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MCLEAN v. USPS

August 13, 1982

DONALD W. McLEAN, an individual, Plaintiff,
v.
UNITED STATES POSTAL SERVICE, NATIONAL RURAL LETTER CARRIERS' ASSOCIATION, an unincorporated association, PENNSYLVANIA RURAL LETTER CARRIERS' ASSOCIATION, an unincorporated association, Defendants



The opinion of the court was delivered by: MANSMANN

 MANSMANN, District Judge.

 This matter is before the Court on a Motion to Strike filed by Defendant United States Postal Service ("Postal Service") and on Motions for Summary Judgment *fn1" filed by Defendant Postal Service and Defendant Unions, The National Rural Letter Carriers' Association and the Pennsylvania Rural Letter Carriers' Association ("Unions"). Plaintiff, Donald W. McLean, brought this action against his employer, the Postal Service, over the computation of a back pay award, and against the Unions alleging a breach of their statutory duty of fair representation over the manner in which they processed Plaintiff's grievance. For the reasons set forth below, Defendants' Motions for Summary Judgment are granted. *fn2"

 * * *

 FACTUAL BACKGROUND

 The facts of this case may be summarized as follows:

 Plaintiff is employed by the Postal Service as a rural letter carrier. In January 1979, Plaintiff was notified that the Postal Service intended to discharge him for allegedly falsifying information on his Postal Service employment applications. Shortly thereafter, the Unions filed a grievance on Plaintiff's behalf pursuant to Article XV of the National Collective Bargaining Agreement.

 Plaintiff's grievance was denied at step 1 and step 2A of the negotiated grievance procedures. It was then appealed to step 2B. *fn3" Plaintiff's discharge became effective on March 23, 1978, while he was awaiting decision at step 2B.

 Because Plaintiff was considered a "veteran preference eligible" under Article XVI of the Agreement and under Civil Service regulations, *fn4" he was entitled to appeal to the Federal Employees Appeals Authority ("FEAA") of the U.S. Civil Service Commission ("Civil Service Commission") *fn5" in lieu of going to arbitration. Under Article XVI, Section 6, of the Agreement, any "preference eligible" who takes such an appeal "thereby waives access to any procedure under (the) Agreement beyond Step 2B of the grievance-arbitration procedure." Thus, a "preference eligible" had the option of going outside the Agreement and taking a statutory appeal to the FEAA or of staying within the Agreement and submitting a grievance denied at step 2B to arbitration (with the authorization of the National Union's President).

 Because an appeal to the FEAA had to be submitted within 15 days of the adverse action, *fn6" Plaintiff submitted an appeal even before he received a decision at step 2B of the grievance procedures. A few weeks later, the Postal Service denied his grievance at step 2B.

 By decision dated October 6, 1978, the FEAA reversed the Postal Service's action in removing Plaintiff from his position. It recommended that the agency "cancel the personnel action" by which Plaintiff had been removed.

 Although the FEAA's decision made no mention of back pay, the Postal Service informed Plaintiff that since his "restoration" was retroactive, he was entitled to apply "for lost wages under Public Law 89-380." *fn7"

 Plaintiff returned to work in late October 1978. In February 1979, Plaintiff's attorney wrote to the Chief Appeals Officer of the MSPB, formerly the Chief Appeals Officer of the FEAA, since Plaintiff had not yet received his back pay. The Chief Appeals Officer responded that "(by) restoring Mr. McLean to his position, the Postal Service has complied with our decision." He also stated that "(this) office has no jurisdiction over matters concerned with money or lost wages." The Appeals Officer advised that "(if) the problem is not resolved, he should file a claim with the Comptroller of the United States, Washington, D.C."

 In April 1979, the Postal Service mailed Plaintiff a check in the amount of $5788.94 for his back pay.

 Plaintiff took issue with the amount he received. Therefore, his attorney again wrote to the MSPB Chief Appeals ...


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