postal Service and a labor organization represent-

ing Postal Service employees, or between any such

labor organizations, may be brought in any district

court of the United States having jurisdiction of the

parties, without respect to the amount in contro-

versy.

27a

CBA PROVISIONS

NATIONAL AGREEMENT

* * * *

ARTICLE 12

PRINCIPLES OF SENIORITY, POSTING

AND REASSIGNMENTS

Section 1. Probationary Period

A. The probationary period for a new employee shall

be ninety (90) calendar days. The Employer shall have

the right to separate from its employ any probationary

employee at any time during the probationary period

and these probationary employees shall not be permitted

access to the grievance procedure in relation thereto. If

the Employer intends to separate an employee during the

probationary period for scheme failure, the employee

shall be given at least seven (7) days advance notice of

such intent to separate the employee. If the employee

qualifies on the scheme within the notice period, the em-

ployee will not be separated for prior scheme failure.

* * om *

ARTICLE 15

GRIEVANCE-ARBITRATION PROCEDURE

Section 1. Definition

A grievance is defined as a dispute, difference, disagree-

ment or complaint between the parties related to wages,

hours, and conditions of employment. A grievance shall

include, but is not limited to, the complaint of an em-

ployee or of the Unions which involves the interpretation,

application of, or compliance with the provisions of this

28a

Agreement or any local Memorandum of Understanding

not in conflict with this Agreement.

Section 4. Arbitration

A. General Provisions

* * * .

(6) All decisions of an arbitrator will be final and bind-

ing. All decisions of arbitrators shall be limited to the

terms and provisions of this Agreement, and in no event

may the terms and provisions of this Agreement be al-

tered, amended, or modified by an arbitrator. Unless

otherwise provided in this Article, all costs, fees, and

expenses charged by an arbitrator will be shared equally

by the parties.

(9) In any arbitration proceeding in which a Union

feels that its interests may be affected, it shall be en-

titled to intervene and participate in such arbitration

proceeding, but it shall be required to share the cost of

such arbitration equally with any or all other Union

parties to such proceeding. Any dispute as to arbitrabil-

ity may be submitted to the arbitrator and be determined

by such arbitrator. The arbitrator’s determination shall

be final and binding.

* * + o

ARTICLE 19

HANDBOOKS AND MANUALS

Those parts of all handbooks, manuals and published reg-

ulations of the Postal Service, that directly relate to

wages, hours or working conditions, as they apply to

employees covered by this Agreement, shall contain noth-

ing that conflicts with this Agreement, and shall be con-

tinued in effect except that the Employer shall have the

right to make changes that are not inconsistent with this

29a

Agreement and that are fair, reasonable, and equitable.

This includes, but is not limited to, the Postal Service

Manual and the F-21, Timekeeper’s Instructions.

* * * *

ARTICLE 21

BENEFIT PLANS

* * * *

Section 4. Injury Compensation

Employees covered by this Agreement shall be covered

by subchapter I of Chapter 81 of Title 5, and any amend-

ments thereto, relating to compensation for work in-

juries. The Employer will promulgate appropriate regu-

lations which comply with applicable regulations of the

Office of Workers’ Compensation Programs and any

amendments thereto.

* y * .

EMPLOYEE AND LABOR RELATIONS MANUAL

545.91 General. An employee who suffers job-related in-

jury or illness for which OWCP compensation is being

received should be granted LWOP/IOD for an initial

period of up to 1 year from the date OWCP compensa-

tion began.

545.92 Extensions. If the employee is unable to return

to work at the end of the 1 year period on LWOP/IOD,

the LWOP/IOD may be extended for successive addi-

tional periods of up to 6 months. Extensions are granted

only if it appears that the employee is likely to return

to work within the period of the extension.

545.93 Separations. If it is not likely that the employee

will be able to return to work at the end of 1 year of

LWOP/IOD or during the authorized extended period,

the employee may be separated. Before any employee

30a

who is on the rolls of the OWCP can be separated, the

postal official must submit a comprehensive report to the

Director, Office of Safety & Health, at Headquarters with

appropriate recommendations and all the documentation

needed to support the recommendations. The employee

must be retained on the rolls of the Postal Service pend-

ing a decision.

* * * *

546.121 Obligation. When an employee fully overcomes

the injury or disability within 1 year after the commence-

ment of compensation payments from OWCP, or after

compensable disability recurs, the USPS must give an

employee the right to resume employment in the former

or equivalent position.

546.122 Rights and Benefits. Upon reemployment, all

rights and benefits which an employee would have had or

acquired in the former position had there been no injury

or disability, must be restored.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.