PITTSBURGH METRO AREA POSTAL WORKERS UNION, AFL-CIO et al v. UNITED STATES POSTAL SERVICE
Filing
34
OPINION. Signed by Judge Mark R. Hornak on 4/2/13. (bdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
PITTSBURGH METRO AREA POSTAL
WORKERS UNION, AFL-CIO, a LABOR
ORGANIZA TION, and AMERICAN
POSTAL WORKERS' UNION, AFL-CIO, a
LABOR ORGANIZATION,
Plaintiffs,
v.
UNITED STATES POSTAL SERVICE,
Defendant.
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Civil Action No. 2:12-cv-00811
Judge Mark R. Hornak
OPINION
Mark R. Hornak, United States District Judge
This case turns a page in the latest chapter in a decades-long litigation saga between the
American Postal Workers' Union ("APWU") and the United States Postal Service ("USPS")
regarding the payments to be afforded once-terminated USPS employees who have benefitted
from arbitration awards of reinstatement and full back pay. The Pittsburgh Metro Area Postal
Workers' Union and the APWU (collectively, "Union") brought this case on behalf of two
employees, seeking enforcement of their arbitration awards. Pending before the Court are the
USPS's Motion to Dismiss Plaintiffs' Amended Complaint for lack of subject matter
jurisdiction, ECF No. 11, and the Union's Motion for Summary Judgment, ECF No. 23. The
Court heard oral argument on November 20, 2012, and requested supplemental briefing. The
Court having considered the parties' motions and briefs in support and in opposition, ECF Nos.
12, 15, 16,24,25,28,29, and 32, those motions are ripe for disposition.
I. FACTS AND BACKGROUND
The major relevant facts are not in dispute. The USPS and the APWU are parties to a
national collective bargaining agreement, at present effective from November 21, 2010 to May
20, 2015 ("CBA"). PI.'s Concise Stmt. Mat. Facts, ECF No. 25
~
~
7; Am. CompI., ECF No.8,
7. Plaintiff Pittsburgh Metro Area Postal Workers' Union is a local affiliate of the APWU, and
is authorized by the APWU to bring the present action. Am. Compi.
~~
8, 18. Pursuant to
Article 15 of the CBA, the parties have agreed to resolve through their contractual grievance
procedure any "dispute, difference, disagreement or complaint between the parties related to
wages, hours, and conditions of employment," including "the interpretation, application of, or
compliance with the provisions of this Agreement." ECF No.
12~1
Art. 15.1. Section 5 of the
CBA's grievance procedure provides for arbitration of grievances which have not been resolved
by the parties. Am. Compi.
~
10. At issue here is how that arbitration process played out with
regards to two employees.
The first employee, David Kello, was discharged by the USPS on November 24, 2010.
ECF No.
8~3
at 3. The Union challenged this action on his behalf, and an arbitration hearing was
held on February 23,2011. Id. at 2. The issues before the arbitrator were "Did the Postal Service
have just cause to issue the Notice of Removal? If not, what shall be the remedy?" Id. Arbitrator
Jacquelin F. Drucker ruled that the USPS did not demonstrate that it had just cause for the
removal, and that Mr. Kello was "to be returned to duty with full back pay, seniority, and
benefits." Id. at 10. The issue of mitigation of damages was not raised at the arbitration hearing.
ECF No. 25
~
20; see generally ECF No.
8~3.
The second employee, Mary Brosovich, was discharged by the USPS on May 31, 2011.
ECF No.
8~4
at 7. The Union challenged this action on her behalf, and an arbitration hearing
2
was held on January 20, 2012. Id. at 1. The issues before the arbitrator were "whether or not the
Postal Service had just cause to remove the Grievant, and if not, what shall the remedy be[?]" Id.
at 2. Arbitrator Kathleen Jones Spilker ruled that the USPS did not demonstrate that it had just
cause for the removal, and that the USPS was "directed to reinstate [Ms. Brosovich] and to make
her whole for lost wages and benefits, less the time of the suspension." Id. at 11. The issue of
mitigation of damages was not raised at the arbitration hearing. ECF No. 25
~
23; see generally
ECFNo.8-4.
The arbitration awards, however, were not the end of the story for either Mr. Kello or Ms.
Brosovich. Instead of compensating either employee "full back pay" for the entire time between
their discharge and reinstatement, the USPS paid Ms. Brosovich for forty-five (45) days, and
also paid Mr. Kello for less than the full time of his absence. ECF No. 25
~~
25, 26; ECF No. 8
4; Am. CompI. ~~ 16, 23.
According to the USPS, this action was proper because it was in accordance with its own
Employee and Labor Relations Manual ("ELM"). The parties agree that the ELM is referenced
by the CBA at its Article 19, which states that "Those parts of ... manuals ... of the Postal
Service, that directly relate to wages, hours or working conditions, as they apply to employees
covered by this Agreement, shall contain nothing that conflicts with this Agreement." ECF No.
25 ~ 10; ECF No. 12-1 at 122: Section 436.2 of the ELM states as a "[l]imitation[] to corrective
entitlement" that "[b]ack pay is allowed, unless otherwise specified in the appropriate award or
decision, provided the employee has made reasonable efforts to obtain other employment. ...
[employees] are allowed 45 days before they must make reasonable efforts to obtain other
employment." ECF No. 12-4 at 5.
I Thus, to the extent the CBA and the ELM would be in conflict, the CBA provides that it, and not the ELM, is the
trump card.
3
Additionally, the USPS notes that the Notices of Removal sent to Mr. Kello and Ms.
Brosovich stated that "[i]f this action is overturned on appeal, back pay will be allowed ...
ONL Y IF YOU
HAVE
MADE REASONABLE EFFORTS
TO OBTAIN OTHER
EMPLOYMENT DURING THE RELEVANT NON-WORK PERIOD." ECF No. 12-2 at 3
(capitalization in original). For this reason, according to the USPS, because Mr. Kello and Ms.
Brosovich did not demonstrate evidence of reasonable efforts to obtain other employment, it was
entirely appropriate for the USPS to only pay them back pay following the arbitration awards for
45 days, rather than for the full period they were not working for the USPS due to their
discharge. See ECF No. 8-5.
The USPS has also set forth a number of facts relating to a national dispute process
between the APWU and the USPS that occurred in 2000-2001 ("National Dispute"), which the
USPS has argued definitively conferred on it the right to apply the ELM after an arbitration
award has been rendered. The facts that relate to that National Dispute are discussed in infra
Part IV.B.2.
Plaintiffs brought suit in this Court on June 14, 2012 under § 301 of the Labor
Management Relations Act, as amended, 29 U.S.C. § 185, and under the Postal Reorganization
Act, 39 U.S.C. §§ 101, et seq. (§§ 409 and § 1208(b) in particular), asking this Court to enforce
the arbitrators' awards by ordering the USPS to give Mr. Kello and Ms. Brosovich the "full back
pay" to which they are entitled. The USPS moved to dismiss the Union's suit under Fed. R. Civ.
P. 12(b)(1), asserting that this Court lacks subject matter jurisdiction over the dispute, because
the dispute may only be decided by an arbitrator. ECF No. 12. The Court held oral argument on
that motion on November 20,2012, after placing the parties on notice that it might consider the
motion under either Rule 12(b)( 1) or Rule 12(b)(6). ECF Order dated Oct. 31, 2012. At the end
4
of the hearing, the Court ordered the parties to submit supplemental briefing on the issue of res
judicata/preclusion by this Court's decision in Pittsburgh Metro Area Postal Workers' Union v.
