PPOA AND USPS CENTRAL AREA ARBITRATION PANEL

In the Matter of the Arbitration between

POSTAL POLICE OFFICERS ASSOCIATION, Grievant Geoffrey A. Bailey
Union, PO Detroit DIV I S P1
and USPS # J14K-1J-D 17474755
UNITED STATES POSTAL SERVICE, PPOA # DET17001D
Employer.
_________________________________________/

BEFORE: E. Frank Cornelius, Arbitrator

APPEARANCES:
For the Union: Jeffrey H. Jacobson, Esq.; Jacobson Law Firm; 2730 East Broadway
Boulevard, Suite 160; Tucson, AZ 85716
For the US Postal Service: G. Dwayne Cassel, PHR; Labor Relations; US Post Office; 1401
West Fort Street; Detroit, MI 48233
Place of Hearing: George W. Young Post Office, 1401 West Fort Street, Detroit, MI 48232-6119
Dates of Hearing: December 7, 2017 & January 30, 2018
Date of Award: March 19, 2018
Relevant Contract Provisions: Articles 6, 15 & 16
Contract Years: 2012-2017
Type of Grievance: Discipline (Discharge)
AWARD SUMMARY:
On January 6, 2014, a rented van crashed into the lobby of the Post Office in downtown Detroit.
The driver was charged with a federal crime. On December 22, 2015, in an application for promotion,
Grievant claimed that he had filed an incident report about the vehicle crashing into the Post Office,
almost two years earlier. On January 13, 2016, Grievant was interviewed by an assistant US attorney in
preparation for the driver’s trial. During that interview, Grievant admitted that he had not completed a
report.
An extensive investigation about the putative report ensued, as a result of which Grievant was
terminated from his position as Postal Police Officer for intentional misrepresentation and providing
false information. A grievance was filed, and ultimately the Union appealed its denial to arbitration.
After a two-day hearing, the arbitrator upheld the false information charge and ordered Grievant
reinstated but without back pay.
________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

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 OPINION
I. Joint Exhibits
Prior to commencement of the arbitration hearing, the parties agreed upon the following joint
exhibits (JX):
1. Agreement between United States Postal Service and Postal Police Officers Association, 2012-2017
2. Postal Police Officers Association Appeal to Regional Arbitration with enclosures, dated July 1,
2017
3. Report of Investigation of Grievant by Office of Inspector General, dated August 19, 2016
4. Memorandum of Interview of Grievant by Captain Derek Boenick, on November 18, 2016
5. Notice of Removal to Grievant from Sergeant Ervin Masa, dated March 10, 2017
6. Police Blotter, 0700 hours 1/5/2014 through 1520 hours 1/6/2014
7. Postal Police Officer Applicant Memorandum of Understanding for Postal Service Employee,
signed by Grievant on February 1, 2010
8. Favorable letters to Grievant from Inspectors in Charge, December 8, 2010 & July 13, 2015
9. Douglas Factors in Depth. See Douglas v Veterans Administration, 5 MSPB 313; 5 MSPR 280
(1981)
10. Postal Police Officers Association Request for Information Form with attachments, to Captain D.
Boenick from Grievant, dated April 19, 2017
11. Various Pre-Arbitration Emails, including those re settlement discussions, between September 19,
2017, and September 25, 2017
12. Emails between Doug Salzenstein and Cynthia D. White re Incident Reports, January 6, 2016
13. Giglio Check Request re potential trial witnesses, from Doug Salzenstein. See Giglio v United
States, 405 US 150; 92 S Ct 763; 31 L Ed 2d 104 (1972)
14. Incident Reports Nos. 14-0030 & 14-0031 by Grievant, dated January 6, 2014
Some of the pages in these exhibits have been numbered manually for ease of reference. In cases
of exhibits with printed page numbers in addition to page numbers manually written, the arbitrator cites
the latter. The arbitrator thanks the parties for agreeing on these joint exhibits, as it helps expedite the
hearing.
II. Governing Rules
The first order of business is to determine which rules govern this arbitration. The usual rules
governing federal service arbitrations need not apply, because the United States Postal Service is not an

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“executive agency” within the meaning of 5 USC § 7103(a)(3). Bacashihua v MSPB, 811 F2d 1498,
1502 (Fed Cir 1987); Burke v USPS, 888 F2d 833 (Fed Cir 1989); Morris v USPS, 904 F2d 44 (Fed Cir
1990); Smith v USPS, 907 F2d 157 (Fed Cir 1990).
The collective bargaining agreement does not specify any particular set of rules. However, in §
15.05(g), entitled “Disciplinary and Contract Application Cases”, it does provide:
The parties shall select a 3-member arbitration panel for each Area from a list of 15 names
provided by the Federal Mediation & Conciliation Service for each Area. Such arbitrators shall
be selected by the alternative striking from the list. In each case certified for arbitration, the
parties shall assign the case on a rotating basis to an arbitrator on the parties’ panel of arbitrators
within the Area in which the grievance arose. JX 1 @ 46-47, § 15.05(g)(1).
This arbitration is in the Central Area. JX 1 @ xv, Preamble; 52 Fed Reg 47002.
The fact that the arbitrators are taken from the FMCS roster would make application of FMCS
rules appropriate. The Code of Professional Responsibility for Arbitrators of Labor-Management
Disputes is posted on the FMCS website and provides in pertinent part:
1. An arbitrator must provide a fair and adequate hearing which assures that both parties have
sufficient opportunity to present their respective evidence and argument.
a. Within the limits of this responsibility, an arbitrator should conform to the various types of
hearing procedures desired by the parties. § 5.A.1
In this case, the parties have stated no preference.
In an Internet post, the FMCS explains that, absent a contrary agreement by the parties, the
arbitrator has full responsibility for the conduct of the hearing:
There are no specific “hearing” rules for FMCS arbitrators. The arbitrator determines the
manner in which the hearing will be conducted and is totally responsible for determining
evidentiary and other matters related to the hearing, unless these matters are outlined in the
parties' collective bargaining agreement.2
The Postal Service does not dispute that it bears the burden of proving just cause for its
termination of Grievant. JX 1 @ 48, § 16.01; TR @ 5 (opening statement). Thus, the only decision for
the arbitrator is the standard of proof to which the Postal Service will be held. See generally, Elkouri &

1
https://www.fmcs.gov/services/arbitration/arbitrator-code-professional-responsibility/
2
https://lapps.fmcs.gov/internet/itemDetail.asp?categoryID=247&itemID=17942

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Elkouri, How Arbitration Works (ABA/Bloomberg BNA, 8th ed, 2016), “Quantum of Proof”, @ 15-
26—15-30. For this case, the arbitrator applies the preponderance of the evidence standard. In particular,
he adopts the formulation of that standard found in 5 CFR § 1201.4(q):
Preponderance of the evidence. The degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested fact is more
likely to be true than untrue.
This choice of the standard of proof is motivated in part by a desire to achieve at least some
consistency in the treatment of employees covered by the collective bargaining agreement. Sections
16.06, “Suspensions of More than 14 Days or Discharge”, and 16.09, “Veterans’ Preference”, provide
that a “preference eligible” may “choose[] to appeal a suspension of more than fourteen (14) days or a
discharge to the Merit Systems Protection Board (MSPB) rather than through the Grievance-Arbitration
Procedure.” JX 1 @ 50-51. A preference eligible who elects to appeal to the MSPB would have his case
decided under the preponderance of evidence standard specified in 5 USC § 7701(c)(1)(B). USPS v
Gregory, 534 US 1, 5; 122 S Ct 431; 151 L Ed 2d 323; 2001 US LEXIS 10307. Although Grievant is
not preference eligible (TR @ 197-198), it seems reasonable to take consistency into consideration. See
Cornelius v Nutt, 472 US 648; 105 S Ct 2882; 86 L Ed 2d 515; 1985 US LEXIS 99; 53 USLW 4837;
119 LRRM 2905.
III. Factual Background
On January 6, 2014, a rented U-Haul3 van crashed into the lobby of the George W. Young Post
Office (“GWY”) in downtown Detroit, Michigan. Postal Police Officers Geoffrey Bailey (“Grievant”)
and Michael Jefferson responded to the incident. Although the driver initially claimed that snow caused
him to lose control of the vehicle, he later confessed that he crashed it deliberately because of a grudge
against the Post Office. The driver was charged with a federal crime. Officer Jefferson wrote a report of
the incident, No. 14-0029, on PS Form 5309. JX 3 @ 20-21.
On December 22, 2015, as part of Grievant’s application for promotion to supervisor, he
submitted an unsigned, undated PS Form 991. JX 3 @ 9-18. As an example of his “Ability to
communicate in writing”, Grievant claimed that he had completed an incident report about the vehicle
crashing into the Post Office, almost two years earlier. JX 3 @ 15. In pertinent part, Grievant wrote:

3
In some exhibits, the van is described as a “Ryder” vehicle (e.g., JX 3 @ 15), but photographs
conclusively show that it was a U-Haul brand (JX 3 @ 21).

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 Situation- A van (Ryder [sic] Truck branding) had been driven into the front lobby of the GWY
facility at 1401 W.Fort St. Detroit MI 48232.
Task- I had to write an Incident Report (5309) sufficient to be utilized by the United
States Postal Inspection Service (USPIS) in its case management system and to be utilized in
court should testimony be required.
Action- I wrote a 5309 that included all of the relevant facts including the what (van
was driven through the front customer entrance and into the lobby of the GWY), when (time
the incident occurred, time the Duty Inspector was contacted, time the Duty Inspector arrived,
time that Officer Jefferson and I were released from the incident), where (the van was moving
southbound on 8th St. from Lafayette and crossed Fort St. and into the facility), how (utilizing
security video footage and observing the tracks which were made in a heavy snowfall we were
suspicious that it may have been intentional), and statements made by the driver (who at first
stated that his van was out of control in the snowstorm, but later stated that he had purposely
driven the van into the facility over a beef he had with the Post Office, his request to go over to
Coney King for a coffee (denied by Officer Jefferson and me)).
Result- The USPIS was able to utilize my report without correction or clarification in
its case management system. While I was not called to testify in the case, my report would have
allowed me to clearly recall the relevant information regarding the incident and accurately relate
the events of the matter.
On January 13, 2016, Grievant was interviewed by Assistant US Attorney Doug Salzenstein in
preparation for the driver’s trial. In an email dated January 25, 2016, Postal Inspector Cynthia White
described the meeting as follows:
I only received a copy of Incident Report # 14-0[0]29 dated 1/06/2014 as the case agent.
It was completed by PPO Officer Michael Jefferson. Although both Officer Jefferson and
Officer Geoffrey Bailey responded to the U-Haul incident on 1/06/14, only Officer Jefferson
completed a report.
During an interview with AUSA Doug Salzenstein on 1/13/2016, Officer Bailey was
asked by the AUSA whether he had completed a report also. Officer Bailey explained he had
started to complete a report, but after learning Officer Jefferson had already completed one,
Bailey decided he would delete what he had initiated. Inspector Cynthia White was present
during the interview at the AUSA’s office. JX 3 @ 19.

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 “In January 2016, Inspector in Charge E.C. Woodson asked Postal Police Captain Dereck
Boenick for a copy of Bailey’s PS 5309 for the U-Haul incident since Bailey reported in his PS 991 that
he completed one. Boenick told Woodson that Jefferson’s PS 5309 was the only report written from the
incident.” JX 3 @ 4.
On May 23, 2016, Inspector In Charge E.C. Woodson filed a Notification of Employee Incident,
in which he asserted that “PPO Bailey never completed an Incident Report Form 5309 concerning the
truck incident.” This began a formal inquiry into Grievant’s conduct. According to the Union brief @
2, Grievant was placed on paid administrative leave on May 27, 2016. TR @ 308-309.
On June 9, 2016, Grievant was interviewed by Special Agents Joy McVicker and David Enos.
Also present during the interview were Union counsel Jeffrey Jacobson and Union president James
Bjork. Prior to commencement, Grievant was given a Kalkines warning, which compelled him to
answer questions without putting himself in jeopardy of criminal prosecution, provided that he was
truthful. JX 3 @ 72; see Kalkines v United States, 473 F2d 1391 (Ct Cl 1973). The interview was
recorded and later transcribed. JX 3 @ 31-71, attachments @ 71-83.
The following are excerpts from the transcript of the interview, the lines of which are numbered:
Q. [D]id you write a police incident report for that event?
A. I would have to check the record to see if I had a report on the event.
Q. As you sit here today, do you remember doing one or not?
A. As I sit here today, no, I do not remember doing one or not. Ls 258-261.
Q. … So you don’t know if you wrote a report or not on that?
A. No. Ls 268-269.
Q. [D]o you remember the topic of whether you wrote a report came up during that discussion
[with the assistant US attorney?]
A. No, I don’t remember whether or not that topic came up. I just remember discussing the
incident. … Ls 280-284.
Q. … Is there a reason that [Form 991] wasn’t signed or dated?
A. I do not have a reason why it’s not signed or dated. Ls 460-463.
Q. So if we had information that said the AUSA specifically asked you if you wrote a report,
does that refresh your memory at all?
A. It does not. I don’t recall that. Ls 532-534.
Q. [E]ven though [Form 991] wasn’t signed, saying that you certified, your intentions was that

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 this is a certified --
A. Yes.
Q. -- application --
A. Yes.
Q. -- correct?
A. That’s correct. Ls 701-707.
Q. [N]o other cases that were relevant in your mind, at the time, when you applied? …
A. -- when you see something as vivid as a box truck drive into a federal building and you live
through Oklahoma, it sticks with you. Ls 724-729.
Q. … [I]s there anything that you’d like to add … regarding … this interview?
This is usually the opportunity if you wanted to make a statement, for the record, for
management that they [sic] could do it.
A. No.
Q. [D]o you swear or affirm that the answers you provided were true and correct?
A. Yes.
Q. … This concludes the statement. The time is now 11:19 on June 9th, 2016. Ls 864-868.
On November 18, 2016, Captain Derek Boenick conducted a “pre-disciplinary” interview of
Grievant. JX 1, § 6.03. Participating telephonically were Union counsel Jeff Jacobson and Union
president Jim Bjork. Captain Boenick wrote the following in his report:
Officer Bailey was offered a chance to talk with Mr. Bjork and Mr. Jacobs[o]n without
anyone else present. Officer Baily indicated that he was fine to continue without having an initial
conversation with Mr. Bjork and Mr. Jacobs[o]n.
Captain Boenick explained that the purpose of the interview was to allow Officer Bailey
to clarify/explain any issues in the investigation, and for him to be able to provide any he wished
taken into consideration before Captain Boenick deliberates.
Officer Bailey said that there was nothing to elaborate on. Officer Bailey indicated that
including the 5309 from the January 2014 incident in his PS Form 991 was a mistake on his
part. Officer Bailey stated that he prepared his 991 at home in the evening and did not have the
ability to check who had prepared the 5309 in question. Officer Bailey indicated that he
remembered having personally completed the 5309 at the time he prepared the 991. Officer
Bailey added that his recollection can be found in the OIG report [JX 3].

