September 2, 2003

In the Matter of the Petition by

SONJA PARSON

1006 13th Street, SE

at

Washington, DC 20003-4108

P.S. Docket No. DCA 03-315

APPEARANCE FOR PETITIONER:

Douglas E. Sapp

P.O. Box 2670

Merrifield, VA 22116-2670

APPEARANCE FOR RESPONDENT:

Kevin M. Kozlowski

Labor Relations Specialist

United States Postal Service

8409 Lee Highway

Merrifield, VA 22081-9401

DECISION ON MOTION TO DISMISS

            After the Order of August 26, 2003, was issued, this office received the Motion to Dismiss referred to in Petitioner’s response to the Order of August 5, 2003.

            In the motion, Respondent argues primarily that the alleged debt at issue here has already been the subject of an arbitration proceeding and that the arbitrator ruled against Petitioner.  Accordingly, Respondent argues that under §462.34 of the Employee and Labor Relations Manual (ELM), Petitioner is not entitled to a Debt Collection Act hearing on the same alleged debt.

            Petitioner argues that she is entitled to a Debt Collection Act hearing on several grounds.  Petitioner contends that she was unable to attend the hearing before the arbitrator and, therefore, has not had her “day in court.”  In addition, Petitioner argues that the arbitration hearing did not address the issue of whether the Postal Service actually suffered a loss, but only addressed the issue of whether Petitioner exercised reasonable care.

            This office has often held, as argued by Respondent, that under the provisions of the ELM an employee has the option of contesting an alleged debt either through the grievance procedure or the Debt Collection Act hearing procedure set out in ELM §452.3, but not both.  ELM §462.34 states that

“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 that arbitrator makes a ruling of nonarbitrability … or the Postal Service and the union negotiate a partial settlement of the grievance ….”

In this instance, Petitioner elected to proceed via the grievance procedure, a hearing was held by the arbitrator, and the arbitrator issued an “Award” document holding that Petitioner was liable.[1]  Having availed herself of the grievance procedure, Petitioner may not now seek to utilize the provisions of ELM §452.3 to again challenge the alleged debt.[2]

            Under these circumstances, whether Respondent issued a Notice of Involuntary Administrative Salary Offsets to Petitioner is irrelevant.  Therefore, the Order of August 26, 2003, is vacated, Respondent’s motion is granted, and the Petition is dismissed.

                                                                                                David I. Brochstein

                                                                                                Administrative Judge

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[1]   The arbitrator’s Award referred to a shortage in the amount of $831.67, while the letter of demand that accompanied the Petition referred a shortage of $861.37.  Given that both documents refer to the shortage as having occurred on November 30, 1996, there is no doubt that there was simply a typographical error in one of the documents and that the arbitrator was, in fact, considering the same alleged debt that is at issue here.

[2]   In the Award, the arbitrator specifically found that there was a shortage in Petitioner’s accountability on November 30, 1996.  He further noted that, according to Petitioner’s representative, as recently as the day before the hearing Petitioner had been notified of the hearing and had agreed to attend.