USPS, No. 95-1706, 1997 U.S. Dist. LEXIS 12582 (W.D. Pa. May 12, 1997) ("Pittsburgh Metro
f'). ECF Order dated Nov. 20, 2012. 2 Plaintiffs then filed a Motion for Summary Judgment,
ECF No. 23. All motions are fully briefed, and the Court now turns to the parties' arguments.
II. SUBJECT MATTER JURISDICTION
As a threshold matter, USPS asserts that this Court lacks subject matter jurisdiction.
Under § 15(b) of the Postal Reorganization Act, 39 U.S.c. § 1208(b), this Court has jurisdiction
over "[ s]uits for violation of contracts between the Postal Service and a labor organization
representing Postal employees." Section 15(b) has been interpreted uniformly with the nearlyidentical § 301 of the Labor Management Relations Act, 29 U.S.c. § 185(a), which confers on
federal district courts the jurisdiction to enforce arbitration awards that are not inconsistent with
the terms of a collective bargaining agreement between parties, and to direct those parties to
undertake an arbitration process they have contracted to follow. See Union Switch & Signal Div.
Am. Std. Inc. v. United Elec., Radio & Mach. Workers ofAm., Local 610,900 F.2d 608,612 (3d
Cir. 1990); APWU of Los Angeles v. USPS, 861 F.2d 211, 215 (9th Cir. 1988);3 Podobnik v.
USPS, 409 F.3d 584, 586 n.l (3d Cir. 2005).
More specifically, when an arbitration award has already been entered, a Court may only
enforce it if it is a "final and binding award." Union Switch, 900 F.3d at 613. However, our
Court of Appeals has held that the requirement that an arbitration award be "final and binding"
2 The Court also asked the parties at oral argument to consider whether this case could or should have been filed as a
"related action" to Pittsburgh Metro I. Both parties in their briefing stated that it should not. See ECF No. 28 at 11
n.7.
For ease of reference, the "American Postal Workers Union, AFL-CIO" and the "United States Postal Service,"
when they appear in case citations, are abbreviated as "APWU" and "USPS," respectively.
3
5
before it can be enforced
the so-called "complete arbitration rule"
is not one that determines
this Court's subject matter jurisdiction over the matter. See id. at 612. The complete arbitration
rule "while a cardinal and salutary rule of judicial administration, it is not a limitation on a
district court's jurisdiction," which is conferred by Congress in § 15(b) and § 301. Id. Therefore,
while the ambiguity of the arbitrator's award vel non may be entirely relevant to determine
whether the Union has stated a claim for relief, it is not relevant to this Court's subject matter
jurisdiction, which has already been conferred by Congress. See Bensalem Park Maint., Ltd. v.
Metro. Reg'l Council ofCarpenters, CIV.A. 11-2233,2011 WL 2633154, at *4 (E.D. Pa. July 5,
2011) (applying Union Switch to hold subject matter jurisdiction proper before determining
arbitrability); Pittsburgh Metro Area Postal Workers' Union, AFL-CIO v. USPS, CIV.A. 07
00781,2008 WL 1775502, at *3-4 (W.D. Pa. Apr. 16,2008) ("Pittsburgh Metro If') (same); see
also Morrison v. Nat 'I Australia Bank Ltd., 130 S. Ct. 2869,2876-77 (2010) ("subject-matter
jurisdiction, by contrast, 'refers to a tribunal's power to hear a case.' It presents an issue quite
separate from the question whether the allegations the plaintiff makes entitle him to relief.")
(internal citations omitted).
Even so, the USPS argues that under the Steelworkers Trilogy of cases, this Court lacks
subject matter jurisdiction over the present dispute, and filed its motion to dismiss under Fed. R.
Civ. P. 12(b)(l). See Def.'s Mot. Dismiss at II nA.
The Steelworkers Trilogy is a line of
Supreme Court cases which established the principles for determining when a grievance is
arbitrable, in particular in the setting of a collective bargaining agreement.
See United
Steelworkers of Am. v. Am. Mfg. Co., 363 U.S. 564 (1960); United Steelworkers of Am. v.
Warrior & Gulf Navigation Co., 363 U.S. 574 (1960); United Steelworkers of Am. v. Enter.
Wheel & Car Corp., 363 U.S. 593 (1960). Together, these cases stand for "a strong national
6
policy favoring the resolution of disputes by arbitration," Union Switch, 900 F.2d at 615, and a
presumption that when an arbitration clause in a contract is present, a grievance is arbitrable
"unless it may be said with positive assurance that the arbitration clause is not susceptible of an
interpretation that covers the asserted dispute," United Steel, Paper & Forestry, Rubber, Mfg.,
Energy, Allied-Indus. & Servo Workers Local Union 943
V.
E.l DuPont de Nemours & Co., 338
F. App'x 209, 213 (3d Cir. 2009) (internal citation omitted); see also Rite Aid of Pa., Inc. v.
United Food & Commercial Workers Union, Local 1776, 595 F.3d 128, 139 (3d Cir. 2010)
(Ambro, J., dissenting) (discussing four principles of the Steelworkers Trilogy); Nat 'I Ass ,n of
Letter Carriers, AFL-CIO v. USPS, 272 F.3d 182, 185 (3d Cir. 2001) ("Letter Carriers").
The Court does not in any way doubt the continued the vitality of the policy embodied in
the Steelworkers Trilogy. The trouble with the USPS's argument, no matter vehemently made, is
that that policy, at least as applied to disputes over the meaning of an arbitration award that has
been entered, is not "jurisdictional" in its scope. It is instructive that the court in Union Switch
discussed the "strong national policy favoring arbitration" embodied in the Steelworkers Trilogy,
at the same time it upheld the propriety of subject matter jurisdiction. See 900 F .2d at 615; see
also Bensalem, 2011 WL 2633154, at *7 (discussing Steelworkers Trilogy, yet upholding subject
matter jurisdiction); Pittsburgh Metro II (citing Steelworkers Trilogy; same); Nationwide Ins.
Co. ofColumbus, Ohio v. Patterson, 953 F.2d 44, 45 n.l (3d Cir. 1991) (arbitrability does not go
to subject matter jurisdiction).
Therefore, while the precepts of the Steelworkers Trilogy undergird this Court's analysis
of the arbitrability of this dispute, they are not jurisdictional, at least as applied here. 4 USPS's
To be sure, the language used by the Third Circuit as to whether arbitrability goes to jurisdiction or to stating a
claim has not always been a font of clarity. See Nova CTI Caribbean V. Edwards, CIV.A. 03-5319,2004 WL 35759
(E.D. Pa. Jan. 8, 2004) (discussing confusion in applying Rule 12(b)(l) versus 12(b)(6) in arbitrability disputes).
The court in Union Switch noted that its prior opinions had at times referred to the complete arbitration rule "in
4
7
motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction must be denied, and
this Court has the power to decide the issues before it.