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 …
Captain Boenick asked Mr. Bjork and Mr. Jacobs[o]n if they had anything further to
add and they indicated that they did not. JX 4.
On March 10, 2017, the Postal Service issued a detailed and strongly worded Notice of Removal
(JX 5) that stated in pertinent part:
This is advance written notice that you will be removed from the Postal Service on April 10,
2017.
This action is based on the following reason(s):
Charge 1: Intentional Misrepresentation on Your 991
On or about December 22, 2015, you submitted a PS Form 991, Application for Promotion or
Assignment (“991”) in connection with your application for the position of Supervisor, Postal
Police, Detroit Division. The instructions issued by the Postal Service to applicants completing
a 991 contain the following language: “WARNING: ANY PERSON WHO KNOWINGLY
SUBMITS A FALSE STATEMENT TO THE POSTAL SERVICE MAY BE SUBJECT TO
CRIMINAL AND/OR CIVIL PENALTIES.”
…
I find from the evidence contained in the ROI [JX 3] that you made … false statements with the
intent to deceive or mislead the agency. …
…
The Inspection Service Code of Conduct, Falsification or Misrepresentation, provides:
Deliberate falsification or misrepresentation in official communications, either written or oral,
is prohibited. JX 5 @ 1-3.
Charge 2: Providing False Information in Connection with an Official Matter
…
I find that … statements you made to the OIG during your June 9, 2016 interview were false
and were made with intent to deceive or mislead the agency. …
…
Handbook IS-702, Postal Police Officer’s Guide, Section 1-5.7, Prohibited Conduct, provides:
Actions or conduct for which corrective action (including discharge) may be taken against an
officer encompass, but are not limited to:
d. Making a false statement in connection with any official matter.

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 Penalty Analysis
In reaching my decision that the penalty of removal is appropriate, I have considered a range of
factors, some of which weigh in your favor. For example, since becoming a Postal Police Officer
and reporting to the Detroit Division in May 2010, you have received four performance level
ratings of satisfactory and two of outstanding. You have also received two Letters of
Recognition and one Letter of Commendation. I also note that a review of your Official
Personnel File (OPF) discloses no instances of any disciplinary action.
…
One of the requirements of a Postal Police Officer is to potentially testify in federal court. In
fact, your meeting with the AUSA and Postal Inspector on January 13, 2016, … was for the
purpose of determining whether you were going to be called to testify at the federal criminal
trial of the driver of the Ryder [sic] van. Presently, if you would again be requested to provide
testimony in a federal criminal case, the Giglio and Henthorn [931 F2d 29 (9th Cir 1991)]
policies would require the agency to provide any and all information surrounding this matter to
be provided, at a minimum, to the United States Attorney’s Office and would possibly be
disclosed to the court and to the defense. As such, I believe it is likely that based on the
disclosure of this information surrounding your misconduct, you could not be called as a witness
by the U.S. Attorney’s Office in any criminal proceeding. The disclosure of this information
would blemish the reputation of the Detroit Division and the Postal Inspection Service. As such,
I have lost all confidence in your ability to fully perform your duties as a Postal Police Officer.
JX 5 @ 3-5.
The only reference to the collective bargaining agreement in the Notice of Removal appears in the last
paragraph, where Grievant was reminded that he had “a right to file a grievance under the
grievance/arbitration procedure as set forth in Article 15 of the USPS/Postal Police Officers Association
Agreement within 14 days of your receipt of this letter.” JX 5 @ 5.
A grievance was filed and denied at each step. The Postal Service’ Step 3 denial memorandum
(JX 2 @ 4-5) contained this statement:
In fact, based upon [Grievant’s] falsification of the eCareer application it was deemed by the
US Attorneys that he would not be credible to testify in future hearings. JX 2 @ 5.
Ultimately, on July 1, 2017, the Union requested arbitration. JX 2. Attached to the cover letter was a
copy of the Postal Police Officers Association Step 2 Grievance Form. JX 2 @ 12-21. The Form

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contained a lengthy argument supporting the Union’s position. In particular, JX 1 @ 9, § 6.01, which
requires that an employee “should be treated at all times with dignity, respect, and fairness …,” was
quoted in the argument. JX 2 @ 18.
IV. Analysis
ISSUE PRESENTED: Did the Employer have just cause to terminate Grievant and, if not, what shall
the remedy be?
IV.A. Charge 1 – Intentional Misrepresentation
Grievant was charged with intentional misrepresentation. He admits including false information
in his application for promotion, so that the Postal Service need only prove intent. In assessing intent,
the arbitrator “will examine the totality of the circumstances to determine whether the agency has proven
intent to defraud, deceive, or mislead. See Delancy v. U.S. Postal Service, 88 M.S.P.R. 129, ¶ 4 (2001).”
Crump v Dept of Veterans Affairs, 2010 MSPB 119, ¶ 6. However, “[p]roving intent in either the civil
or criminal context is inherently difficult.”4 Grievant insists that he made an innocent mistake, and there
is evidence to support his claim.
The U-Haul incident occurred on January 6, 2014, at 4:25 in the morning. JX 6 (Police Blotter)
& JX 3 @ 20 (Jefferson’s 5309, Report No. 14-0029). Grievant himself actually completed two Forms
5309 that same day. JX 6 (Police Blotter) & JX 14 (Grievant’s Forms). Grievant’s first 5309, Report
No. 14-0030, pertained to an incident involving a mentally ill individual, that began about 6:45 am.
Grievant’s second 5309, Report No. 14-0031, prepared about 7:55 am, was his Local Patrol report
(“These are the events that occurred while on Local Patrol on 1/6/14”).
In footnote 2 of the Union brief @ 6, the following allegation is made:
The Agency never produced a copy of PPO Bailey’s local patrol report. It is entirely possible
that PPO Baily noted or mentioned the U-Haul truck incident in that report, and that’s why PPO
Bailey believed that he had written a report of the U-Haul truck incident.
The Union is incorrect in alleging that the Agency failed to produce Grievant’s Local Patrol report, as
it is the second page of JX 14, and the incident expressly is listed.

4
Best Practices in Proving Specific Intent and Malice. What Can Civil and Criminal Litigators Learn
from One Another? https://www.americanbar.org/content/dam/aba/administrative/ litigation/materials/
2014_sac/2014_sac/best_practices.authcheckdam.pdf

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 Grievant made two mistakes in his Local Patrol report. When describing the U-Haul incident,
he wrote, “Accident Response at approx. 0425 hours. See blotter #14-0030.” That number is incorrect;
the correct number is 14-0029, the number that Officer Jefferson used for his report. When describing
the incident with the ill individual, Grievant made a similar mistake. He wrote, “Apprehension Response
at approx. 0645 hours. See blotter #14-0031.” The correct number is 14-0030. The very report he was
writing was No. 14-0031. These mistakes suggest the possibility that Grievant was unnerved by the U-
Haul crash, which both he and Officer Jefferson described as harkening back to Oklahoma City.5 JX 3
@ 64, L 729; TR @ 105. A further factor may have been exhaustion, as Grievant had been working
overtime on January 6, 2014. TR @ 290.
Indeed, it is clear that Grievant had memory problems with respect to the crash, because in his
application, he identified the vehicle as having “Ryder Truck branding”. JX 3 @ 15. From the
photographs in Officer Jefferson’s report, it is impossible to think that a Ryder Truck struck the Post
Office. JX 3 @ 21. It was unmistakably a U-Haul. Grievant’s memory of events that happened on
January 6, 2014 was flawed when he filled out his Form 991 on December 22, 2015, almost two years
later. These facts further suggest that the U-Haul incident may have been traumatic.
In November of 2015, Captain Boenick had informed Grievant in person and by email that he
would be interviewed about the U-Haul incident, by the assistant US attorney. TR @ 126, 140. Thus,
when Grievant sat down to prepare his application Form 991, surely he was aware that the AUSA would
question him about any report he might have written. Moreover, at the bottom of the page on which
Grievant put the incorrect information, there is a block for supplying “Reference Name & Phone
Number (For use of evaluator & selector)”, in which Grievant typed the name “A/Sgt. Michael
Jefferson” and Jefferson’s phone number “(313)226-8307”. JX 3 @ 15. Unless Grievant is a reckless
gambler, it is difficult to believe that he intentionally put down misinformation that was almost certain
to be discovered.
IV.B. Charge 2 – Providing False Information
Grievant had a plausible excuse for his mistake, which the Union president explained in his Step
3 appeal letter dated May 13, 2017:
The Grievant’s and the Union’s explanations were not appropriately considered, with regard to
the difference between the December PS991 submission and the January, 2016 AUSU meeting.
As explained at Step 2, in December, 2015—while preparing his PS991—the Grievant

5
https://www.fbi.gov/history/famous-cases/oklahoma-city-bombing

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 mistakenly believed he had prepared a 5309 report regarding the incident which occurred nearly
two years prior to the preparation of the PS991 (January, 2014). Then, in January, 2016—when
PPOs Bailey and Jefferson were summoned to the AUSU meeting—only Jefferson was
provided a 5309 report. It is therefore plausible (as explained during the grievance meeting),
that that is when Bailey realized that he hadn’t completed a report on the January, 2014 incident.
JX 2 @ 7.
The Union brief @ 7 asserts:
PPO Bailey was interviewed by the United States Postal Service Office of Inspector General
(OIG) on June 9, 2016. Exhibit J3 p. 31-71. That interrogation was the first time anyone ever
told PPO Bailey that KSA [Knowledge, Skills, and Abilities] No. 5 was inaccurate.
If that was the first time Grievant learned what the case against him was about, then that was his own
fault. Here is Grievant’s testimony:
… Captain Boenick told me that I was being placed on administrative leave for an integrity
issue. And I asked what integrity issue, and he said he had no information on it, that's all he
knows; that I am to turn in my credentials and my badge to get in and out of the facility and
other facilities and that I could expect to be contacted by OIG for an interview. TR @ 309.
Grievant was not just some hapless PPO but a Union area rep and a member of PPOA’s
executive board. TR @ 285. All he had to do was demand to know what was going on. If the Agency
refused to tell him, he could have called Union counsel. If the Agency was unresponsive to counsel, the
Union could have filed a grievance, citing JX 1 @ 9, § 6 (“fairness”) and US Constitution, 5th Amend
(due process). At Step 2, the collective bargaining agreement would have forced the Agency to lay its
cards on the table. JX 1 @ 41, § 15.03(b)(2) (“The Employer representative will also make a full and
detailed statement of facts and contractual provisions relied upon.”). By the time of the OIG interview,
Grievant knew or ought to have known what was going on.
The arbitrator faced a similar situation in Office of the Sheriff, 107 LA 972, 1996 WL
34574727, 24 LAIS 3328, a case in which a law enforcement officer submitted duplicate time sheets
for off-duty work. The arbitrator’s observations in that case are applicable here:
This case does not make a lot of sense. Grievant has been with the Sheriff's Office 7
years. Except for this one incident, he has a good record. He is industrious, working 6-7 part-
time jobs to earn extra money, which he needs to buy a house. It doesn't seem reasonable that
he would jeopardize his regular job and $1,000 per month in outside income just to cheat

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 Imperial Estates out of $160. As Chief W.B. Hodges suggested on the Confidential Internal
Investigation Recommendation, this whole thing “may have been an oversight.”
On the other hand, grievant's reaction when the overpayment was brought to his
attention was hardly exemplary. Although he did repay the money, it was not until months later.
In the meantime, he engaged in denials which come across as disingenuous. For example, he
denied that he signed the duplicate time sheets, although the signatures clearly are his. Denials
and delay create the appearance of impropriety.
It would have been so simple for grievant just to have admitted his mistake, paid the
money back, and gotten on with business. Instead, he turned what may have begun as an
innocent mistake into a questionable incident. While to err may be human (and hence
forgivable), a failure to accept responsibility for one's mistake and to take prompt corrective
action is not proper conduct, especially for an officer of the law. Such a failure constitutes
“conduct unbecoming a public employee.” Charge IV is, therefore, sustained. 107 LA @ 976,
footnote omitted.
Just as in the case of the sheriff’s deputy, Officer Bailey could have avoided a world of trouble
simply by being straightforward about the facts during his June 9, 2016 interview. JX 3 @ 31-71. The
Kalkines Form that he signed warned him in capital letters that he was subject to discipline if he failed
to answer questions “TRUTHFULLY AND FULLY”. JX 3 @ 72. Instead, he caviled and tried to parse
questions. As a police officer, Grievant surely understood what investigators wanted to know.
In attempting to explain his conduct to the arbitrator, he claimed that he interpreted questions as
asking for a degree of specificity he could not provide. TR @ 317. He persisted in not remembering
whether he was asked if he prepared a 5309 report on the truck crash. TR @ 308, 324-326. Grievant’s
memory seemed to have failed him, even though he admitted that he had read the transcript from the
first day of the arbitration hearing. TR @ 310-311. By the time Grievant took the witness stand in the
arbitration, he should have been well aware of events.
Grievant would have fared better had he followed the model of a gentleman advanced by
Samuel Smiles in Self Help with Illustrations of Conduct and Perseverance:6 “He does not shuffle or
prevaricate, dodge or skulk; but is honest, upright, and straightforward.” Instead, Grievant chose to
violate the terms of the collective bargaining agreement governing “PPO Conduct”:

