February 14, 2003

 

In the Matter of the Petition by

 

TONI L. GAVIN

13471 Princedale Drive

 

at

 

Woodbridge, VA 22193-3814

 

P.S. Docket No. DCA 03-11

 

APPEARANCE FOR PETITIONER:

Robert D. Burnett

5834C N. Kings Highway

Alexandria, VA  22303-2136

 

APPEARANCE FOR RESPONDENT:

Amanda R. Gill

Labor Relations Specialist

United States Postal Service

8409 Lee Highway

Merrifield, VA  22081-9401

 

DECISION ON MOTION TO DISMISS

            Petitioner, Toni L. Gavin, filed a Petition pursuant to the Debt Collection Act seeking relief from an alleged debt to her employer, the United States Postal Service.  In lieu of its Answer to the Petition, Respondent filed a Motion to Dismiss, arguing that there was no jurisdiction to hear this Petition because an arbitrator had issued a ruling on a grievance involving the same debt that is the subject of this Petition.  Petitioner was given an opportunity to reply to the motion but did not do so as of the date of this Decision.  The following findings of fact and decision are based on the documents attached to the Petition and to Respondent's Motion.

FINDINGS OF FACT

            1.  Petitioner was a window clerk responsible for stock and cash.  After a quarterly audit of Petitioner’s account, conducted on October 21, 1994, it was determined that the account was short some $1,205.50.  Respondent immediately issued a letter of demand to Petitioner for recoupment of this shortage.  (Decision, Arbitration Case No. K90C-4K-C-95078897, October 4, 2002, Attachment to Respondent's Motion (“Arbitration Decis­ion”), p. 2).

            2.  Upon her receipt of the letter of demand, Petitioner's Union filed a grievance on her behalf on February 1, 1995.  Petitioner’s request for relief was denied at each step of the grievance process, resulting in appeal of the matter to arbitration on November 23, 1999.  (Arbitration Decision, pp. 2-3.)

            3.  A hearing before an arbitrator ultimately was held at Merrifield, Virginia on September 5, 2002.  On October 4, 2002, Arbitrator Lawrence R. Loeb issued his Decision denying the grievance and holding that Petitioner was responsible for the loss.  (Arbitra­tion Decision, pp. 1, 13.)  

            4.  On December 6, 2002, Petitioner received the Notice of Involuntary Administrative Salary Offsets Under the Debt Collection Act (“Notice”) that the U. S. Postal Service had issued on November 7, 2002.  By this Notice, Petitioner was informed that $1,205.50 would be withheld from her pay for an alleged shortage in an account for which she was responsible “based on a pre-arbitration hearing”.  (Attachment to Petition for Hearing.) 

            5.  The instant Petition for Hearing Under the Debt Collection Act (“Petition”) was filed on January 13, 2003.  Petitioner therein asked for an oral hearing.  She raised only issues relating to her alleged responsibility for the loss, but raised no issue with respect to the propriety or effect of the arbitration proceedings.

            6.  Respondent filed a Motion to Dismiss the Petition on January 21, 2003, on the basis that the matter previously had been adjudicated through the Grievance-Arbitration Procedure.  Submitted with Respondent’s Motion was a copy of the Arbitration Decision. 

            7.  On January 23, 2003, Petitioner was ordered to respond to the Motion to Dismiss.  Petitioner’s Representative, Robert D. Burnett, entered an appearance and requested until February 7, 2003, to respond, but no such response was filed by either Petitioner or her representative. 

DECISION

            Absent a response by Petitioner to Respondent’s Motion to Dismiss, this Decision is issued based upon the Petition and the Motion and the documents attached thereto.

            Section 462.34 of the Postal Service Employee and Labor Relations Manual (ELM) limits access of bargaining unit employees to the Postal Service’s Debt Collec­­tion Act procedures as follows:

“If an arbitrator opens a hearing on the merits of a grievance concerning any letter of demand, the statutory offset procedures in 452.3 do not apply thereafter, unless the arbitrator makes a ruling of nonarbitrability (see 462.22d) or the Postal Service and the union negotiate a partial settlement of the grievance.”

 

The procedures in ELM section 452.3 give employees a choice of initially con­test­ing an alleged debt through either the grievance procedures or the Debt Collection Act hearing procedures before the Postal Service collects an alleged debt by involuntary salary offset.  Pursuant to these provisions of the ELM, if grievance procedures are elected and the matter proceeds to an arbitration hearing and decision, an employee cannot then elect procedures under the Debt Collection Act and have a second hearing.

            An arbitration hearing was scheduled regarding the alleged debt and the parties were notified and appeared at the hearing.  The arbitrator then issued his decision on the merits, affirming the Postal Service’s deter­mi­nation that Petitioner was responsible for the loss.  

            The Petition pursuant to the Debt Collection Act apparently was filed in response to the Notice of Involuntary Administrative Salary Offsets issued on November 7, 2002.  The Petition raised no issues except those relating to her responsibility for the loss and was filed with no attachments except a copy of said Notice.

            Because Petitioner elected initially to use the grievance procedures and the arbitrator decided the grievance on the merits, the exceptions in ELM § 462.34, quoted above, do not apply.  Issuance of the Notice of Involuntary Adminis­trative Salary Offsets by Respondent under these circumstances was not required and does not entitle Petitioner to a hearing under the Debt Collection Act. 

            Respondent's Motion is granted.  The Petition is dismissed.

 

 

                                                                                    Jon N. Kulish

                                                                                    Administrative Judge