Just because the USPS may have relied on the incorrect provision of Fed. R. Civ. P. 12 in
its motion to dismiss, however, does not mean that the arguments contained therein may not be
considered at all. This Court may consider a Rule 12(b)(1) motion under Rule 12(b)(6) instead if
it is more properly viewed in that light, and the Court does so here. See Petruska v. Gannon
Univ., 462 F.3d 294,302 (3d Cir. 2006).5 Because the arguments asserted in the USPS's Motion
to Dismiss are in many ways the mirror image of those asserted in the Union's Motion for
Summary Judgment, those arguments will now be considered together, though each is subject to
its own standard of review.
III. STANDARD OF REVIEW
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a complaint must allege
"enough facts to state a claim for relief that is plausible on its face." Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). "The District Court must accept the complaint's well-
pleaded facts as true, but may disregard any legal conclusions." Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009». In short, a
jurisdictional terms," but disavowed those pronouncements as nonbinding dicta. 900 F.2d at 613-14. It is with that
observation in mind that the Court concludes that while the Third Circuit more recently in Trenton Metro. Area
Local of APWU v. USPS, 636 F.3d 45, 56 (3d Cir. 2011) referred once to a district court's enforcement of a
settlement agreement that resolved a dispute that would otherwise have been governed by an arbitration provision in
terms of "subject matter jurisdiction," the Circuit panel there did not intend sub silentio to disavow or overrule the
thoroughly-considered prior holding in Union Switch. See U.S. Ct. App. 3d Cir. Internal Operating Procedures, Ch.
9.1 (2010 ed.) (prior panel decisions may be overruled only by an en banc court). In fact, the use of "jurisdictional"
nomenclature in Union Switch was subjected to the crucible ofa spirited dissent at the panel level, 900 F.2d at 616
620, and thereafter en banc consideration was sought and denied, td. at 620-21. The extent to which Trenton's
statement applies beyond the judicial enforcement of the settlement agreements in play in Trenton to other
arbitrability disputes under § 15/§ 30 I need not be decided here the Court concludes that whatever the scope of
that pronouncement in that case (in which the parties had not gone to arbitration at all, 636 F.3d at 50-51), it does
not sweep away the holding of Union Switch, which is squarely on point here.
Indeed, it is for this reason that this Court put the parties on notice that it might be considering Defendant's Motion
under Rule 12(b)(6) instead of Rule 12(b)( I) before oral argument was held on the Motion.
5
8
motion to dismiss should be granted only if a party does not allege facts which could, if
established at trial, entitle him to relief. See Fowler, 578 F 3d at 211.
Summary judgment is proper "if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(a). "In considering a motion for summary judgment, a court must draw all reasonable
inferences from the underlying facts in the light most favorable to the non-moving party."
Emerson Radio Corp. v. Orion Sales, Inc., 253 F.3d 159, 162 (3d Cir. 2001).
IV. DISCUSSION
A. Enforcement of Arbitration Award
Perhaps most fundamentally, the parties contest whether the Union is asking this Court to
"interpret" or to "enforce" the arbitral awards at issue.
According to the USPS, this is an
"interpretive dispute" over the meaning of the term "full back pay," the resolution of which can,
may, and must be conducted by an arbitrator.
According to the Union, this is simply an
"enforcement action," and any counterarguments the USPS might now present as to the
enforceability of the arbitrator's award are strictly barred as having been waived.
As noted above, this Court has the authority to enforce awards issued by an arbitrator
when one party does not comply with the award. See Union Switch, 900 F.2d at 612. When a
court is considering an arbitration award, its first task is to examine whether the arbitrator's
decision exceeded his authority. Major League Umpires Ass 'n v. Am. League of Profl Baseball
Clubs, 357 FJd 272, 279 (3d Cir. 2004). Here, the parties by way of the CBA agreed to submit
to arbitration any "dispute, difference, disagreement or complaint between the parties related to
wages, hours, and conditions of employment," including "the interpretation, application of, or
compliance with the provisions of this Agreement." Art. 15.1,
9
No. 12-1 at 87. The parties
do not contest that both arbitrators in this case, in resolving a dispute regarding employees'
termination and awarding them back pay, acted within their authority.
Additionally, a court may only enforce an arbitration award in a case such as this if it is a
"final and binding award." Union Switch, 900 FJd at 613. 6 In so doing, the court may not re
evaluate the merits of the arbitrator's decision. Letter Carriers, 272 FJd at 185. However,
"when the remedy awarded by the arbitrators is ambiguous, a remand for clarification of the
intended meaning of an arbitration award is appropriate." Colonial Penn Ins. Co. v. Omaha
Indem. Co., 943 F.2d 327, 334 (3d Cir. 1991) (citing Mut. Fire, Marine & Inland Ins. Co. v.
Norad Reinsurance Co. Ltd, 868 F.2d 52, 58 (3d Cir. 1989». "[W]here all that remains in terms
of the remedy is a computation of the amount of damages, such outstanding issues are typically
described as 'ministerial' and, likewise, does not render the award non-final." Bensalem, 2011
WL 2633154, at *5. Thus, the primary question before this Court is whether the arbitrators'
awards here were ambiguous, and therefore, not final.
Arbitrator Drucker found that Mr. Kello was removed without just cause, and ordered the
USPS to reinstate him with "full back pay, seniority, and benefits." ECF No. 8-2 at 9-10.
Similarly, Arbitrator Spilker found that Ms. Brosovich was improperly removed, and ordered
that the USPS "reinstate [her] and make her whole for lost wages and benefits, less the time of
the suspension." ECF No. 8-4 at 11. The Union argues that "full back pay" and "make whole for
lost wages and benefits" are unambiguous awards that cannot now be second-guessed by this
Court.
The "final and binding" requirement is one that is both present under the CBA here, see Art. IS.S.A.6, ECF No.
12-1 at toO, as well as under the jurisprudence of this Circuit considering § 301 more generally, see Union Switch,
900 F.2d at 613 n.5. This is not unrelated to the policy embodied in the Steelworkers Trilogy that the Court must not
interject itself into the arbitration process the parties have agreed upon.
6
10
The USPS argues in return that the terms of ELM § 436.2 permit the USPS, in calculating
back pay after an arbitration award has been issued, to consider an employee's reasonable efforts
to seek alternative employment, and the dispute over its ability to do so renders the award
ambiguous. See ELM § 436.2, ECF No. 12-4 at 5 ("[b]ack pay is allowed, unless otherwise
specified in the appropriate award or decision, provided the employee has made reasonable
efforts to obtain other employment. ..."). The USPS also points to the fact that it notified the
employees in their Notices of Removal that they would be required to make reasonable efforts to
obtain other employment in order to recover back pay. See ECF No. 12-2 at 3.
Additionally, the USPS argues that applying the ELM after the issuance of an arbitration
award is proper because "a national dispute" between the APWU and the USPS sometime
around 2000-2001 incorporated this post-arbitration application of the ELM into the CBA itself;
that argument is further examined infra Part IV.B.2. For this reason, according to the USPS,
because Mr. Kello and Ms. Brosovich did not demonstrate evidence of reasonable efforts to
obtain other employment, it was appropriate to only pay them back pay for 45 days following the
arbitrator's award, rather than for the full time they were laid off. See ECF No. 8-5. Therefore,
according to the USPS, the dispute here is "whether the proper methodology was applied in
calculating the damages," a dispute which may only be resolved by the arbitrator. Def.'s Mot.
Dismiss at 13.