6
http://www.gutenberg.org/files/935/935-h/935-h.htm

14
 [T]he nature of the positions covered under this contract imposes a high degree of public trust
and requires the highest standards of conduct, honesty, and integrity. JX 1 @ 9, § 6.02.
As a Union official, Grievant should have been well aware of the clear terms of the labor agreement.
JX 2 @ 21.
IV.C. The Discharge Issues
The need for scrupulous honesty was succinctly summarized in a newsletter posted on the
Women in Federal Law Enforcement website:7
When an agency disciplines an officer for any reason, the most important factor the agency
considers in assessing the penalty is the nature and seriousness of the charge and its relation to
the employee's duties, position, and responsibilities. See Luciano v. Department of the Treasury,
88 M.S.P.R. 335, 343 (2001), aff'd 30 F. App’x 973 (Fed. Cir. 2002). Any conduct or statement
that affects an officer’s reputation for honesty and credibility has a direct relation to that officer’s
ability to testify at trial, giving an agency substantial justification for imposing a heavy penalty
- often removal.
Grievant should not have been surprised when the Postal Service reacted with concern for his future
effectiveness as a witness.
The PPOA forms just a small subgroup of the federal law enforcement force. TR @ 239, 287.
The case of Anderson v Brennan, Postmaster General, 2017 US Dist LEXIS 38750; 117 FEOR (LRP)
208, provides some insight into the discipline of Postal Police Officers in actual practice:
PPOs in practice rarely receive any discipline greater than counseling. [Captain]
Motrucinski has only issued two Letters of Warning since 2011, when he became a sergeant.
Both Letters of Warning were issued to Anderson. Motrucinski has only issued one fourteen-
day suspension, and that suspension was issued to Anderson. Nor has anybody else ever been
removed from the Boston PPO during the period of Motrucinski's employment, which is 1999
to present. Inspector-in-Charge Niland never removed any other employee from the entire
seven-state region he oversaw.
Nationwide, about five or six PPOs were terminated in the past three years. Other
reasons for termination were misconduct relating to a lost mail auction, plagiarism and falsifying

7
ARE YOU A “GIGLIO-IMPAIRED” LAW ENFORCEMENT OFFICER? http://www.wifle.org/
newsletters/december2009/nov_2009_credibleofficers.pdf

15
 of reports, and sleeping on duty. The PPO terminated for sleeping on duty was terminated
pursuant to a last-chance agreement, in which a series of infractions led to a negotiated
agreement between the PPO and the Postal Service that any further infraction would lead to
termination.
While the arbitrator does not doubt the propriety of discharge in a proper case, there are a
number of considerations that militate against it in this case. The collective bargaining agreement calls
for progressive discipline and anticipates that a lesser charge may be imposed in a discipline or discharge
case:
[A] basic principle shall be that discipline should be corrective in nature, rather than punitive.
… Any … discipline or discharge shall be subject to the Grievance-Arbitration Procedure
provided for in this Agreement, which could result in reinstatement and restitution, including
back pay. JX 1 @ 48, § 16.01.
This case addresses Grievant’s first offense(s). The contract and the question presented allow the
arbitrator considerable leeway in formulating a remedy. See generally How Arbitration Works @ Ch
18.4.A.
“Mitigation to a lesser penalty is particularly appropriate in this case. The linchpin for the
agency’s imposition of the penalty of removal is its determination that”8 Grievant no longer could testify
effectively in court. In the notice of removal, this concern was voiced as a “belief” (JX 5 @ 5) but
hardened into fact by the time of the Step 3 decision (JX 2 @ 5). On cross-examination, the assistant
US attorney who testified said no such thing (TR @ 53-56), the signatory of the notice of removal
admitted that there’s nothing in the record to support the allegation (TR @ 177), and the signer of the
Step 3 decision was forced to retract (TR @ 207). Giglio itself was about a tainted witness, the kind
without which the criminal justice system could not function.
Grievant sought to downplay the chances of being called upon to testify in court. He has never
had to testify and stated “that would be very typical that we do not testify in court.” TR @ 289. His
explanation was the following:
The inspection service looks to move those sorts of issues to the inspector level for investigation.
They try and remove postal police as a part of that process. They continue to take the position
for reasons … my experiences told me are based on contract, that they don't want to pay us as
police officers. They assert that we are security guards and nothing more than that and to allow

8
From Russo v USPS, 284 F3d 1304, 1310 fn 2 (Fed Cir 2002)

16
 us to start testifying in court as police officers would be damaging to their contract negotiations.
Id.
Grievant’s testimony in this regard was not contradicted, as the Postal Service offered no rebuttal. TR
@ 326.
There are other considerations that make discharge inappropriate. One is the unusual length of
time that elapsed between the date the Postal Service became aware of Grievant’s conduct, January 6,
2016 (JX 12), and the date discipline was effectuated, April 10, 2017 (JX 5). A formal complaint wasn’t
even made until May 23, 2016. JX 3 @ 8. A pre-disciplinary interview was not conducted until
November 18, 2016. If Grievant’s conduct was so outrageous and threatened the reputation of the Postal
Service, the Service would not have proceeded at such a leisurely pace. JX 2 @ 18. Delay in taking
action tends to undermine the putative seriousness of the alleged misconduct. Dept of Veterans Affairs,
115 LA 198, 02-1 ARB ¶ 3067, 2000 WL 33178015, 166 LRR 168, 101 FLRR 2-1107 (Arb 2000)
(taking over two weeks to file sexual harassment complaint undermines seriousness of charge).
Another mitigating factor is that Grievant’s story about the crash was a rather minor part of his
application. His Form 991 was 10 pages long; his story of the crash, little more than half a page. It’s not
as if Grievant was handing the Postal Service a pack of lies. He had a clean record. He had
recommendations and commendations. As a first responder, he deserves kudos for bravery in the face
of the potentially explosive U-Haul situation. Under all the circumstances, Grievant’s mistake with
Form 991 is insufficient to support discharge. When not all charges are upheld, an arbitrator may reduce
the discipline imposed. Office of the Sheriff, 107 LA @ 976.
IV.D. Due Process Issues
In USPS and National Assoc of Letter Carriers, USPS Case No. C90N-4C-D 96000112, NALC
Case No. 10427 (Regional Arb, July 18, 1997),9 arbitrator Raymond L. Britton rescinded a notice of
discharge because, inter alia, there was virtually no discussion at the first step of the grievance procedure
and the management representative had questionable authority to settle the case. The arbitrator
considered the requirement of settlement authority to be mandatory:
The mandate in Article 15, Section 2, Step 1:(b) that the supervisor as well as the steward or
other Union representative have the authority to settle the grievance cannot be considered as
surplusage or as being without purpose. For without such requirement there would be no reason

9
http://mseries.nalc.org/c17067.pdf

17
 for the supervisor or Union steward to engage in any discussion that might lead to and culminate
in the resolution of the grievance at the earliest stage of the grievance procedure. Id. @ 9.
The arbitrator ordered reinstatement without back pay. Id. @ 1.
In the instant case, the collective bargaining agreement between the Postal Service and the
Postal Police Officers Association contains similar mandatory language:
The parties further agree that, at any step in the grievance procedure, the steward or other Union
representative shall have full authority to settle or withdraw the grievance in whole or in part.
The Employer’s representative, likewise, shall have full authority to grant, settle or deny the
grievance in whole or in part. JX 1 @ 39, § 15.02.
Sergeant Ervin Masa, who signed the notice of removal, did conduct a more extensive Step 1 discussion
of Grievant’s case (JX 2 @ 22) than did the management representative in the NALC case. However, at
the time of the discussion, Sergeant Masa was unsure that he had settlement authority (TR @ 162-163,
172), thus depriving Grievant of his procedural right to a settlement discussion, a deficiency of which
complaint was made at Step 2. JX 2 @ 19.
This arbitration is distinguishable from USPS and NALC with respect to the requirements at
Step 1:
As read by the Arbitrator, the language in Article 15, Section 2, Step 1:(a) that the aggrieved
employee must discuss the grievance with "the employee's immediate supervisor" is couched
in mandatory and not precatory terms in that through the selection of the word "must," the parties
intended to make the Step 1 meeting with the immediate supervisor compulsory and obligatory.
This requirement, however, in the considered judgment of the Arbitrator, was not met in the
instant case for the record reveals that the Step 1 designee was Acting Manager, Bill Gonzales
and not the Grievant's immediate supervisor. Id. @ 8.
Here, the parties have weakened the “immediate supervisor” language to the “immediate supervisor or
the replacement supervisor”. JX 1 @ 40, § 15.03(a)(1). Grievant’s immediate supervisor, Captain
Boenick, was not available, having gone on extended leave. TR @ 133. Sergeant Masa was acting in
his absence.
The more difficult issue is Sergeant Masa’s duty, if any, to conduct an independent investigation
at Step 1. The “General Policy” found in § 15.02 provides that grievances are to be resolved “in an
expeditious manner, insuring that all facts and issues are identified and considered by both parties.”
Sergeant Masa did not conduct his own independent investigation before issuing the notice of removal,

18
nor did he interview Grievant. TR @ 166. Masa did consider the OIG report (JX 3) and the
Memorandum of Interview from the pre-disciplinary conference (JX 4). TR @ 151. Precisely what
documents Masa considered in making his Step 1 decision is unclear. JX 2 @ 22, TR @ 168.
A lack of independent judgment led to the reinstatement of a postal worker who admitted to
aggravated criminal sexual abuse of a minor, his adopted daughter, in Nat'l Rural Letter Carriers’ Assoc
v USPS, 625 F Supp 1527 (D DC, 1986). The court explained:
In his May 27, 1985, Opinion and Award, the arbitrator concluded that the USPS violated
Article 16 of the National Agreement because the branch manager of the Bartonville, Illinois
office made no independent judgment and gave no consideration to the proper penalty for the
grievant's actions but simply accepted the recommendations made to him by the Management
Sectional Center without any independent evaluation. Upon the basis of this procedural
violation, the arbitrator ordered Mr. Schwartz reinstated without back pay. Id. at 1528.
The case was cited and followed in Bard Mfg Co, 91 LA 193; 1988 WL 1604819; 15 LAIS 4277 (Arb
1988); see also How Arbitration Works @ Ch 15.3.F.ii.
The Union argues strenuously that each management representative is required to make an
independent investigation at each step of the grievance procedure. TR @ 240-242 (“his or her own
independent investigation at each step of the process”). Although the arbitrator agrees that
management must make a good-faith determination of just cause before dispensing discipline, to
require an independent investigation at each step of the grievance procedure is not reasonable. Such
a requirement would be expensive for an employer and burdensome even for employees, as an
individual could be called upon to make a statement during the initial management investigation, at
each of the three steps in the grievance procedure, and yet again at an arbitration hearing. What is
required at a particular step depends upon the particular case. In the instant case, the investigation by
the Postal Service’ own Office of Inspector General was so thorough that it is unclear what more
Sergeant Masa or other management representatives could have done in terms of investigating the
matter. JX 3.
Grievant and Union representatives had ample opportunity to tell their side of the story.
Present at the June 9, 2016 interview were Grievant, Union counsel, and the Union president. JX 3 @
32. Before the meeting ended, they were asked if they would like to add anything. They were
reminded that “[t]his is usually the opportunity if you wanted to make a statement, for the record, for
management, that they could do it.” Grievant himself said. “No.” JX 3 @ 70. Union counsel and

19
president also were present telephonically during the pre-disciplinary hearing. “Officer Bailey was
offered a chance to talk with Mr. Bjork and Mr. Jacons[o]n without anyone else present.” Grievant
declined the offer. JX 4 @ 1. At Step 1, Grievant was joined by Union First Vice President Frank
Albergo. JX 2 @ 22. If the record is deficient in any way, it is not the fault of the Employer.
Nevertheless, what could have been done differently was to have assigned someone other than
Sergeant Masa to conduct the Step 1 appeal. After all, Masa had just sent Grievant a scathing notice
of removal, in which he wrote, “I have concluded that removal is the only acceptable penalty.” JX 5
@ 5. In Masa’s Step 1 decision, he reiterated his intransigence: “Nothing can change my views about
compromise.” JX 2 @ 22. When Masa was making the decisions, Grievant’s fate was sealed.10
Grievant has due process rights under both the collective bargaining agreement and the US
Constitution. The treatise, How Arbitration Works, has this to say on the subject:
Discharge and disciplinary action by management has been reversed where the action
was found to violate basic notions of fairness or due process. Borrowing from the
constitutional imperative of due process operative in the governmental employment context,
arbitrators have fashioned an “industrial due process doctrine.” … [C]onsideration of
industrial due process as a component of just cause is an integral part of the just-cause analysis
for many arbitrators. Id. @ 15-47–15-48; footnote omitted.
Procedural due process rights, grounded in the Fifth and Fourteenth Amendments of
the U.S. Constitution, arise in the context of the discharge of public employees.” Id. @ 19-6.
Public sector employees who are found to have more than a unilateral expectation of
continued employment are said to have a property interest in their employment, which may
not be taken away without procedural due process. The “just cause” provision of a labor
agreement has been held to create such a protectable property interest. Id. @ 19-8, footnote
42 merged with text, citations in fn 42 omitted.

10
Compare the Master Agreement between the DVA and the AFGE 2011, available at
https://www.va.gov/lmr/docs/agreements/afge/master_agreement_between_dva_and_afge-fin_march
_2011.pdf: At any step of the negotiated grievance procedure, when any management deciding
official designates someone to act on his/her behalf, that designee will have the complete authority
to render a decision at that step and will render the decision. The designee will never be someone
who decided the issue at any previous step. Note 4 @ 232, emphasis supplied.

