Appeal of
MELVIN R. KESSLER
Under Contract No. HCR 25871
PSBCA No. 2820, 2972
APPEARANCE FOR APPELLANT
Melvin R. Kessler
APPEARANCE FOR RESPONDENT
Deborah A. Davis, Esq.
OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION
Appellant has made a timely request
for reconsideration of the Board's Opinion dated February 24, 1992, in which the
Board denied Appellant's appeals contesting the termination for convenience of
his highway transportation contract and the denial of costs claimed for attorney
fees, lost wages, and unsafe working conditions. Melvin R. Kessler, PSBCA Nos.
2820, 2972, ___BCA ¶ ___ (slip
opinion
Appellant in his reconsideration motion asserts that the Board erred and demonstrated bias in accepting certain statements made at the hearing as bases of factual findings. Specifically, Appellant alleges that a witness called by Respondent at the hearing is an unstable person with a poor reputation. Appellant also challenges Finding No. 9 in the Board's opinion, alleging that during the negotiations he was never personally advised that a reduction in the contract amount was a secondary consideration and would have been dropped had Appellant agreed to the proposed reduction in hours. Appellant also claims that although the reason given for the termination was his refusal to agree to a service change, at the trial secondary reasons concerning his conduct were raised. Appellant contends that he was unfairly prejudiced as a result of not having adequate notice of the reasons for the termination. Appellant requests that another hearing be convened so that he can "face my accusers prepared."
Respondent has opposed the motion contending Appellant has not alleged any new or previously unavailable evidence or raised issues which the Board previously failed to consider. Respondent also argues the record contradicts Appellant's contention that he was unaware that cost savings was a secondary consideration. Respondent takes issue with Appellant's claim that he did not have an opportunity to present his version of the facts, stating that he was represented by counsel at the hearing and that the record completely outlined the issues before the Board.
We have considered the issues raised in Appellant's request for reconsideration and find them to be without merit.
The record indicates that Appellant
was fully apprised in advance of the hearing of the reasons for the termination
and of Respondent's intentions to adduce evidence from two of the Postmasters on
his route concerning Appellant's conduct.
See Respondent's Response to Board's Order dated
Appellant's attack on the credibility of a witness who testified during the hearing is unavailing. Appellant's allegations concerning this witness are not supported by evidence in the record, and, in any event, there was corroboration of her testimony in a number of respects. It was not erroneous for the Contracting Officer, in taking the termination action, to have, among other things, considered or relied on statements made by the witness. Further, Appellant's posthearing allegations concerning her character and reputation are not a sufficient basis for the Board to discredit the evidence given by the witness.
As Respondent contends, the record does not support Appellant's claim that he was unaware that Respondent viewed cost savings as a secondary consideration during the negotiations concerning a schedule change. For Appellant to claim that had he know of Respondent's position at the time, an agreement on the reduction of hours in the contract would have been reached, and termination made unnecessary, is merely speculative hindsight not supported by the evidence. Even had such information not been disclosed to Appellant, it would not affect the Board's decision. The short of it is the parties were unable to negotiate a mutually acceptable schedule change and the contract was terminated. Failure to have fully communicated all aspects of Respondent's negotiating position to Appellant would not provide grounds for nullifying the termination.
Having considered the matters
raised in Appellant's request for reconsideration, the Board affirms its opinion
dated
James E. Lemert
Administrative Judge
Board Member
I concur
James A. Cohen
Administrative Judge
Chairman
I concur
James D. Finn, Jr.
Administrative Judge
Vice Chairman