In considering these competing arguments, this Court hardly writes on a blank slate. No
fewer than six other federal district court judges (two of which sit in this Circuit) have
considered this identical issue between these very same parties. In each case, arbitrators issued
awards of "full back pay" to employees. In each case, the USPS attempted after the fact to have
that award reduced by reference to ELM § 436's mitigation provision, prompting the employees
11
to seek judicial enforcement of the award. 7 And in each case, the courts enforced the awards and
refused, over the USPS's objections, to resubmit them to arbitration. See, e.g., APWU,
Philadelphia, Pa. Area Local v. USPS, 222 F. Supp. 2d 675 (E.D. Pa. 2002) ("APWU
Philadelphia"); Pittsburgh Metro Area Postal Workers' Union v. USPS, No. 95-1706, 1997 U.S.
Dist. LEXIS 12582 (W.D. Pa. May 12, 1997) ("Pittsburgh Metro 1'), report and
recommendation adopted, 1997 U.S. Dist. LEXIS 15069 (W.D. Pa. June 18, 1997); APWU v.
USPS, No. 00-CV-817, slip op. (S.D. Cal. Aug. 8, 2000) ("APWU McManis"); APWU,
Brooklyn Local v. USPS, No. 88-C-1974, 1989 WL 35953 (E.D.N.Y. March 29,1989) ("APWU
Brooklyn"); Elwell v. USPS, C A 606-CV-1449-GRA, 2007 WL 1075130 (D.S.C. Apr. 6,2007)
("Elwell"); Coppage v. USPS, 119 F. Supp. 2d 1375 (M.D. Ga. 2000) ("Coppage"),
reconsideration denied, 129 F. Supp. 2d 1378 (M.D. Ga. 2001), rev'd on other grounds, 281
F.3d 1200 (lIth Cir. 2002).
This Court is not aware of a single judicial opinion holding
otherwise. Moreover, a number of courts considering different employers' attempts to impose a
mitigation requirement post-arbitration award have held the same and enforced the awards. See,
e.g., Int'l Union
0/ Bricklayers & Allied Cra/tworkers,
Local 5 v. Inter-State Tile & Mantel Co.,
Inc., 1:07-CV-1150, 2010 WL 2034695 (M.D. Pa. May 18,2010) ("Bricklayers"); Teamsters,
Local Union 330 v. Elgin Eby-Brown Co., 670 F. Supp. 1393, 1398 (N.D. Ill. 1987).
The essential reasons expressed in the various opinions are the same. 8 Many of the
opinions view the issue in terms of waiver, holding that because the USPS had not raised its
7 A central premise of the sanctity of the arbitration process recognized by the Steelworkers Trilogy is that
arbitration was to provide to employers, unions, and employees relatively fast, inexpensive, and certain resolutions
to workplace disputes. The USPS's serial approach to relitigation of the application of ELM § 436, which is based
on the USPS's seemingly perpetual desire to engage in follow-up arbitrations of back pay awards, runs precisely
counter to those principles.
The USPS counters that all of these cases are distinguishable, because a national dispute process circa 200 I
granted to the USPS the right to apply the ELM after an arbitration award, which never applied to the previous
cases. For the reasons further explained in infra Part IV.B, the Court does not find that the USPS has demonstrated
8
12
ELM-based mitigation of damages theory before the arbitrator below, it could not later do so
before a federal court. E.g. Elwell, 2007 WL 1075130, at *2 ("Because the Postal Service failed
to raise the issue of mitigation of damages in either of the first two arbitrations, the Postal
Service waived any right it had to pursue this mitigation defense."); see also Coppage, 119 F.
Supp. 2d at 1381; APWU Philadelphia, 222 F. Supp. 2d at 685. This Court agrees with the thrust
of that conclusion - that the USPS may not later inject a self-generated ambiguity or uncertainty
into an arbitration award where there is no reason to believe there was one to begin with, and
where it demonstrably bypassed the opportunity to raise and litigate it at the arbitration. 9 These
opinions also note that despite the USPS's assertions that it has been its practice to apply the
ELM § 436 after an arbitration award of back pay, "such a practice 'does not justify the Postal
Service's attempt to impede a court's enforcement of an arbitration award.'"
APWU
Philadelphia, 222 F. Supp. 2d at 685 (quoting APWU McManis, slip op. at 9). Finally, the cases
note that the USPS's position conf1icts with the CBA Article 15, which states that arbitration
awards shall be "final and binding": "[i]n essence, the Postal Service detennines whether the
individual should receive back pay after the arbitrator has already detennined the issue."
Pittsburgh Metro J, 1997 U.S. Dist. LEXIS 12582, at *29; accord APWU Philadelphia, 222 F.
Supp. 2d at 685; APWU Brooklyn, 1989 WL 35953, at *5.10 This Court agrees with the holdings
of these courts.
that this national dispute altered the parties' contractual relationship or obligations in any material way, and this
argument is unavailing.
9 This Court does not believe that it must decide here whether as a blanket rule, a party that fails to bring an
argument before an arbitrator always has irrevocably waived it for all time. What is clear is that the USPS had the
opportunity to address the application of the ELM at these arbitrations, and did not do so. Given the long line of
cases rejecting the USPS's efforts to repeatedly get two bites at the arbitration apple, the USPS was plainly on notice
that it needed to do so here.
10 To this end, some courts correctly observe that the ELM itself is silent on when it is to be applied, and thus its
terms do not themselves dictate a contrary result. See Pittsburgh Metro 1, 1997 U.S. Dist. LEXIS 12582, at *29.
13
This Court adds to the dialogue that in its estimation, remand here is improper because
the dispute here is not over an ambiguous "method of calculation"
it is a unilateral attempt by
the USPS to undermine an award that the USPS may not find palatable, but is nonetheless "final
and binding" in any sense of the phrase. It is for this reason that the cases cited by USPS are not
contrary to this Court's conclusion. In Pittsburgh Metro Area Postal Workers' Union, AFL-C10
V.
USPS, CIV.A. 07-00781, 2008 WL 1775502 (W.D. Pa. Apr. 16, 2008) ("Pittsburgh Metro
1/'), an arbitrator rendered a decision that required USPS to make payment to certain workers for
a certain number of hours worked at an hourly rate that could be later agreed upon: "[if the
parties wish, they may substitute 'at the level 5, step 0 rate' or establish an equivalent average
dollar amount applicable over that time period." 1d at *2.
The arbitrator ruled that if
"interpretive questions [as to calculating the award] remain, I retain jurisdiction over the remedy
so as to resolve any questions or disputes." 1d The court first found that the award could not be
enforced - because "part of said award require [d] the parties to come to an agreement as to the
rate of pay," it was not "final and binding." 1d at *8. The court also concluded that remand to
the arbitrator was appropriate because another part of the award was sufficiently "ambiguous," as
the arbitrator's decision contained statements that conflicted as to what group of people could
properly receive compensation under the award. 1d Similarly, in Suarez v. USPS, 178 F. Supp.
2d 69, 72 (D.P.R. 2001), affd, 75 F. App'x 790 (lst Cif. 2003), the district court (and the First
Circuit) refused to consider a dispute over an arbitration award of "full back pay," where Suarez
claimed that the USPS underpaid him by "misca1cu1at[ing] the amount of back pay by relying on
the hours of an 'atypical' USPS employee." 1d at 73. 1l
11 It is interesting that, for whatever reason, the USPS did not attempt to offset Mr. Suarez's interim earnings from
"full back pay" by application of ELM § 436, as it has here and elsewhere.