20
 The Sixth Circuit, in an unpublished decision, joined the U.S. Court of Appeals for
the Second Circuit and a number of district courts in holding that the “just cause” provision
of a contract creates a protectable property interest. Id. @ 19-10, footnote omitted.
The collective bargaining agreement expressly affords Postal Service employees the right to
“fairness”. JX 1 @ 9, § 6.01. Fundamental to due process in employment is the opportunity to be
heard with some reasonable objectivity on the part of decision-makers, bearing in mind that they, too,
may have close ties to their employers. Under all of the circumstances of this case, the arbitrator
concludes that Grievant was not afforded his contractual and due process rights at Step 1.
V. Settlement Negotiations
Although settlement negotiations usually are not part of an arbitration hearing, the parties have
chosen to make them a part of this one. This case originally was set for hearing on Tuesday, September
26, 2017. On the previous Friday, September 22, 2017, at 2:27 PM, Union counsel sent the Postal
Service’s representative the following email:
I added the provision we discussed regarding Geoff’s back pay obligation. Again, so
that we are both on the same page and there are no misunderstandings:
 Geoff will be returned to work as soon as administratively possible, but in no circumstances
will it exceed 180 days of the date he was taken off the payroll;
 Geoff agrees to a 14-day suspension based on a modified charge of “Conduct Unbecoming
a PPO” (or the equivalent used by the Postal Inspection Service);
 The 14-day suspension will stay on Geoff’s record for two years from the date the settlement
agreement is fully executed;
 Geoff will receive 50% of his back pay and associated benefits (SL, AL, and TSP
contributions) from the Agency from the date he was taken off the Service’s payroll to the
date he is returned back to full duty;
 Geoff will complete the applicable Service forms (PS 8038) and return it to Labor Relations
in order to effect his back pay and associated benefits
 Both parties to bear their own attorneys’ fees and costs;
 Geoff will sign standard waivers / release language for any matters related to his removal.
Based on this agreement, I will not be traveling to Detroit; on Monday, we will discuss
any minor details that may need to be ironed out and reduce this agreement to a formal
settlement agreement as soon as possible. JX 11 @ 7 (as numbered by arbitrator).

21
 On Monday, September 25, 2017 at 2:55 PM, Union counsel sent an email to Stacey O. Parker,
the Detroit Postal Service manager of labor relations, which said in pertinent part:
I just got off the phone with Mr. Cassel, who informed me that the Service intends on attempting
to withdraw from our settlement agreement in Geoff Bailey’s matter. We object to this attempt
and will seek to enforce the agreement we entered into with Mr. Cassel; if the Service still
intends to withdraw from our agreement and pursuing arbitration, we will seek sanctions to the
fullest extent possible by law and under the Negotiated Agreement.
The arbitrator was not informed of these developments until the next morning, when he arrived for the
scheduled hearing.
It would not be productive to describe the events which transpired the morning of September
26, 2017, other than to say that ultimately a new date of December 7, 2017 was set. In the meantime,
the arbitrator issued various subpoenas as requested by the parties, and Mr. Cassel continued as the
Postal Service’ representative. At the December 7 hearing, the parties expressed a desire to present
information about their settlement discussions to the arbitrator, and the suggestion was made that this
be done through their respective briefs. TR @ 18-20. The parties agreed, and the day was spent on the
Postal Service’ case. The presentation of the Union case was set for January 30, 2018, and at the
continued hearing, briefing was set for March 12, 2018.
The arbitrator received the Union brief on March 12, as scheduled. Accompanying the brief was
the affidavit of Union counsel Jeffrey H. Jacobson, detailing settlement negotiations with Dwayne
Cassel, Labor Relations Specialist and the Postal Service representative. The arbitrator has no doubt that
Mr. Cassel had actual or apparent authority to settle the case. Indeed, it would be anomalous for the
collective bargaining agreement to require that the representative of each party have “full authority to
settle” at each step of the grievance procedure, but leave the representatives free to posture with one
another during pre-arbitration settlement negotiations, which tend to be most fertile for resolution. JX
1 @ 39, § 15.02.
The arbitrator received the Employer brief on March 13. It was not accompanied by any
affidavit, but offered only an argument that there was no settlement because there was no writing. The
arbitrator can only note that an email is a writing, and there was an email. If contract negotiations could
not be conducted via email, commerce in the 21st Century would be materially impaired. In an act of
tergiversation, the Postal Service urged that the grievance be denied. However, the arbitrator is not going
to rely on either Union counsel’s affidavit or the Postal Service’ argument. Instead, the arbitrator is

22
seeking to balance the equities in this case in which both parties share some blame, based upon the
foregoing considerations and discussions.
VI. Award
The Agency has failed to prove the requisite intent in Charge 1, but has proved Charge 2. On
the other hand, the Agency violated Grievant’s rights at Step 1. Upholding termination based upon
Charge 2 alone seems unduly harsh in light of the Agency’s rights violations. The remedy set out in the
putative settlement email seems too lenient.
The arbitrator decides to follow the lead of Arbitrator Britton in USPS and NALC, supra, and
orders Grievant reinstated but without back pay. The arbitrator also grants the Union’s request “that the
Arbitrator specifically retain jurisdiction regarding implementation of the award.” If the parties do not
return to the arbitrator before the end of April 2018, then the arbitrator’s jurisdiction will end.

23
 PPOA AND USPS CENTRAL AREA ARBITRATION PANEL

In the Matter of the Arbitration between

POSTAL POLICE OFFICERS ASSOCIATION, Grievant Geoffrey A. Bailey
Union, PO Detroit DIV I S P1
and USPS # J14K-1J-D 17474755
UNITED STATES POSTAL SERVICE, PPOA # DET17001D
Employer.
_________________________________________/

BEFORE: E. Frank Cornelius, Arbitrator

APPEARANCES:
For the Union: Arlus J. Stephens; Murphy Anderson PLLC; 1401 K Street, NW, Suite 300;
Washington, DC 20005
For the US Postal Service: G. Dwayne Cassel, PHR; Manager Safety; US Post Office; 1401
West Fort Street; Detroit, MI 48233 & Alejandro Eduardo Almaguer; US Postal Inspection
Service; 895 Central Avenue, Suite #400; Cincinnati, OH 45202-5748
Place: Done by email & US Mail
Dates: April 16-30, 2018
Date of Order: April 30, 2018
Relevant Contract Provisions: Articles 15 & 16
Contract Years: 2012-2017
Type of Proceeding: Implementation of award dated March 19, 2018
ORDER SUMMARY:
On March 19, 2018, the arbitrator issued an award ordering Grievant reinstated without back
pay. Heretofore, the Postal Service has failed and refused to reinstate him to his former position as a
Postal Police Officer on active duty. The arbitrator reaffirms the award and orders the Postal Service to
cease and desist its attempted end run around the award and the collective bargaining agreement.

________________________________
E. Frank Cornelius, PhD, JD, Arbitrator

24
 OPINION
I. Background of Post-Award Proceedings
On March 19, 2018, the arbitrator issued an Opinion and Award (“O&A”) ordering Grievant
reinstated without back pay. At the behest of the Union, he retained “jurisdiction regarding
implementation of the award.” The current implementation issues arise out of a series of four letters:
(1) By letter dated March 20, 2018, Captain Dan Forrester (Acting), Postal Police Manager, Detroit
Division, sent Grievant the following NOTIFICATION:
This is official written notification that Arbitrator E. Frank Cornelius has rendered a decision on
your case which effectuated your return to work. You are directed not to report to work until
notified. You will be paid administrative leave until notified.
(2) The March 20 letter to Grievant was followed by one dated April 6, 2018:
Reference is made to the OIG investigation concerning your position as a Postal Police
Officer. After careful consideration and review, it has been determined that you no longer meet
the security requirements of the position.
A separate letter detailing the specific basis for the unfavorable adjudication has been
provided to the Inspector in Charge. You have the right to appeal this decision within six weeks
from the date of this letter. If an appeal is made, it must be submitted in writing and should
include a detailed response to affirm or deny each of the allegations listed above. Also, attach
a certified copy of any pertinent court documents and forward the appeal to Inspector in Charge,
Security Group, U.S. Postal Inspection Service, 475 L’Enfant Plaza, SW, Washington, DC
20260-2186.
The letter was unsigned but indicated that it was from the Security Investigations Service Center.
(3) Also on April 6, the Center sent a similarly unsigned letter to Patricia Armstrong, Inspector in
Charge at the Detroit Post Office. The letter read in pertinent part:
A review of background information on the above employee [Grievant] disclosed that the
employee no longer meets the security requirements of the position/contract for the following
reason(s):
Employee is the subject of an OIG investigation.
(4) A second unsigned letter bearing the date April 16, 2018 was sent from the Center to Inspector
Armstrong:
This letter shall act as an addendum to the letter previously sent on April 6, 2018.

25
 A review of background information on the above applicant [Grievant] disclosed that
the employee no longer meets the security requirements of the position/contract for the
following reason(s):
The denial is based, per ASM [Administrative Support Manual] 272.31(a), on
intentional false statements in connection with an official inquiry, specifically the OIG
investigation set out in the Report of Investigation dated July 25, 2016 [JX 3]. The
documents used for this adjudication were the PPOA and USPS Central Area
Arbitration Panel and the OIG’s Report of Investigation.
JX 3 was a Joint Exhibit in the arbitration hearings held on December 7, 2017 and continued on January
30, 2018. The reference to the Central Area Arbitration Panel is to the O&A. ASM 272.31(a) states:11
A BI or MBI clearance may be denied or revoked by the Chief Postal Inspector or designee
based on information developed during either the initial investigation or a reinvestigation. A BI
or MBI clearance may also be revoked between reinvestigations upon receipt of validated
information meeting criteria contained herein. The denial or revocation is based on an appraisal
of circumstances surrounding serious incidents involving the employee or applicant related to
the following:
a. Intentional falsification, deception, or fraud in connection with an application or examination
for appointment or in connection with an official inquiry.
II. Appeal for Further Arbitral Input
On April 16, 2018, the arbitrator received a letter from Union counsel requesting his assistance
in implementation of the award. The letter stated in pertinent part:
The dispute concerns USPS’s refusal to reinstate Mr. Bailey to his position. Rather than
reinstate Mr. Bailey, USPS placed him on administrative leave on March 20. On March 27, a
USPS labor-relations manager told the PPOA it was looking into not reinstating him at all. As
justification for this action, the USPS representative cited your opinion and award.
By letter dated April 6, USPS wrote to Mr. Bailey that it was refusing to reinstate him
because it “determined that you no longer meet the security requirements of the position.” Thus,
USPS has continued to refuse to reinstate him to his position and has now revoked his leave.

11
https://www.apwu.org/sites/apwu/files/resource-files/Administrative%20Support%20Manual%20

Issue%2013%20%28Updated%20through%2011-2013.pdf

26
 Dwayne Cassel, heretofore the Postal Service’ principal representative, responded on April 17,
2018 with an email asserting in pertinent part:
The Employee and Labor Relations Manual’s definition of Administrative Leave is clear;
ELM 519.1
Administrative leave is absence from duty authorized by appropriate postal officials without
charge to annual or sick leave and without loss of pay.
 Paid admin leave is reinstatement.
 The admin leave has not been “revoked”.
 Mr. Bailey was in a non-pay status after his 30 day notice period. He was reinstated and
put on paid administrative leave. He could not have been put on paid administrative leave
if he were not first reinstated.
 Placement on paid administrative leave did not result in any loss of pay or benefits.
 Not only is Mr. Bailey receiving full pay, he is also receiving accrual of leave (both annual
and sick), health insurance co-pay, TSP matching. It is exactly the same pay and benefits
that every other employee is entitled to and receives.
 CBA Section 16.06. Suspensions of More Than 14 Days or Discharge.
o In the case of suspensions of more than fourteen (14) days, or of discharge, any PPO
shall, unless otherwise provided herein, be entitled to an advance written notice of
the charges against the PPO and shall remain either on-the-job or on-the-clock
at the option of the Employer for a period of thirty (30) days. Thereafter, the PPO
shall remain on the rolls (non-pay status) until disposition of the PPO’s case has
been made either by settlement with the Union or through exhaustion of the
Grievance-Arbitration Procedure.
 Also, Article 3 gives Management the exclusive right to decide what duties to assign an
employee. If Management decides to pay Mr. Bailey his full pay and benefits to sit at home
that action would not violate the Collective Bargaining Agreement or be contrary to your
award. (Emphasis in original.)
Attached to Mr. Cassel’s email was a copy of FOP Metro Transit Police Labor Comm v Wash Metro
Area Transit Auth, 780 F3d 238, 2015 US App LEXIS 3734, 2015 WL 1019650 (4th Cir), which the
arbitrator addresses infra.
To better understand the current dispute, by letter dated April 18, 2018 the arbitrator made the

27
following request:
Because of a lack of information at this time, I am not prepared to chart a course of action. I
therefore request that each representative send me a summary—not to exceed three pages—of
the unresolved issues and their perspective on them. Most helpful would be cases that address
the meaning of “reinstatement”. Please have this material to me by next Wednesday, April 25,
2018 and copy the other party.
II. The Responses of the Parties to the Arbitrator’s Request
II.A. The Postal Service’ Response
The Postal Service responded by letter dated April 23, 2018. At the outset, the letter states that
“the only relevant issue is whether the Postal Service has complied with the Arbitrator’s decision.” The
letter goes on to say that “[t]he parties disagree … on the definition of reinstated” and that Grievant is
on “paid administrative leave” with full benefits.
The only case cited is FOP Metro Transit Police, supra, which is summarized as follows in the
letter:
In a case very similar to the facts before the Arbitrator, FOP Metro Transit Police Labor Comm.,
Inc. v. Wash Metro Area Transit Auth., 780 F.3d 238 (4th Cir. 2015), the Fourth Circuit dealt
with a “labor dispute between the Washington Metropolitan Area Transit Authority (WMATA)
and the Fraternal Order of Police (FOP). The dispute arose after WMATA fired two of its police
officers, reinstated them pursuant to arbitration awards, and then fired the officers a second time
after Maryland declined to recertify them as police officers in that state.” Id. at 239.
The USPS letter states, “The Postal Service has already reinstated Mr. Bailey. Mr. Bailey is on
paid administrative leave.” The letter sets forth the April 6, 2018 letter to Grievant, letter (2) above, and
asserts that “[t]he issue of Mr. Bailey’s security clearance is not before the Arbitrator.” It concludes that
“[t]he the CBA does not define ꞌreinstatementꞌ in any other way inconsistent with FOP Metro case,
above.”
II.B. The Union’s Response
The Union responded via letter dated April 25, 2018. Because the arbitrator endorses the
Union’s arguments, they are set forth in full:
USPS's actions are an affront to its contract obligations to PPOA and to your award.
USPS cannot get around the "just cause" clause of the CBA by declaring that reinstated officers
do not meet USPS's requirements. That is what the arbitration case that was already adjudicated