14
The awards at issue in Pittsburgh Metro II and Suarez are wholly different in kind from
those here. They involved disputes over the proper identity of the recipient of an award, the
proper rate at which the recipients should be awarded, and the proper number of hours to be
considered in "back pay." Those issues can indeed be considered to be collateral disputes that
arise out of ambiguities in an arbitration award - or collateral disputes as to the calculation of an
award. But here, there is no dispute as to rates, hours, or individuals to be considered - the only
issue is the USPS's desire to diminish "full back pay" after the fact by applying a mitigation rule
nowhere referenced in the arbitration award. The terms of the awards rendered here, "full back
pay, seniority, and benefits" and "make her whole for lost wages and benefits, less the time of
the suspension" carry no ambiguity as to their completeness. 12 The dispute self-generated by
USPS here cannot properly be considered a difference as to "calculation" or "interpretation," but
rather is a naked attempt to undermine that which has already been finally determined. l3
This conclusion is supported by the Bricklayers decision, in which the court also refused
to allow the employer to deduct from a "make-whole" arbitration award an amount related to the
employee's mitigation of damages. 2010 WL 2034695. The court noted that while a dispute
over the hourly rates to be awarded might have created an "ambiguity with respect to the method
of calculating the amounts which [the employer] must contribute," id. at *1 (citing Pittsburgh
12 The Court is sensitive to the fact that what is "ambiguous" and what is not can often lie in the eye of the beholder.
As Justice Brennan has cautioned in the context of statutory interpretation, "as every attorney knows, any statutory
provision can be made ambiguous through a sufficiently assiduous application of legal discrimination." Babbitt v,
United Farm Workers Nat" Union, 442 U.S. 289, 315-16 (1979) (Brennan, J., concurring in part and dissenting in
part). In considering what makes an "ambiguity," the Pittsburgh Metro II court noted that "[a]n ambiguity
warranting remand exists where an award is subject to at least two interpretations, or where an award fails to take
into account circumstances that arise after it has been made. Moreover, remand is appropriate where the court does
not know what it is being asked to enforce." 2008 WL 1775502, at * 11. This Court concludes that that threshold for
ambiguity is not met in the arbitral awards at issue here.
13 Nor does the fact that the USPS's Notices of Removal to discharged employees suggest that even an arbitral
award of back pay will only be allowed if the employee has made reasonable efforts to obtain other employment
alter the analysis in any way. Just because the USPS suggested in a letter to Mr. KelIo and Ms. Brosovich that it had
the right to apply the ELM after an arbitration decision was rendered does not make it so, and does not render the
arbitration award any more ambiguous based on a unilateral statement made outside the context of the CBA.
15
Metro 11, 2008 WL 1775502), the "mitigation of damages defense" did not constitute such an
ambiguity. Id.
Here too, the USPS is not permitted to inject an ambiguity into the arbitration
award that does not exist in the award itself.14
Because Plaintiffs have adequately stated a claim for relief which this Court has the
power to grant, namely enforcement of an arbitration award, and the undisputed record compels
the grant of that relief, Defendant's Motion to Dismiss, construed as a 12(b)(6) motion, must be
denied. 15
B. Collateral Estoppel
The Union further argues that it should prevail not only because the six other district
court opinions considering this issue are correct in their analyses, and so this Court should rule in
conformity with them, but also because the holding of at least one of them has preclusive effect
on this case, and this Court must act in conformity with it. See Pittsburgh Metro Area Postal
14 The USPS offers no substantive justification for its not raising its ELM-based mitigation argument before the
arbitrator in the first instance. It can't be because it does not want an arbitrator to decide that issue at all, since it is
perfectly willing to let a second arbitrator consider it after the fact. The necessary consequence of the USPS's
approach is the multiplication of arbitration proceedings (and their attendant costs in time and money) for no
apparent reason. This approach runs counter to the principles embodied in the Steelworkers Trilogy the fast,
inexpensive, certain and final disposition of workplace disputes.
15 "In deciding a Rule 12(b)(6) motion, a court must consider only the complaint, exhibits attached to the complaint,
matters of public record, as well as undisputedly authentic documents if the complainant's claims are based upon
these documents." Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010). In deciding Defendant's Motion to
Dismiss, the Court has considered Plaintiffs Amended Complaint and the documents attached thereto.
Additionally, of the exhibits attached to Defendant's motion, the CBA, ECF No. 12-1, is integral to Plaintiffs' claim.
The Notices of Removal sent to Mr. Kello and Ms. Brosovich, ECF Nos. 12-2, 12-3, are also integral to Plaintiffs'
claim and explicitly referred to in the Amended Complaint, see ECF No.8';'; 11,20. The ELM itself, ECF No. 12-4,
available at http://about.usps.com/manuals/elmlhtml/ is a matter of public record, and no party has ever disputed its
authenticity. See Gross v. Stryker Corp" 858 F. Supp. 2d 466, 482 (W.D. Pa. 2012) ("Summary" on FDA website
public record); Pension Ben. Guar, Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1197 (3d Cir. 1993). The
Court does not, and need not, consider the Back Pay Reports, ECF Nos. 12-5, 12-6, especially because the parties
agree that Mr. Kello and Ms. Brosovich were not awarded "full back pay," but a reduced amount of back pay.
Therefore, the documents that have been considered allow this Court to review Defendant's motion under the
12(b)(6) standard. The Court also notes that the arguments contained in Plaintiff's Motion for Summary Judgment
are in many ways the mirror image of Defendant's Motion to Dismiss, and therefore Defendant's rights are in no
way prejudiced by this determination as it has had an adequate opportunity to advance any evidence in its favor that
it deems necessary.
16
Workers' Union v. USPS, No. 95-1706, 1997 U.S. Dist. LEXIS 12582 (W.D. Pa. May 12, 1997)
("Pittsburgh Metro 1'). This Court agrees.
The rule of collateral estoppel, or issue preclusion, "derives from the simple principle that
later courts should honor the first actual decision of a matter that has been actually litigated."
Burlington N. R. Co. v. Hyundai Merch. Marine Co., Ltd., 63 F.3d 1227, 1231 (3d Cir. 1995)
(internal marks and citation omitted). 16 The following four elements are required for the doctrine
to apply: "(1) the identical issue was previously adjudicated; (2) the issue was actually litigated;
(3) the previous determination was necessary to the decision; and (4) the party being precluded
from relitigating the issue was fully represented in the prior action." Howard Hess Dental Labs.
Inc. v. Dentsply Int ,/, Inc., 602 F.3d 237, 247-48 (3d Cir. 2010) (internal quotation omitted).17
This general rule is subject to a number of equitable exceptions, which vary based on how
estoppel is to be applied.
1. Identity o(Jssues
The USPS only asserts that the first element, identity of issues, is not met. 18 The USPS
has not asserted that the issue was not actually litigated in Pittsburgh Metro I, that it was not
necessary to the court's decision, and that the USPS was fully represented in the prior action. By
way of background, in Pittsburgh Metro 1, the identical parties to those here litigated before
16 The Court specifically requested that the parties file supplemental briefing "regarding the potential res
judicata/preclusive effect of' Pittsburgh Metro 1. ECF Order dated Nov. 20, 2012. The term "res judicata" can
encompass both claim preclusion and issue preclusion/collateral estoppel. See United States v. 5 Unlabeled Boxes,
572 F.3d 169, 174 (3d Cir. 2009). The parties in their briefing have each expressed their belief that claim preclusion
does not apply to the current action, although they disagree as to the reason why it does not apply. See Def.'s Resp.