28
was all about.
USPS argued in arbitration that Mr. Bailey was dishonest and thus he should not remain
a PPO. USPS representative Almaguer was present at the hearing but he declined to testify.
USPS lost and now must abide by your award.
USPS's actions violate the double jeopardy and res judicata principles of labor
arbitration. Whether Mr. Bailey's alleged dishonesty disqualifies him as a PPO was already
litigated and USPS already lost. It does not get a "do over."
USPS is bound contractually to abide by the just-cause clause and arbitral review of its
decisions. That includes all of USPS. USPS cannot get around the CBA by having a USPS
security department declare that USPS is exempt from reinstatement orders flowing from the
CBA. That would render the CBA a nullity.
If USPS wanted to make "dishonest" actions by PPOs not subject to arbitral review, it
could have bargained for that in the CBA. USPS did not do so. Instead, it agreed to "just cause"
for all acts of alleged misconduct and expressly agreed that an arbitrator may reject its decisions
and order reinstatement and backpay.
"Reinstatement" means reinstatement. The Third Circuit holds that "the phrase
'reinstate[ment] ... to their former employment' [is not] ambiguous ... and requires that the nine
discharged maids be returned to actual duty." Steelworkers v. Adbill Mgt. Co., 754 F.2d 138 (3d
Cir. 1985). We have enclosed other court decisions that also hold an employee must be
reinstated and not disturbed.
USPS is not the first "clever" employer to avoid a reinstatement order by placing an
employee on leave or a new suspension. An example is SEIU Local 1107 v. Sunrise Hospital,
197 LRRM 2104 (D. Nev. 2013), where two arbitrators held the hospital failed to reinstate two
nurses by placing them on leave pending discipline instead of returning them to work. The Court
confirmed the arbitrators' awards and sanctioned the hospital for frivolously arguing it had
reinstated the nurses.
USPS is also not the first employer to try to avoid reinstating a police officer by arguing
his alleged dishonesty trumped a reinstatement order. For example, in Michigan Ass'n of Police
v. City of Pontiac, 2009 WL 794307 (Mich. 2009), a trial court vacated an arbitrator's award
reinstating an officer whom the city had fired for alleged dishonesty. The Michigan Court of
Appeals reversed the trial court and ordered the city to reinstate the officer. The court held the

29
 city was bound by the CBA and could not avoid the reinstatement order by citing to public
policy concerns. See also Wright St. Univ. v. FOP, 2017 WL 946328 (Ohio App. 2017) (same);
Town of Stratford v. AFSCME, 315 Conn. 49 (Conn, 2014) (same).
Finally, USPS mistakenly relies on the Fourth Circuit decision. [FOP Metro Transit
Police, supra] First, the court told the parties they should go to arbitration, not court, which is
what the Union has done here. Second, that case concerned a third party's decision (the
Maryland licensing board). Here, USPS's actions itself are the alleged impediment, which
cannot be an impediment because USPS is contractually bound to the CBA. Third, unlike in the
WMATA case, the PPOA here does not stipulate that USPS has ever reinstated Mr. Bailey,
temporarily or otherwise. In sum, that decision is procedurally and substantively distinct in
multiple ways and thus not relevant. (Underlining in original.)
In addition to the cases cited in the Union’s argument, the Union furnished the arbitrator with
several other cases of interest:
USWA v Dayton-Walther Corp, 657 F Supp 50 (SD Ind 1986/1987), @ *54:
Despite the Company's agreement to abide by the decision reached through arbitration, it has
not done so. The actions taken by the Company after the issuance of the award, requiring Priest
to submit to a return-to-work physical examination and subsequently, refusing to reinstate him,
plainly disregard and directly contravene the arbitration award. Reinstatement means actually
putting an employee back on the active payroll, returning the employee to a specific job, and
allowing the employee to perform his work responsibilities. Chicago Newspaper Guild v. Field
Enter., Inc., 747 F.2d 1153 (7th Cir.1984); Local 15062, United Steelworkers of Am. v. Rocky
Mountain Div. of Rockwool Indus., 467 F.Supp. 1132 (D.Colo.1979).
Case-Hoyt Corp v GCI, 975 F Supp 231 (WD NY 1997) (Larimer, CJ), @ *232:
I took for granted that by confirming the award it would be self-evident to the Company that it
was required to restore the employees to the same position that they would have been in had the
Company complied with the award as initially directed.
@ *233-*234: Quite frankly, I find no justification for the Company’s failure to comply with
the award. The relief to which the employees are entitled is perfectly clear from the language of
the arbitrator’s award. … Any attempts by Case-Hoyt to further thwart such implementation
will not be viewed favorably by the Court.
Chicago Newspaper Guild v Field Enterprises, 747 F2d 1153 (7th Cir 1984) (parties must present all

30
relevant information, issues, and arguments to arbitrator); see discussion of case in Dayton-Walther,
supra.
III. The USPS Failed to Raise the Issue of Security and Is Precluded from Doing So Now
In seeking to circumvent the arbitrator’s award, the Postal Service relies upon two documents,
the OIG Report, JX 3, and the arbitrator’s opinion, O&A, to conclude that Grievant no longer meets the
security requirements for a PPO. As to the O&A, the notion that an award of reinstatement itself
provides justification for disobeying it is absurd. The purpose of arbitration is to resolve a dispute, not
to ignite a new one.
As the Union has pointed out, the doctrine of industrial double jeopardy precludes the Postal
Service from having a second bite at the apple after the arbitrator’s final decision on the merits. Zayas
v Barcardi Corp, 524 F3d 65, 69; 2008 US App LEXIS 8387 (1st Cir) (“The doctrine of industrial
double jeopardy enshrines the idea that an employee should not be penalized twice for the same
infraction.”).
At no time before–or during–the two-day arbitration hearing did the Postal Service raise the
issue of Grievant being a security risk. This attempt to inject a new issue into the case seems hypocritical,
inasmuch as the Postal Service has railed against what it perceived as Union attempts to introduce new
material. TR @ 9, 13, 312-313. With its brief, the Service submitted a copy of USPS and NALC, Case
No. NC-E-11359, USPS #751379 (Aaron Arb 1984), contained in a computer file conspicuously named
“Post Hearing Aaron Award New Argument.pdf”. Coincidently, the Aaron award contains a cease and
desist order directed against the Postal Service.
From one perspective, the Postal Service is attempting to split its cause of action against
Grievant.12 See also Sunrise Hospital, supra, 2013 WL 5324897 @ *5 (compulsory counterclaims
under Fed R Civ P 13). From another perspective, the security issue seems like an afterthought that is
being used as a pretext to justify contumacy. FPO Metro Transit Police, supra, 780 F3d @ *243 n 5
(“pretextual”).
As to the OIG Report, it has been litigated to death, having been mentioned no fewer than 23
times in the O&A. The doctrines of res judicata and collateral estoppel preclude relitigation of claims
and issues. See Elkouri & Elkouri, How Arbitration Works (ABA/Bloomberg BNA, 8th ed, 2016) @ 8-

12
https://thelawdictionary.org/splitting-a-cause-of-action/

31
57.13
In applying doctrines of preclusion to this case, as the Union has noted, it is important to realize
that the Postal Inspection Service is “THE FEDERAL LAW ENFORCEMENT AND SECURITY
ARM OF THE U.S. POSTAL SERVICE”.14 The Inspection Service’ own attorney attended the entire
arbitration hearing and even interjected comments. TR @ 1, 64, 125, 157, 160, 209, 214. He also
prepared the Postal Service’ response; see Part II.A, supra. For purposes of this case, the Inspection
Service is part and parcel of the Postal Service, and rulings with respect to the Postal Service apply to
the Inspection Service with equal force.
IV. Reinstatement as Used in the Collective Bargaining Agreement Has Its Common Meaning
The suggestion that “Paid admin leave is reinstatement” has no basis in fact or law. When the
parties to the CBA meant “leave”, that word was used expressly, appearing 7 times in the Table of
Contents alone; e.g., “Requests for Leave Without Pay”. JX 1 @ v, vii, viii, xi. The word “leave”
nowhere appears in the paragraph with “reinstatement”. JX 1 @ 48, § 16.01; O&A @ 16. Dictionaries
are unanimous as to the meaning of the latter:
https://thelawdictionary.org/reinstate/
To place again in a former state, condition, or office; to restore to a state or position from which
the object or person had been removed. See Collins v. U. S., 15 Ct CI. 22.
http://www.dictionary.com/browse/reinstate?s=t
to put back or establish again, as in a former position or state: to reinstate the ousted chairman.
https://www.merriam-webster.com/dictionary/reinstate?src=search-dict-box
1: to place again (as in possession or in a former position)
2: to restore to a previous effective state
Dayton-Walther, supra, 657 F Supp @ *54:
The federal district court, adopting the dictionary definition of reinstatement, “1: to place again
(as in possession or in a former position) 2: to restore to a previous effective state,” concluded
that Rockwool, by not permitting Miller to actually return to work at his job, had failed to
comply with the arbitration award ordering reinstatement. 467 F.Supp. at 1137–38 (quoting
Webster's New Collegiate Dictionary (5th Ed. 1977)). Therefore, the court ordered enforcement

13
Although Daniel v Williams, 2014-Ohio-273 (Ct App) is an Ohio case, it contains an informative
discussion of res judicata and collateral estoppel.
14
https://postalinspectors.uspis.gov/

32
 of the award.
The Postal Service has failed to comply with the arbitrator’s award and thus is violating the collective
bargaining agreement in which it agreed to do so.
V. Unless the Postal Service Complies with the Award, the Union May Have to File Suit
What is especially exasperating about this case is the fact that the Postal Service initially agreed
to reinstate Grievant. See O&A, Part V, “Settlement Negotiations”; Affidavit of Jeffrey H. Jacobson,
March 9, 2018. The arbitrator can only confirm what he already has said. He trusts that “[t]his
confirmation should be enough ꞌto summon public spirited, well-meaning litigants to recognize that they
have lost and to act in good faith to carry out the arbitrator's award … .ꞌ” Case-Hoyt, supra, 975 F Supp
@ *233; citations omitted. If that is not the case, then the Union must file suit in federal district court.
In that regard, attention is called to Schaefer v USPS, 254 F Supp 2d 741, 745 n 3 (SD Ohio 2002), in
which the court wrote:
With regard to Plaintiffs claims under § 301 of the LMRA, Defendants note that the proper basis
for Plaintiff's action is the Postal Reorganization Act, 39 U.S.C. § 1208(b), which authorizes
suits alleging violations of the contracts between the USPS and postal employee unions.
Defendants further note, however, that claims under § 1208(b) are analogous to those under §
301 of the LMRA, and therefore cases construing one statute are instructive in construing the
other. Thus, substantively, there is little difference between claims under § 1208(b) and § 301.
Section 1208 of Title 39 of the United States Code addresses both jurisdiction and venue and
provides in pertinent part:
(b) Suits for violation of contracts between the Postal Service and a labor organization
representing Postal Service employees, or between any such labor organizations, may be
brought in any district court of the United States having jurisdiction of the parties, without
respect to the amount in controversy.
(c) A labor organization and the Postal Service shall be bound by the authorized acts of their
agents. Any labor organization may sue or be sued as an entity and in behalf of the employees
whom it represents in the courts of the United States.
(d) For the purposes of actions and proceedings by or against labor organizations in the district
courts of the United States, district courts shall be deemed to have jurisdiction of a labor
organization (1) in the district in which such organization maintains its principal offices, or (2)
in any district in which its duly authorized officers or agents are engaged in representing or

33
 acting for employee members.
The arbitrator notes that Union counsel, the Postmaster General, and the Postal Inspection
Service are all located in Washington, DC, so that it might be convenient to litigate there. Counsel will,
of course, have to make an independent judgment. Justice in a Washington district court might prove
swift and sure. See USPS v APWU, 553 F3d 686 (DC Cir 2009).
ORDER
The United States Postal Service is ordered to cease and desist its efforts to avoid compliance
with the arbitrator’s award of March 19, 2018. Any putative rulings about Grievant not meeting the
security requirements of a Postal Police Officer, based upon the OIG’s Report, JX 3, and the arbitrator’s
award of March 19, 2018 are null and void, and any documentation to that effect is to be removed from
Grievant’s personnel files by the Postal Service. The arbitrator retains jurisdiction until implementation
of the award is complete or a court orders otherwise.

34
 368 F.Supp.3d 1136 (2019)

POSTAL POLICE OFFICERS ASSOCIATION, Plaintiff,

v.
UNITED STATES POSTAL SERVICE, Defendant.
Case No. 18-11457.

United States District Court, E.D. Michigan, Southern Division, Southern Division.

Signed March 25, 2019.

1138*1138 Arlus Jeremiah Stephens, Murphy Anderson PLLC, Washington, DC, David R.
Radtke, McKnight, Canzano, Smith, Radtke & Brault, P.C., Royal Oak, MI, for Plaintiff.

Jennifer L. Newby, Detroit, MI, for Defendant.

OPINION AND ORDER REGARDING CROSS-

1139*1139

MOTIONS TO CONFIRM OR VACATE ARBITRATION

AWARDS
MARIANNE O. BATTANI, United States District Judge.

I. INTRODUCTION
The Plaintiff Postal Police Officers Association commenced this action in this Court on May
8, 2018, seeking to confirm and enforce a pair of arbitration awards through which arbitrator
E. Frank Cornelius ordered the Defendant United States Postal Service to reinstate Postal
Police Officer ("PPO") Geoff Bailey and to cease and desist from efforts to avoid complying
with the arbitrator's reinstatement order. The Plaintiff labor organization seeks this relief
under the Postal Reorganization Act ("PRA"), 39 U.S.C. § 1208(b), and section 9 of the
Federal Arbitration Act ("FAA"), 9 U.S.C. § 9. Defendant has asserted a counterclaim to
vacate portions of the two arbitration awards, alleging that the arbitrator acted outside his
authority in issuing these awards.

Two motions presently are pending before the Court. First, Plaintiff seeks an order
confirming the arbitration awards and dismissing Defendant's counterclaim. In support of its
motion, Plaintiff observes that the collective bargaining agreement ("CBA") between the
Plaintiff labor organization and Defendant provides for binding arbitration of employee
grievances and for discharge only for just cause, and it contends that the arbitrator plainly
acted pursuant to the broad authority conferred under the CBA when he determined that the
discharge of PPO Bailey was excessive, and that this officer instead should be suspended
without pay for a year. Plaintiff further asserts that when Defendant responded to the
arbitrator's initial award by revoking PPO Bailey's security clearance — a decision that
rendered him ineligible to return to his former position — the arbitrator again acted within his

35
authority by ordering Defendant to cease and desist from taking actions that, in the
arbitrator's view, amounted to an "attempted end run around" his initial award of
reinstatement without back pay. (Dkt. 1, Complaint, Ex. C, 4/30/2018 Arbitration Order at 1.)

Next, Defendant has filed a cross-motion for summary judgment, arguing that it is entitled
as a matter of law to an order vacating the arbitration awards to the extent that the arbitrator
seeks to override the revocation of PPO Bailey's security clearance or require that this
officer be returned to his former position without the requisite security clearance. In support
of this motion, Defendant asserts that nothing in the CBA confers authority on the arbitrator
to review a decision by the Chief Postal Inspector to revoke a security clearance. Relatedly,
Defendant contends that nothing in the CBA reflects its agreement to arbitrate the question
whether an security clearance should be issued or maintained. Accordingly, Defendant
submits that the arbitrator acted outside of his authority when he attempted to override the
revocation of PPO Bailey's security clearance, and that this order therefore must be
vacated.

On October 11, 2018, the Court heard oral argument on the parties' cross-motions. For the
reasons set forth below, the Court GRANTS Plaintiff's motion to confirm the arbitration
awards and for summary judgment on Defendant's counterclaim, and DENIES Defendant's
cross-motion to vacate portions of the arbitrator's awards.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. The Facts Underlying the Arbitrator's Awards
Postal Police Officer ("PPO") Geoff Bailey served as a police officer for the
Defendant 1140*1140 United States Postal Service, and was based in Detroit. In January of
2014, a man crashed a rented U-Haul van into the lobby of a post office branch in
downtown Detroit, and PPO Bailey and another officer, PPO Michael Jefferson, were
dispatched to the scene. PPO Jefferson prepared a report of the incident, and the driver of
the van was charged with a federal crime.

In December of 2015, PPO Bailey applied for a promotion to a supervisory position. In

support of this application, PPO Bailey cited the January 2014 incident report as an
example of his ability to communicate in writing. About a month later, an Assistant United
States Attorney ("AUSA") interviewed PPO Bailey in preparation for the forthcoming trial of
the U-Haul driver, and PPO Bailey stated that he had not, in fact, completed a report of the
January 2014 incident. Rather, he explained that he had started to prepare a report, but
then had deleted this draft upon learning that PPO Jefferson had already completed an
incident report.

Based on the apparent misstatement in PPO Bailey's application for a promotion,

Defendant commenced an investigation through the Office of the Inspector General ("OIG"),
and the officer was placed on administrative leave. Two OIG agents interviewed PPO Bailey
in June of 2016, and he stated (i) that he could not remember whether or not he wrote a
report of the January 2014 incident, and (ii) that he "would have to check the record" to

36
determine whether he had prepared such a report. (Complaint, Ex. B, 3/19/2018 Arbitration
Award at 7.)

On March 10, 2017, Defendant issued a notice of removal, advising PPO Bailey that he
would be discharged effective April 10, 2017 for making an intentional misrepresentation on
his application for a promotion, and for making false statements during the June 2016 OIG
interview. In response, the Plaintiff Postal Police Officers Association filed a grievance on
behalf of PPO Bailey challenging Defendant's decision to discharge him.

B. The Arbitration Proceedings and Awards

When the parties failed to resolve the grievance arising from PPO Bailey's discharge, the
matter proceeded to arbitration. After two days of hearings, arbitrator E. Frank Cornelius
issued his decision on March 19, 2018. The arbitrator found that Defendant failed to
establish the first ground for PPO Bailey's discharge — i.e., that the officer had made an
intentional misstatement in his application for a promotion — but he upheld Defendant's
determination that PPO Bailey had provided false information during his OIG interview. The
arbitrator then concluded that discharge was too severe a penalty for PPO Bailey's
violation, and that the officer instead should be reinstated without back pay — a
determination tantamount to a one-year suspension without pay. At the conclusion of his
decision, the arbitrator stated that he would retain jurisdiction in order to address any issues
regarding the implementation of his award.

Following this arbitration award, Defendant immediately placed PPO Bailey on

administrative leave and directed him not to report to work. Shortly thereafter, Defendant
notified PPO Bailey in an April 6, 2018 letter that in light of the OIG investigation, the
agency had determined that he "no longer me[]t the security requirements of the position" of
postal police officer. (4/30/2018 Arbitration Order at 2.) In a subsequent April 16, 2018 letter
to the Inspector in Charge at the Detroit Post Office, Defendant further explained that PPO
Bailey's security clearance had been revoked as a result of his intentional
false 1141*1141 statements during the OIG investigation, and this letter expressly cited the
arbitrator's March 19 decision as support for this determination. (Id. at 2-3.) PPO Bailey was
advised that he could appeal the revocation of his security clearance to the Inspector in
Charge, but this appeal was denied in a letter dated June 21, 2018. (See Dkt. 16,
Defendant's Cross-Motion for Summary Judgment, Ex. 3.)

In response to Defendant's revocation of PPO Bailey's security clearance, Plaintiff returned

to the arbitrator and requested assistance in implementing his March 19 award of
reinstatement without back pay. In Plaintiff's view, Defendant was bound under the parties'
collective bargaining agreement to abide by the arbitrator's award, and was improperly
seeking to circumvent that award by revoking PPO Bailey's security clearance as a means
to prevent his reinstatement.

On April 30, 2018, the arbitrator issued an order reaffirming his earlier award and ordering
Defendant to "cease and desist its attempted end run around the award and the collective
bargaining agreement." (4/30/2018 Arbitration Order at 1.) As support for this decision, the
arbitrator observed that Defendant had not argued in the initial arbitration proceeding that
PPO Bailey was a security risk, and he found that Defendant was precluded under the

37
"doctrine of industrial double jeopardy" and principles of collateral estoppel from raising this
issue after he had reached a "final decision on the merits" as to the propriety of PPO
Bailey's discharge. (Id. at 8.) The arbitrator further reasoned that the term "reinstatement"
as used in the parties' collective bargaining agreement had a common and accepted
meaning, and he determined that Defendant had failed to comply with his reinstatement
award by placing PPO Bailey on administrative leave rather than restoring him to his prior
position as a postal police officer. (Id. at 9-10.)

According to Plaintiff, Defendant has continued to refuse to comply with the arbitrator's
award of reinstatement. In particular, the president of the Plaintiff labor organization, James
Bjork, states in an affidavit that after the arbitrator issued his April 30 order, PPO Bailey has
been (i) required to "report to his job location each `work day'" and "sign-in each day as a
building visitor," and then (ii) led by an armed escort "to a nearly empty, windowless office
where he was required to sit for eight hours/day" without "performing any duties
whatsoever." (Dkt. 12, James Bjork 7/17/2018 Decl. at ¶ 6.) More recently, Defendant
advised PPO Bailey that as of July 16, 2018, he should no longer come to the office, but
instead should "`report in' by telephone." (Id. at ¶ 7.)

C. The Relevant Terms of the Parties' Collective

Bargaining Agreement
The collective bargaining agreement ("CBA") between the Plaintiff labor organization and
Defendant establishes a multi-step procedure for handling employee grievances.
(See Complaint, Ex. A, CBA art. 15.) If a grievance is not resolved at the earlier stages of
this process, a party may submit a request for arbitration, and "[t]he arbitrator's decision
shall be final and binding." (CBA § 15.05(b).) Similarly, "[a]ny dispute as to arbitrability may
be submitted to the arbitrator and be determined by the arbitrator," and "[t]hat determination
shall be final and binding." (CBA § 15.05(e).) The CBA emphasizes, however, that "[a]ll
decisions of the arbitrator shall be limited to the terms and provisions of this Agreement,
and in no event may the terms and provisions of this Agreement be altered, amended, or
modified by the arbitrator." (CBA § 15.05(b).)

1142*1142 The CBA provides that "[n]o PPO may be disciplined or discharged except for just
cause." (CBA § 16.01.) Moreover, "[a]ny such discipline or discharge shall be subject to the
Grievance-Arbitration Procedure provided for in [the CBA], which could result in
reinstatement and restitution, including back pay." (Id.)

To the extent that Defendant has issued "handbooks, manuals [or] published regulations"
that "directly relate to wages, hours or working conditions," the CBA states that any terms in
these documents or regulations that "apply to PPOs covered by this Agreement[ ] shall
contain nothing that conflicts with this Agreement and shall be continued in effect." (CBA §
19.01.) In addition, Defendant has "the right to make changes" to these extrinsic materials,
but only to the extent that these revisions "are not inconsistent with this Agreement and ...
are fair, reasonable, and equitable." (Id.)

III. STANDARD OF REVIEW

38
In the first of the two motions pending before the Court, the Plaintiff labor organization asks
the Court to confirm the arbitrator's March 19, 2018 award and subsequent April 30, 2018
order. As Plaintiff observes, arbitration of postal employee grievances is governed by 39
U.S.C. § 1206(b), which authorizes the Defendant Postal Service and bargaining
representatives such as Plaintiff to enter into collective bargaining agreements that include
"procedures for resolution by the parties of grievances and adverse actions arising under
the agreement, including procedures culminating in binding third-party arbitration." The
Sixth Circuit has explained that Congress enacted this and other provisions of the Postal
Reorganization Act ("PRA") in order to "bring postal labor relations within the same structure
that exists for nationwide enterprises in the private sector." Malone v. United States Postal
Service, 526 F.2d 1099, 1103-04 (6th Cir. 1975) (internal quotation marks and citation
omitted). Accordingly, the courts have applied the case law arising under the analogous
provisions of the Labor Management Relations Act ("LMRA") — including, most notably, §
301(a) of the LMRA, 29 U.S.C. § 185(a) — in addressing suits to enforce collective
bargaining agreements between the United States Postal Service and labor organizations
representing postal employees. See Lawson v. Truck Drivers, Chauffeurs & Helpers, Local
Union 100, 698 F.2d 250, 255 (6th Cir. 1983).

Of particular relevance here, in determining whether the arbitration awards identified by

Plaintiff should be enforced, the Court is guided by the standards adopted in analogous
cases decided under § 301 of the LMRA. See Pittsburgh Metro Area Postal Workers Union
v. United States Postal Service, 938 F.Supp.2d 555, 558 (W.D. Pa. 2013). The Sixth Circuit
has emphasized that this task is governed by "one of the narrowest standards of judicial
review in all of American jurisprudence." Lattimer-Stevens Co. v. United Steelworkers of
America, AFLCIO, District 27, Sub-District 5, 913 F.2d 1166, 1169 (6th Cir. 1990). "Because
the parties have contracted to have disputes settled by an arbitrator chosen by them rather
than by a judge, it is the arbitrator's view of the facts and of the meaning of the contract that
they have agreed to accept." United Paperworkers International Union, AFL-CIO v. Misco,
Inc., 484 U.S. 29, 37-38, 108 S.Ct. 364, 370, 98 L.Ed.2d 286 (1987). Thus, "the courts are
not authorized to reconsider the merits of an [arbitrator's] award," and "as long as the
arbitrator is even arguably construing or applying the contract and acting within the scope of
his authority, that a court is convinced he committed serious error does 1143*1143 not suffice
to overturn his decision." Misco, 484 U.S. at 36, 38, 108 S.Ct. at 370-71.

As for Defendant's cross-motion, Defendant argues in this motion that the arbitrator's award
and subsequent order must be vacated to the extent that they purport to override the
revocation of PPO Bailey's security clearance or direct Defendant to reinstate this officer to
his former position without the requisite security clearance. In Defendant's view, the
grounds for vacating this aspect of the arbitrator's decisions are established as a matter of
law, and the Court therefore may award summary judgment in Defendant's favor on its
counterclaim to vacate the relevant portions of the arbitrator's award and order. This cross-
motion is governed by the familiar standards of Fed. R. Civ. P. 56(a), under which 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." The parties here agree upon
all of the material facts bearing on their dispute, so it remains only to determine which party
should prevail under the legal standards governing the Court's review of the arbitrator's
decisions.

39
IV. ANALYSIS
As the parties recognize in their briefing on their cross-motions, a number of matters are not
in dispute here. First, Defendant acknowledges that "the arbitrator had authority to resolve
the grievance over PPO Bailey's misconduct," and to order this officer's reinstatement as
relief from a penalty that the arbitrator deemed too severe. (Dkt. 17, Defendant's Response
Br. at 1.) In addition, Defendant states that it "does not rely on public policy arguments to
demonstrate [that] the arbitrator's award is invalid." (Id.) Rather, the parties' disagreement is
focused on the arbitrator's decision in a supplemental April 30, 2018 order to view
Defendant's post-arbitration revocation of PPO Bailey's security clearance as an "attempted
end run around" the arbitrator's initial award of reinstatement. (4/30/2018 Arbitration Order
at 1.) This disagreement, in turn, leaves two legal issues for the Court to resolve: (i) whether
the parties' disagreement about the arbitrator's supplemental order is a dispute over
arbitrability that itself was committed to the arbitrator for his final and binding resolution, and
(ii) whether the arbitrator acted within the scope of the authority conferred by the parties'
CBA in issuing his supplemental order. Each of these issues is addressed in turn below.