PIs.' Mot. SJ., ECF No. 28, at 11. Therefore, without inquiring to the merits of the parties' arguments on claim
preclusion, the Court does not evaluate its application here.
17 Collateral estoppel does not require that the same claim be presented in each action. Restatement (Second) of
Judgments § 27, emt. b. (1982).
18 More accurately, the USPS posits that because the first element is not met, "by logical consequence, the remaining
factors are also not met because they pertain to the specific issue litigated in the earlier action." Def.'s Resp. Pis.'
Mot. SJ., ECF No. 28, at 10. The Court does not agree that this is the logical consequence at all.
17
Magistrate Judge Caiazza, who rendered a Report and Recommendation that was adopted by
District Judge Ziegler.
1997 U.S. Dist. LEXIS 12582. There, as here, two arbitrators had
reversed the removals of two employees, stating that the one should be "made whole for lost
benefits and wages" and the other should "be made whole for any loss of pay... i.e. back pay,
less any amounts she may have received by way of unemployment compensation."). Jd. at *14,
17. After the awards were issued, the USPS unilaterally determined that the employees did not
meet the requirements of ELM § 436 regarding reasonable efforts to obtain other employment,
and therefore refused to give either any back pay. Jd. The court considered the question of
"whether the issue concerning the mitigation of damages should be presented at the arbitration
hearing or decided after the arbitration hearing." Jd. at *27-28. The court held that the USPS was
required to have presented any mitigation evidence or arguments at the arbitration hearing, and
therefore "ordered [the USPS] to award [the employees] their back pay in accordance with the
arbitrators' decisions." Jd. at *33.
The USPS does agree that in many ways, the issues considered by the Pittsburgh Metro J
court and by this Court are one and the same. See Resp. at 28 ("To be clear, the issue that
[Pittsburgh Metro 1] put before this Court in 1997, and the issue which it purports to put before
this Court presently is whether the Postal Service has waived its right to reduce back pay for a
failure to mitigate damages in accordance with ELM 436.12 because it did not raise this issue at
the underlying arbitrations.").
As any fair reading of the Pittsburgh Metro J opinion makes
plain, it is hard to imagine any cleaner identity of issues.
However, the USPS argues that the issues are not, in fact, identical for two reasons. The
first can be disposed of rather easily, while the second requires a deeper analysis. First, the
USPS argues that the issue in Pittsburgh Metro J is distinguishable because the USPS there
18
offered the employees no back pay at all, where here, it gave them forty-five (45) days' back
pay.
Therefore, according to the USPS, the issue in the prior action was "outcome
determinative," but here, it is an "interpretive" dispute. ECF No. 28 at 9. The Court cannot
discern why the amount of the award makes any difference. There, as here, the USPS sought to
contravene an arbitrator's award of "full back pay" by unilaterally injecting after the fact the
mitigation principles of its ELM § 436. That the USPS unilaterally elected to award $0 or some
amount greater than $0 in so doing makes no difference whatsoever
the issue decided in
Pittsburgh Metro I was that the USPS does not get to make that election at all.
Second, the USPS argues that the parties engaged in a national grievance-arbitration
process in 2000-2001, after Pittsburgh Metro I was decided ("National Dispute"), and that the
outcome of that process renders the issue before this Court different from that before the court in
1997 .
In essence, the argument is that a change in factual circumstances after the prior
determination bars the application of collateral estoppel here.
2. Changed Circumstances
Courts appear to waver in considering whether "changed circumstances" vitiates the
application of the "identical issue" element of collateral estoppel, or whether it presents an
equitable exception to the application of collateral estoppel, even if the "issue" to be determined
is the same. 19 Compare Anspach ex reI. Anspach v. City ofPhiladelphia, 380 F. App'x 180, 184
(3d Cir. 2010) (using "identity of issues" terminology) and Hawksbill Sea Turtle v. Fed.
Emergency Mgmt. Agency, 126 F.3d 461,477 (3d Cir. 1997) (same) with Leventry v. Price, 319
19 The equitable exceptions to collateral estoppel vary based on the proposed use of the estoppel. This is a case of
offensive mutual estoppel, "offensive" because Plaintiffs seek to estop a Defendant who previously litigated and lost
an issue, and "mutual" because the parties here are the same as those in Pittsburgh Metro 1. See Nat'l R.R.
Passenger Corp. v. Pennsylvania Pub. Uti!. Comm 'n, 288 F.3d 519, 525 (3d eir. 2002). The relevant equitable
factors to be considered in a case of mutual collateral estoppel are summarized in § 28 of the Restatement (Second)
of Judgments. See id. The USPS points to the rule that "a new determination is warranted in order to take account of
an intervening change in the applicable legal context or otherwise to avoid inequitable administration of the laws,"
Restatement (Second) of Judgments § 28(2)(b).
19
F. Supp. 2d 562, 568 (W.D. Pa. 2004) (holding collateral estoppel elements met, considering
"changed circumstances" in the context of an "exception to the general rule of collateral
estoppel") and Ramallo Bros. Printing, Inc. v. El Dia, Inc., 490 F.3d 86, 90-91 (1st Cir. 2007)
(same).
However, regardless of the lens through which the Court views "changed
circumstances," the legal standard appears to be the same.
"[W]hen significant new facts grow out of a continuing course of conduct the issues in a
successive suit may fail to constitute the same 'issue' so as to merit preclusive effect."
Hawksbill, 126 F.3d at 477. However, "carried to its extreme, the concept of changed factual
circumstances could totally undermine the application of collateral estoppel. ... Thus, where the
changed circumstances are not material, and therefore do not amount to controlling facts,
collateral estoppel remains applicable." Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840,
846 (3d Cir. 1974); see Leventry v. Price, 319 F. Supp. 2d 562, 568 (W.D. Pa. 2004). Therefore,
the question presented is whether the events of the National Dispute in 2000-2001 rendered the
circumstances materially changed since Pittsburgh Metro I in 1997. Without further ado, the
Court now turns to the merits of that consideration, which constitutes the USPS's most forceful
challenge to the application of collateral estoppel, and its most energetic argument against
Plaintiffs' Motion for Summary Judgment.
a. Factual History of the National Dispute
A USPS representative sent a letter on September 5, 2000 to the APWU President, stating
that the USPS was initiating a Step 4 Dispute pursuant to Article 15 of the CBA, on the issue of
"[w]hether ... [ELM] Subsection 436.12 is applicable after receipt of an arbitrator's decision
awarding full back pay." ECF No. 28-1 at 12. The only other piece of physical evidence offered
by the USPS relating to the National Dispute is another letter from a USPS representative to an
20
APWU member on April 19, 2001. ld. at 18. That letter stated that the parties met "recently to
discuss" the grievance at issue, and stated their respective positions, and reaffirmed the USPS's
position that it had the authority to unilaterally apply the ELM after an arbitration award. ld.