A. The Arbitrator's Supplemental April 30, 2018 Order

Incorporates a Decision on Arbitrability That the
Arbitrator Was Authorized to Render Under the Terms
of the Parties' Collective Bargaining Agreement.
1. The Parties' Positions
As Plaintiff observes, parties may agree by contract not only to arbitrate disputes that arise
under the contract, but also to arbitrate disputes over arbitrability — that is, questions about
the scope of an arbitrator's authority to resolve a given dispute. The CBA at issue here
plainly reflects such an agreement, providing that "[a]ny dispute as to arbitrability may be
submitted to the arbitrator and be determined by the arbitrator," and that such
"determination[s] shall be final and binding." (CBA § 15.05(e).) In Plaintiff's view, the
question of the arbitrator's authority to issue his supplemental April 30, 2018 order was
submitted for determination by the arbitrator himself in accordance with this CBA provision,
by virtue of Defendant's election to argue before the arbitrator that the revocation of PPO
Bailey's security clearance was not arbitrable. Given the parties' 1144*1144 agreement to
arbitrate the issue of arbitrability, Plaintiff contends that the arbitrator's decision on the
scope of his authority to issue his supplemental order is final and binding on the parties, and
may not be disturbed by the Court except under the very narrow standard set forth earlier
for overturning an arbitrator's decision.

In response, Defendant insists that it "never agreed" that the arbitrator had the authority to
resolve any question as to the revocation of PPO Bailey's security clearance. (Defendant's
Response Br. at 21.) Rather, it maintains that it "only agreed to arbitration to resolve PPO
Bailey's grievance for his removal based on his misconduct." (Id.) In Defendant's view, the
arbitrator exceeded this mandate by reaching out to address a security clearance
determination that occurred after, and wholly separate from, the decision to discharge PPO

40
Bailey for misconduct. To be sure, Defendant acknowledges that it argued before the
arbitrator that "the issue of revocation of PPO Bailey's security clearance was outside the
scope of the Arbitration award and not before the Arbitrator." (Id. (internal quotation marks
and citation omitted).) Yet, it denies that this argument operated as an assent to the
arbitrator's authority to determine the arbitrability of the parties' dispute over the revocation
of PPO Bailey's security clearance. Nor does Defendant accept that by making this
argument, it waived its opportunity to seek anything but the most deferential judicial review
of the arbitrator's decision in his supplemental order to address (and overturn) Defendant's
revocation of PPO Bailey's security clearance.

2. Applicable Law
As explained by the Supreme Court, "[j]ust as the arbitrability of the merits of a dispute
depends upon whether the parties agreed to arbitrate that dispute, so the question `who has
the primary power to decide arbitrability' turns upon what the parties agreed
about that matter." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943, 115 S.Ct.
1920, 1923, 131 L.Ed.2d 985 (1995) (citations omitted) (emphasis in original). If "the parties
agree to submit the arbitrability question itself to arbitration," then the courts must "give
considerable leeway" to the arbitrator's resolution of this issue, and may overturn this
decision "only in certain narrow circumstances." First Options, 514 U.S. at 943, 115 S.Ct. at
1923. "When deciding whether the parties agreed to arbitrate a certain matter (including
arbitrability), courts generally ... should apply ordinary state-law principles that govern the
formation of contracts." 514 U.S. at 944, 115 S.Ct. at 1924.

3. By Electing to Challenge the Arbitrator's Authority

to Address the Revocation of PPO Bailey's Security
Clearance, Defendant Raised an Issue of Arbitrability
that the Arbitrator Resolved in a Final and Binding
Decision.
As noted earlier, the issues that the Court must decide here are limited. The principal point
of disagreement between the parties concerns the authority of arbitrator E. Frank Cornelius
to issue his April 30, 2018 order. In this order, the arbitrator (i) found that Defendant had
"failed and refused" to comply with the arbitrator's earlier March 19, 2018 award, in which
Defendant was ordered to reinstate PPO Bailey without back pay, and (ii) directed
Defendant to "cease and desist its attempted end run around the [March 19] award and the
collective bargaining agreement" through its decision to revoke PPO Bailey's security
clearance. (4/30/2018 Arbitration Order at 1.) Yet, before the Court may inquire into the
arbitrator's authority to issue the April 30 order, it first must 1145*1145 resolve a threshold
question raised and debated by the parties: namely, whether the parties agreed that this
issue of arbitrability itself was to be resolved by the arbitrator in the first instance. If so, the
narrow standard that governs this Court's review of the arbitrator's award and order would
apply as well to the arbitrator's determination that he was authorized under the CBA to grant
the relief set forth in his April 30 order.

41
To resolve this threshold question, the Court begins with the language of the CBA itself.
This inquiry is straightforward, because the CBA expressly provides that "[a]ny dispute as to
arbitrability may be submitted to the arbitrator and be determined by the arbitrator." (CBA §
15.05(e).) Through this provision, the parties plainly agreed that they "may" submit the issue
of arbitrability to the arbitrator. It remains only to ask whether they actually elected to do so
in this case.

This question likewise is easily resolved. The Plaintiff labor representative obviously
believed that the arbitrator had the authority to address Defendant's alleged lack of
compliance with the March 19 award of reinstatement, given that it returned to the arbitrator
and "request[ed] his assistance in implementation of the award." (4/30/2018 Arbitration
Order at 3.) Moreover, as Plaintiff pursued this course of action, it was fully aware of
Defendant's position that its post-arbitration decision to revoke PPO Bailey's security
clearance was not a matter that the parties had agreed to arbitrate. Plaintiff expressly
disagreed with this contention, stating in a submission to the arbitrator that if Defendant
wished to remove this matter from the arbitrator's purview, "it could have bargained for that
in the CBA." (Id. at 6.) Under this record, it is clear that Plaintiff invited the arbitrator to
decide the question of arbitrability at issue here: namely, whether the arbitrator had the
authority to address Defendant's decision to revoke PPO Bailey's security clearance.

It is equally evident that Defendant did so. In response to Plaintiff's request that the
arbitrator take action to implement his March 19 award, Defendant submitted an April 23,
2018 letter to the arbitrator stating, in pertinent part, that Plaintiff's challenge to the
revocation of PPO Bailey's security clearance was "outside the scope of the Arbitration
award" and was not properly "before the Arbitrator." (Defendant's Response, Ex. 4,
Defendant's 4/23/2018 Statement at 2, 3.) Indeed, Defendant expressly points to these
excerpts of its April 23 letter to refute an argument that it views Plaintiff as making in its
motion — i.e., that Defendant waived its arbitrability challenge by failing to "raise the issue
of the arbitrator's lack of authority to address security clearance determinations during
arbitration." (Defendant's Response Br. at 21.) Regardless of whether Defendant addressed
this issue of arbitrability willingly, or out of a belief that it should or must do so in response to
Plaintiff's argument on this subject, it nonetheless submitted a statement to the arbitrator
setting forth its position on a "dispute as to arbitrability," (CBA § 15.05(e)). Under the CBA,
the submission of this issue by the parties empowered the arbitrator to resolve this issue,
and the arbitrator's determination on this point was deemed "final and binding." (Id.)

To be sure, the Supreme Court has recognized that "merely arguing the arbitrability issue to
an arbitrator does not indicate a clear willingness to arbitrate that issue, i.e., a willingness to
be effectively bound by the arbitrator's decision on that point." First Options, 514 U.S. at
946, 115 S.Ct. at 1925. More generally, the Court has cautioned that "[c]ourts should not
assume that the parties agreed to arbitrate 1146*1146 arbitrability unless there is clear and
unmistakable evidence that they did so." 514 U.S. at 944, 115 S.Ct. at 1924 (internal
quotation marks, alterations, and citations omitted). In this case, however, the parties
entered into an agreement, the CBA, that expressly allows for questions of arbitrability to be
heard and resolved by an arbitrator. See Amway Global v. Woodward, 744 F.Supp.2d 657,
664 (E.D. Mich. 2010) ("[W]here parties have included language in their arbitration
agreement authorizing the arbitrator to decide issues of arbitrability, the courts have held
that such a provision serves as the requisite `clear and unmistakable evidence' under First

42
Options that the parties agreed to arbitrate arbitrability." (collecting cases)). Although this
CBA provision is permissive, and not mandatory, the arguments advanced by the parties in
their submissions to the arbitrator evidenced their understanding that the arbitrator would —
or, at the very least, could — address the issue of arbitrability as he decided whether to
grant Plaintiff's request for assistance in implementing the arbitrator's March 19
award. See Amway Global, 744 F.Supp.2d at 664-65 (finding that permissive language in
the arbitration agreement in that case was sufficient to demonstrate the parties' intent to
authorize the arbitrator to decide issues of arbitrability).

Because the parties agreed to submit their arbitrability dispute to the arbitrator, and
because the arbitrator's decision on this issue is deemed "final and binding" under the CBA,
this decision "is entitled to a deferential review." Cleveland Electric Illuminating Co. v. Utility
Workers Union of America, Local 270, 440 F.3d 809, 814 (6th Cir. 2006); see also First
Options, 514 U.S. at 943, 115 S.Ct. at 1924 (holding that "a court must defer to an
arbitrator's arbitrability decision when the parties submitted that matter to arbitration").
Under this deferential standard, "[t]he arbitrator's decision will not be disturbed unless if fails
to draw its essence from the collective bargaining agreement." Cleveland Electric, 440 F.3d
at 814 (internal quotation marks and citations omitted).

In its submissions to the Court, Defendant has not truly endeavored to explain how the
arbitrator's decision on arbitrability could be set aside under the deferential standard that
governs the Court's review of this decision. In an opinion accompanying his April 30 order,
the arbitrator observed that his March 19 award included language expressly retaining his
"jurisdiction regarding implementation of the award." (4/30/2018 Arbitration Order at 2
(internal quotation marks omitted).) The arbitrator then referenced a letter he received from
Plaintiff's counsel "requesting his assistance in implementation of the [March 19] award,"
and he characterized this letter as raising "implementation issues" that he then proceeded
to address and resolve. (Id. at 2-3.) In the course of this decision, the arbitrator
acknowledged Defendant's position that the revocation of PPO Bailey's security clearance
was not a matter within the scope of the dispute presented for the arbitrator's determination.
(See id. at 5.) Nonetheless, the arbitrator elected to reach this issue, finding that Defendant
had improperly revoked PPO Bailey's security clearance as a means to avoid complying
with his March 19 award. (See id. at 8-11.)

As confirmed by Sixth Circuit precedent, the arbitrator plainly had the authority to ensure
that the parties complied with and implemented his March 19 award. See Totes Isotoner
Corp. v. International Chemical Workers Union Council/UFCW Local 664C, 532 F.3d 405,
413 (6th Cir. 2008) (citing prior Sixth Circuit and district court decisions as "stand[ing] for the
proposition that a supplemental 1147*1147 award `arguably construes' a collective
bargaining agreement where the supplemental award seeks to clarify or enforce an original
award that interpreted the relevant agreement"). Indeed, such a grant of authority arises
implicitly from the parties' agreement to resolve their disputes through final and binding
arbitration. See International Association of Machinists & Aerospace Workers v. Tennessee
Valley Authority, 155 F.3d 767, 772 (6th Cir. 1998). Although Defendant disagrees with the
substance of the arbitrator's determination of what "implementation" of his March 19 award
entailed — a question to which the Court turns below — it fails to suggest how the
arbitrator's threshold decision to reach issues of implementation in his April 30 order did not
draw its essence from the CBA. Accordingly, to the extent that the arbitrator resolved

43
questions of arbitrability in his April 30 order, the arbitrator's decisions on these matters
were final and binding on the parties, and Defendant has not identified a basis for the Court
to set aside these determinations under the deferential standard that governs this inquiry.

B. The Arbitrator's Substantive Rulings in His April 30

Order Withstand Scrutiny Under the Deferential
Standard of Review that Governs Here.
1. The Parties' Positions
Having resolved the question whether the arbitrator was authorized to decide the threshold
issue of arbitrability in his April 30 order, the Court turns to the substance of the arbitrator's
rulings in that order. In Plaintiff's view, the Court's inquiry is at an end once it concludes, as
it should, that the arbitrator's substantive rulings were a product of the authority conferred
under the CBA. As Plaintiff observes, the CBA provides that disciplinary action and
discharge are subject to a grievance procedure, including arbitration, and it authorizes the
arbitrator to award the relief of reinstatement. It follows, according to Plaintiff, that once the
arbitrator ordered the reinstatement of PPO Bailey, he was entitled to determine whether
Defendant had complied with this award. Plaintiff further contends that this authority
encompassed the power to review Defendant's revocation of PPO Bailey's security
clearance, where the arbitrator deemed it necessary to do so in order to implement his
order of reinstatement.

In response, Defendant largely reiterates its assertion that the arbitrator exceeded his
authority under the CBA by reaching out to address a security clearance determination that
occurred after, and wholly separate from, the decision to discharge PPO Bailey for
misconduct. According to Defendant, security clearance determinations are governed by
provisions in an Administrative Support Manual ("ASM") that vest the Chief Postal Inspector
with the sole authority to revoke a security clearance. Defendant further points to language
in the CBA that incorporates by reference the ASM and other handbooks, manuals, and
Postal Service regulations, except to the extent that the terms of these materials conflict
with the CBA. In Defendant's view, nothing in the CBA conflicts with or overrides the
authority of the Chief Postal Inspector to revoke a security clearance, and it follows that the
arbitrator acted outside the scope of his authority under the CBA by purporting to set aside
the decision to revoke PPO Bailey's security clearance.