Importantly, the letter ends by stating, "Time limits were extended by mutual consent.,,20
The USPS contends that the result of this correspondence is that the USPS's position
became the final, binding determination of this issue, one that had been plaguing the parties for
decades. Section 15.2.Step 4 of the CBA states:
Step 4:
(a) if any dispute properly initiated at this step by the appropriate National
Union/Management Representative, the parties shall meet at the National level
promptly, but in no event later than thirty (30) days after initiating such dispute in
an effort to define the precise issues involved, develop all necessary facts and
reach agreement. . . . The parties' Step 4 representatives may, by mutual
agreement, return any dispute to Step 3 where (a) the parties agree that no
national interpretive issue is fairly presented or (b) it appears that all relevant facts
have not been developed adequately .... Should the parties at the National level
fail to reach agreement, then within fifteen (15) days of such meeting each party
shall provide the other with a statement in writing of its understanding of the
issues involved, and the facts giving rise to the interpretive dispute. In the event
the parties have failed to reach agreement within sixty (60) days of the initiation
of the dispute, the Union then may appeal it to national arbitration within thirty
(30) days thereafter. Any local grievances filed on the specific interpretive issue
shall be held in abeyance at the appropriate level pending resolution of the
national interpretive dispute.
ECF No. 12-1 at 15.
According to the USPS, the April 19, 2001 letter constituted the USPS's "statement in
writing of its understanding of the issues involved." It asserts that the APWU never responded
to that letter, and that "[b]y failing to respond to the Postal Service's Step 4 letter, the APWU
waived its right to now argue that the USPS is precluded from applying ELM 436 to back pay
calculations after an award has been issued." ECF No. 28 at 12. In other words, the USPS's
Nowhere does it identity the "time limits" involved, the length of extension granted or agreed to, or whether (and
to what effect) the extension expired.
20
21
position in the April 19, 2001 letter is now "the final word on the subj ect." Decl. Patrick M.
Devine, Dec. 11, 2012, ECF No. 28-1 at 8.
b. Analysis of the National Dispute21
The Union in response launches two attacks to the USPS's assertion of the effect of the
National Dispute. The first is one of form: that the Declaration of Patrick M. Devine that
accompanied the two letters was made by a person without personal knowledge of those events,
and therefore the statement and the letters may not be considered under Fed. R. Civ. P. 56(c)(2)
and 56(c)(4). The second is one of substance: that in part based on the incompleteness of the
Affidavit, there is no way to know what the effect of the various letters actually was.
Turning first to the procedural argument, Fed. R. Civ. P. 56(c)(4) provides that "[a]n
affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated." According to Mr. Devine's Declaration,
he is "the Manger of Contract Administration" for the USPS relating to the APWU and Labor
Relations. ECF No. 28-1 at 6. He joined the Postal Service Law Department in 2002 and joined
the Labor Relations Department in 2005. Id. In August 2012, he "directed [his] staff to research
whether the parties have addressed back pay disputes at the national level," where he learned
about the 2000-2001 National Dispute. Id. He reviewed the letters, and states that "The APWU
neither sent its own letter nor appealed the matter to national arbitration, as set forth in Article
15.2 (Step 4). As such, the Postal Service's position is the final word on the subject ... and the
21 The USPS and the APWU also argued before the court in APWU Philadelphia whether the National Dispute had
any effect on the USPS's ability to apply ELM § 436 after an arbitration award. While the court thoroughly detailed
the underlying facts and the nature of the arguments relating to the National Dispute, it did not answer that question
because the arbitration awards before it were rendered in June 2000, which occurred before the April 19,2001 letter
would have even hypothetically effected any change to the CBA. See APWU Philadelphia, 222 F. Supp. 2d at 487
88. Because the arbitration awards here were rendered in 2012, this Court must address the argument on its merits.
22
APWU has waived its opportunity to respond or otherwise contest it." Id. at 8. It is apparent
from the face of Mr. Devine's Declaration that any knowledge he has about the National Dispute
is anything but personaL Therefore, the USPS is not permitted to rely on his assertions for
affirmatively establishing facts in opposition to the Union's Motion for Summary Judgment,
including his assertions about any intervening matters not actually contained in the letters, such
as whether the APWU responded to the April 19, 2001 letter and the effect of any such non
response?2
However, Union goes one step further and argues that the letters themselves are also
unavailable for consideration here, because they are hearsay and thus barred by Fed. R. Civ. P.
56(c)(2). Under Rule 56(c)(2), "A party may object that the material cited to support or dispute a
fact cannot be presented in a form that would be admissible in evidence." (emphasis added). But
in interpreting that Rule, "[t]he Supreme Court and Third Circuit, though, have 'not precluded
reliance on unauthenticated documents to oppose a motion for summary judgment, so long as
they are ultimately reducible to admissible evidence.'" In re Flonase Antitrust Litig., 815 F.
Supp. 2d 867,875-76 (RD. Pa. 2011) (quoting Lexington Ins. Co. v. W. Pa. Hasp., 423 F.3d 318,
329 n. 6 (3d Cir. 2005)) (internal marks and citations omitted) (emphasis added). There is no
reason to believe that just because the letters proffered by the USPS might be hearsay, they could
22 The USPS asserts its own challenge to two affidavits proffered by the Union. It points out that the APWU filed its
Motion for Summary Judgment and Concise Statement of Material Facts on December 12, 2012, but failed to file
two supporting affidavits referenced therein (dated December 17 and 31, 2012) until January 17,2013. The USPS
correctly points that this violated the Local Rules of this Court, which require that motions for summary judgment
and their accompanying concise statements of material facts - be filed along with an appendix containing the
documents relied upon, W.D. Pa. Local Civ. R. 56(B), and that the Federal Rules carry a similar requirement, see
Fed. R. Civ. P. 56(c)(1). While this Court in no way condones such a practice, and indeed finds troubling in
particular that affidavits that had not yet been executed were referenced in the Union's motion and brief, it is
difficult to discern what prejUdice, if any, the USPS suffered as a result. The two short affidavits detailed the
proceedings before the arbitrators in the Brosovich and Kello cases, regarding facts which have never been
controverted by the USPS throughout this case, and indeed, regarding facts which were agreed upon by the USPS in
its Responsive Concise Statement of Material Facts. See ECF No. 29 ~~ 20-26. For this reason, the Court does not
believe that it is either necessary or proper to take any action regarding this non-compliance with the Local and
Federal Rules. This miscue simply is not material to the Court's decision.
23
not be converted into admissible form at triaL Furthermore, it is worth noting that the Union has
made no challenge as to the authenticity of the letters - it just disputes Mr. Devine's ability or
competence to divine their meaning.
Thus, the Court may properly consider the letters
themselves as proffered by the USPS in opposition to Plaintiffs' Motion for Summary Judgment,
although it may not consider the explanatory assertions offered in the Devine Declaration.