2. Applicable Law
As stated earlier, Defendant's challenge to the arbitrator's March 19, 2018 award and
subsequent April 30, 2018 order is governed by "one of the narrowest standards of judicial
review in all of American 1148*1148 jurisprudence." Lattimer-Stevens, 913 F.2d at 1169.
Specifically, "the courts are not authorized to reconsider the merits of an [arbitrator's]
award," and "as long as the arbitrator is even arguably construing or applying the contract
and acting within the scope of his authority, that a court is convinced he committed serious
error does not suffice to overturn his decision." Misco, 484 U.S. at 36, 38, 108 S.Ct. at 370-

44
71. Regarding the "scope of authority" prong of this inquiry, the Court has already
determined that the parties empowered the arbitrator to decide this question of arbitrability,
and that Defendant has failed to identify any basis for overturning the arbitrator's final and
binding decision on this point. Accordingly, the sole remaining issue is whether the
arbitrator's award and order draw their essence from the CBA, or instead reflect the
arbitrator's attempt to "dispense his own brand of industrial justice." Brotherhood of
Locomotive Engineers & Trainmen v. United Transportation Union, 700 F.3d 891, 900 (6th
Cir. 2012) (internal quotation marks, alteration, and citation omitted).[1]

As the Sixth Circuit has explained, an arbitrator's decision "draws its essence" from the
parties' contract so long as the arbitrator was "arguably construing or applying the
contract." Michigan Family Resources, Inc. v. Service Employees International Union Local
517M, 475 F.3d 746, 752 (6th Cir. 2007) (internal quotation marks and citations omitted).
"[I]n most cases, it will suffice to enforce the award that the arbitrator appeared to be
engaged in interpretation, and if there is doubt [the courts] will presume that the arbitrator
was doing just that." Michigan Family Resources, 475 F.3d at 753. In "the rare case,"
however, an arbitrator's decision may be "so ignorant of the contract's plain language" or
"so untethered to the terms of the agreement" as to "make implausible any contention that
the arbitrator was construing the contract." 475 F.3d at 753 (internal quotation marks,
alteration, and citations omitted). The Sixth Circuit has emphasized that "[t]his view of the
`arguably construing' inquiry no doubt will permit only the most egregious awards to be
vacated." 475 F.3d at 753.

3. The Arbitrator's April 30 Order Draws Its Essence

from the Collective Bargaining Agreement, and Thus
Is Entitled to Enforcement.
The parties agree that under their CBA, the arbitrator was granted the authority to hear and
resolve Plaintiff's challenge to the discharge of PPO Bailey, and to award the relief of
reinstatement as he deemed appropriate. They part ways, however, in their understandings
of the arbitrator's supplemental April 30, 2018 order. In Plaintiff's view, the arbitrator did no
more than exercise the jurisdiction he retained to ensure that his March 19, 2018 award was
implemented, and he then determined, upon invoking this jurisdiction, that Defendant had
not complied with the order of reinstatement set forth in his March 19 award. Defendant, in
contrast, contends that the arbitrator reached out in his April 30 order to address a new
development — i.e., the revocation of PPO Bailey's security clearance — that was (i)
separate and independent from the matters brought before the arbitrator, and (ii) the
product of an exercise of authority by the Chief Postal Inspector that the
arbitrator 1149*1149 was powerless to review or overturn.

As observed by Plaintiff, the arbitrator's April 30 order certainly appears on its face to be the
product of contract interpretation. As stated in that order, when Plaintiff's counsel wrote to
the arbitrator "requesting his assistance in implementation of the [March 19] award," Plaintiff
characterized the parties' dispute as "concern[ing] [Defendant's] refusal to reinstate [PPO]
Bailey to his position." (4/30/2018 Arbitration Order at 3.) Defendant advanced a similar
view of the parties' dispute, stating in a submission to the arbitrator that "the parties
disagree ... on the definition of `reinstated,'" and discussing a case that purportedly

45
bolstered its contention that PPO Bailey had in fact been reinstated. (Defendant's
Response, Ex. 4, Defendant's 4/23/2018 Statement at 1-2.) In keeping with this shared
understanding of the issue before him, the arbitrator proceeded to consider whether PPO
Bailey had been reinstated as that term is used in the CBA, and he answered this question
in the negative. (4/30/2018 Arbitration Order at 9-10.) To be sure, the arbitrator identified
other grounds for his decision, including the doctrines of issue preclusion and industrial
double jeopardy. (See id. at 8-9.) Yet, even assuming the arbitrator could be viewed as
straying beyond his authority under the CBA by invoking these procedural doctrines — an
assertion Defendant notably does not make, and for which there is no evident support in the
case law — his April 30 order plainly rests in part on his interpretation of "reinstatement" as
this term is used in the CBA, and this suffices to establish that his order drew its essence
from the parties' contract.

The arbitrator's April 30 order also is entitled to enforcement as an appropriate exercise of

his authority to see that his earlier March 19, 2018 award was properly implemented. As
discussed earlier, the Sixth Circuit has recognized that a supplemental award, such as the
April 30 order at issue here, "`arguably construes' a collective bargaining agreement where
the supplemental award seeks to clarify or enforce an original award that interpreted the
relevant agreement." Totes Isotoner Corp., 532 F.3d at 413; see also International
Association of Machinists, 155 F.3d at 772 (holding that an arbitrator acted within the scope
of its authority by issuing a supplemental award that served as "an enforcement of the
[arbitrator's] initial resolution" of the issue in dispute). There is no dispute here that the
arbitrator's initial March 19 award appropriately rested upon an interpretation of the parties'
CBA. Hence, his April 30 order enforcing this award in the face of Defendant's alleged non-
compliance likewise drew its essence from the CBA.

Defendant seeks to avoid this result on two grounds, but neither is persuasive. First,
although Defendant acknowledges that the arbitrator was empowered to address the issue
of reinstatement, it argues that the CBA carves out security clearances as a matter that is
committed to the sole discretion of the Chief Postal Inspector, and thus lies beyond the
authority granted to the arbitrator. In particular, Defendant points to a provision in its
Administrative Support Manual ("ASM") stating that "[t]he Chief Postal Inspector or
designee is responsible for the adjudication of all security clearances and suitability
background investigations for Postal Service Personnel." (Dkt. 16, Defendant's Cross-
Motion for Summary Judgment, Ex. 1, ASM § 272.12.) Under another ASM provision, an
employee "may request reconsideration of the denial of a clearance by sending a letter with
supporting documentation to the Inspector in Charge Security and Crime Prevention
Group." (ASM § 272.33.) Thus, the ASM both (i) 1150*1150 confers authority upon the Chief
Postal Inspector to grant, deny, or revoke security clearances, and (ii) provides a
mechanism for administrative review of any decision to deny a security clearance. [2]

In Defendant's view, the parties' CBA incorporates these provisions of the ASM, and
thereby precludes arbitration of disputes arising from the revocation of an employee's
security clearance. Specifically, the CBA evidences the parties' agreement to give
"continued ... effect" to "[t]hose parts of all handbooks, manuals and published regulations
of the Postal Service that directly relate to wages, hours or working conditions, as they
apply to PPOs covered by this Agreement." (CBA § 19.01.) Defendant argues that
"[b]ecause the CBA, through the ASM, reserves security clearance determinations to the

46
Chief Postal Inspector, PPO Bailey does not have a `right' to a security clearance under the
CBA, and it falls outside the scope of a grievable issue." (Defendant's Cross-Motion for
Summary Judgment, Br. in Support at 12.)[3]

As Plaintiff observes in response, however, the CBA gives "continued ... effect" to the ASM
and other handbooks, manuals, and regulations only to the extent that they "contain nothing
that conflicts with this Agreement." (CBA § 19.01.) Similarly, Plaintiff points to a provision in
the PRA stating that Postal Service officers and employees are subject to various civil
service laws — including a statute authorizing the revocation of security clearances, see 5
U.S.C. § 7532 — "except to the extent of any inconsistency with ... the provisions of any
collective-bargaining agreement negotiated on behalf of and applicable to them." 39 U.S.C.
§ 1005(a)(1)(A). It follows that the arbitrator was not necessarily precluded from addressing
Defendant's revocation of PPO Bailey's security clearance, but instead could do so if the
powers invoked by Defendant to make this determination conflicted with its obligations
under the CBA.

This inquiry, of course, implicates matters of CBA interpretation that the parties agreed to
entrust to the arbitrator. Specifically, Plaintiff challenged the discharge of PPO Bailey as
lacking the "just cause" basis demanded under the CBA, and as also violating the CBA's
mandate that "discipline should be corrective in nature, rather than punitive." (CBA § 16.01.)
The arbitrator agreed in part, upholding one of the two charges against PPO Bailey, but
determining that discharge was "unduly harsh" in light of this single violation and instead
ordering PPO Bailey's reinstatement without back pay. (3/19/2018 Arbitration Award at 23.)
Then, when Defendant subsequently revoked PPO Bailey's security clearance, Plaintiff
submitted a letter to the arbitrator arguing, among other things, (i) that Defendant was
"bound contractually to abide by the just-cause clause and arbitral review of its decisions,"
(ii) that these obligations encompassed the entirety 1151*1151 of the Defendant agency,
including its security functions, and (iii) that Defendant could not "get around the CBA by
having [its] security department declare that [Defendant] is exempt from reinstatement
orders flowing from the CBA," as this would "render the CBA a nullity." (4/30/2018
Arbitration Order at 6.) In his April 30 order, the arbitrator expressly adopted Plaintiff's
positions on these points. (Id. at 5 (stating that "[b]ecause the arbitrator endorses [Plaintiff's]
arguments, they are set forth in full")).

Accordingly, the arbitrator was at least arguably construing the CBA when he ordered
Defendant to "cease and desist from its efforts to avoid compliance with the arbitrator's
award of March 19, 2018," (id. at 11), and this suffices to satisfy the deferential standard
governing the Court's review of this order. Much as Defendant might disagree with the
arbitrator's reading of such CBA terms as "just cause," "reinstatement," and "corrective
discipline," the Court is not at liberty to address the merits of the arbitrator's efforts at
contract interpretation, so long as they are sufficiently tethered to the language of the
CBA. See Michigan Family Resources, 475 F.3d at 753.

Next, Defendant suggests that the decision to revoke PPO Bailey's security clearance was
separate and independent from the dispute giving rise to Plaintiff's grievance on behalf of
this officer, such that the arbitrator could not address this decision without exceeding his
authority to resolve only the dispute brought before him in Plaintiff's grievance. In
Defendant's view, while it was obligated under the arbitrator's March 19 award to reinstate

47
PPO Bailey, nothing in that decision prevented it from exercising its wholly separate power
to determine whether an employee had engaged in conduct that warranted the revocation of
his security clearance. Defendant then points to case law drawing a distinction between
matters within the scope of arbitration and subsequent or otherwise separate developments
that lie out-side the authority of the arbitrator to address. See, e.g., Totes Isotoner
Corp., 532 F.3d at 415; Hughes Aircraft Co. v. Electronic & Space Technicians, Local
1553, 822 F.2d 823, 827 (9th Cir. 1987); Detroit & Midwestern States Joint Board,
Amalgamated Clothing Workers of America v. White Tower Laundry & Cleaners, 353
F.Supp. 168, 169-70 (E.D. Mich. 1973).

As a threshold matter, however, this argument amounts to a challenge to the arbitrability of

Defendant's decision to revoke PPO Bailey's security clearance in the wake of the
arbitrator's March 19 award of reinstatement. As already discussed, the parties presented
this question of arbitrability for resolution by the arbitrator, and his decision on this issue
withstands the limited and deferential review to which it is subject.

Moreover, the cases cited by Defendant are distinguishable. In Totes Isotoner Corp., 532
F.3d at 416, for example, the court held that the arbitrator had "acted outside of his
authority" when he addressed a question arising under a wholly separate agreement from
the CBA he had construed in issuing an earlier award. Similarly, in Hughes Aircraft, 822
F.2d at 827, the employee who was the subject of an initial grievance had been promoted
twice since the employment action giving rise to the grievance. Because "these subsequent
promotions [we]re the subject of other independent pending grievances," the court held that
the arbitrator lacked the authority to address these subsequent developments as part of his
resolution of the initial grievance. 822 F.2d at 827.

Although Defendant points to the revocation of PPO Bailey's security clearance as a similar
"subsequent development" 1152*1152 that the arbitrator lacked the authority to address, the
record indicates otherwise. PPO Bailey's security clearance was not revoked on the basis of
any action he took after the events giving rise to Plaintiff's grievance on his behalf. To the
contrary, Defendant specifically cited the arbitrator's findings in his March 19, 2018 decision
as support for its determination that PPO Bailey's security clearance should be revoked.
(See 4/30/2018 Arbitration Order at 3.) Thus, the only "subsequent development" here was
Defendant's decision, following the arbitrator's award of reinstatement, to rely upon PPO
Bailey's past conduct as a basis for revoking his security clearance.

Because the arbitrator did not purport to address new facts outside the four corners of the
grievance brought before him, he did not exceed his authority by accounting for new actions
taken by Defendant that he perceived, in accordance with his interpretation of the CBA, as
an "attempted end run around" his March 19, 2018 award of reinstatement. To hold
otherwise would permit Defendant to exercise a veto over the arbitrator's handling of an
employee grievance and order of reinstatement by adopting a new, post-arbitration ground
for the employment decision addressed in the grievance and arbitration proceedings. Under
both the parties' CBA and the relevant law, the arbitrator was authorized to issue an order
ensuring the implementation of his award of reinstatement. It follows that Plaintiff is entitled
to an order confirming the arbitrator's March 19, 2018 award and subsequent April 30, 2018
order, and that Defendant's counterclaim seeking to vacate in part the arbitrator's award
and order is subject to dismissal.

48
V. CONCLUSION
For these reasons, the Court GRANTS Plaintiff's July 18, 2018 motion for order confirming
arbitration award and for summary judgment (Dkt. 11), and DENIES Defendant's August 8,
2018 cross-motion for summary judgment (Dkt. 16).

IT IS SO ORDERED.

[1] An arbitrator's decision also can be overturned if the arbitrator "committed fraud, had a conflict of interest, or
otherwise acted dishonestly in issuing the award." Brotherhood of Locomotive Engineers, 700 F.3d at 901. In this
case, however, Defendant does not challenge the arbitrator's decision on any of these grounds.

[2] The ASM further provides that if an employee is denied a security clearance, he must either be discharged or
reassigned to duties that do not require this clearance. (ASM § 272.35.)

[3] Despite its insistence that PPO Bailey cannot pursue a grievance to challenge the revocation of his security
clearance, Defendant opines that two avenues of relief remain available to him. First, the ASM provides for
administrative review of a decision to deny a security clearance. (See ASM § 272.33.) Next, in the event that PPO
Bailey is discharged for failure to maintain the requisite security clearance, Defendant states that he could file a
grievance challenging this discharge, but it submits that such a challenge would be limited to "due process issues,
[and] not the merits of the decision" to revoke his security clearance. (Dkt. 20, Defendant's Reply Br. at 4 n.2.)

49