Turning to the substantive arguments, in considering the USPS's arguments, the Court
must also consider the effect of the two USPS letters based on the record advanced by the
parties. While the USPS argues that the unresponded-to letter of April 19, 2001 had the effect
under CBA Article 15.2 of making the USPS's position "the final word on the subject," it offers
no textual or other support at all for this statement. Article 15.2 does layout a process for the
resolution of disputes, contemplating an initiation of a dispute, a meeting, shared letters of
position, and a possible appeal. But Article 15.2 on its face is silent as to what happens when
that procedure is not followed or concluded for any reason, and the USPS in particular has not
pointed to any evidence that supports its conclusory statement that that effect of no rebuttal
(notwithstanding the statement that "the time limits were extended by mutual consent") from the
Union is a definitive "waiver" of the Union's position, or that the USPS's final position became
the final word on the topic as a matter of labor contract law or interpretation. 23 In other words,
just because the USPS says that the APWU's failure to respond to the April 19, 2001 letter
rendered the APWU's position "waived,,24 in a permanent and binding fashion as between the
parties, it has not shown any reason other than its own assertions why this would be so.2 5
23 On the one hand, Mr. Devine's Declaration reveals no basis for his having personal knowledge to support the
assertion that the Union did not respond as a factual matter, nor does it on the other hand lay a foundation for the
evidentiary conclusion that there was the "absence of a record of a regularly conducted activity," i.e. that the
Union's non-response can be proven by the absence of a record of it. See Fed. R. Evid. 803(7).
The CBA does appear to provide that if the Union fails to meet a CBA-prescribed time limit, that grievance is
then deemed waived. Article 15.4.B, ECF No. 12-1 at 97. However, the USPS has neither argued nor advanced any
24
24
The burden is on the USPS to show that a genuine issue of material fact exists as to
whether the National Dispute constituted materially changed circumstances, where the Union has
already shown that collateral estoppel would otherwise be applicable. In Scooper Drooper, the
Third Circuit held that where the party opposing summary judgment and arguing that collateral
estoppel did not apply failed to produce evidence that presented a genuine issue of material fact
as to whether the controlling facts had changed, summary judgment was proper. 494 F.2d at 848.
Here too, the USPS has not offered evidence sufficient to meet that burden - it has not offered
any evidence, other than an inadmissible Declaration of one individual without personal
knowledge, that demonstrates why based on those two letters this Court should corne to the
admissible evidence that demonstrates (or even creates a genuine issue of material fact) that CBA Article 15.4.B is
applicable here, or that its provisions were in fact triggered by the Union's failure to proceed within any agreed
upon, extended time limits. All that the record shows, read in a light most favorable to the USPS, is that all time
limits (whatever they were) were extended by the April 19,2001 letter. Further, the CBA provides at Article 15.4.B
that if the USPS fails to timely raise the untimeliness of a Union response, any waiver argument is then considered
as having been waived by the USPS. The record advanced by the USPS does nothing to illuminate those CBA
provisions here. This is particularly important, since the April 19, 2001 letter submitted by the USPS recites the
Union's very sharp disagreement with the USPS's stated position as to the post-award application of ELM § 436.
Furthermore, the Court notes that when the USPS argued ten years ago in APWU Philadelphia that the National
Dispute constituted a waiver of the Union's position regarding ELM § 436, that court observed that the USPS had
not provided it any evidence as to when the Union would have waived arbitration on the National Dispute. See 222
F. Supp. 2d at 688 n.ll. The USPS was apparently not able to provide concrete facts as to this alleged "waiver" at a
time far closer to the events in question, and likewise failed to do so here, a decade later.
25 There is another troublesome feature of Plaintiffs' briefing: Plaintiffs never filed a Reply to Defendant's
Responsive Concise Statement of Material Facts, ECF No. 29. Under LCvR 65, "Alleged material facts set forth in
... the opposing party's Responsive Concise Statement, which are claimed to be undisputed, will for the purpose of
deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted
by a separate concise statement of the opposing party." The additional material facts asserted by the USPS cover the
topics of (1) the National Dispute and (2) Plaintiffs' failure to file the affidavits on which it relied in its Motion for
Summary Judgment. The Court has already addressed Plaintiffs' failure to file their affidavits properly. As for the
facts pertaining to the National Dispute, the facts that are objected to in Plaintiffs' Reply brief are those which
constitute the substance of Mr. Devine's Declaration. See ECF No. 32 at 2-4. Because Mr. Devine's Declaration
may not be relied upon by the USPS to oppose Plaintiffs' Motion for Summary Judgment, the corresponding
additional statements of material facts that emanate from it (excluding those that merely relate the content of the two
letters), ECF No. 29 1f1f 27-33, also may not be relied upon, and thus Plaintiffs' position is not impaired by their
failure to respond to those additional statements of material fact. Therefore, once again, the Plaintiffs' procedural
failing is not material to the Court's decisional process.
25
conclusion that the issue plaguing these parties for decades was swiftly and decisively resolved
by the APWU's failure to send a letter back to the USPS in 2001.
In sum, the USPS has not demonstrated that the National Dispute effected a change in the
controlling facts since Pittsburgh Metro 1 was decided.
The issue considered and actually
litigated in that case was identical to this one, it was necessary to the prior ruling, it was fully and
fairly litigated by these parties in that case, and no equitable exceptions to collateral estoppel
apply. In such circumstances, an employer is not permitted to engage in a game of dodgeball
with a never-ending lineup of federal judges, asking each of them to take their tum at deciding
(again) the very same issues previous federal judges have adjudicated against it. The Supreme
Court has told us for decades that final and binding arbitration awards are just that, final and
binding.
The Steelworkers Trilogy does not countenance serial efforts to overturn them
judicially on repeatedly-rejected grounds, with each case beginning in the hope that it will
somehow tum out differently than the last one. The USPS is precluded from arguing here that it
may unilaterally apply the ELM after an unambiguous arbitration award of "full back pay" (or a
substantially similar award), and deduct from an employee's award for a failure to take
reasonable measures to seek alternative employment,26
C. Conclusion
For the reasons stated above, the Union's Amended Complaint adequately states a claim
for relief, and this Court has the power to adjudicate these matters. This Court holds that the
final and binding arbitration awards relating to Mr. Kello and Ms. Brosovich must be enforced
(1) because the Court agrees with the reasoning of prior decisions that the USPS may not
challenge an unambiguous award by later unilaterally applying deliberately bypassed mitigation
As noted above, the non-materiality of the National Dispute also vitiates the USPS's argument that the six (6)
cases all finding against the USPS on this precise issue lack persuasive authority.
26
26
principles, and also (2) because under the doctrine of collateral estoppel, the USPS is precluded
from now making that argument in this case. Summary judgment in favor of the Union is proper
because it has demonstrated that there is no genuine issue of material fact and it is entitled to a
judgment enforcing those awards as a matter of law?7 Defendant USPS's Motion to Dismiss,
ECF No. 11 is denied, and Plaintiffs' Motion for Summary Judgment, ECF No. 23, is granted.
An appropriate order will issue.
ark R. Hornak
United States District Judge
Dated: April
cc:
V: 2013
All counsel of record
Plaintiffs also sought an award of attorneys' fees. ECF No.8 at 6; ECF No. 13 at 14-15. Such an award is
discretionary with the Court. See Wilkes Barre Hosp. Co., LLC v. Wyoming Valley Nurses Ass'n Pasnap, 453 F.
App'x 258, 261 (3d Cir. 2011) (citing Chauffeurs, Teamsters and Helpers, Local Union No. 765 v. Stroehmann
Bros. Co., 625 F.2d 1092, 1094 (3d Cir.1980)). While it is a close call, the Court concludes that the USPS had a
sufficiently principled basis in light of its "changed circumstances" argument to litigate the matter, so such an award
would be improvident in this case.
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