Case: TetraultvUSPS



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UNITED STATES OF AMERICA

MERIT SYSTEMS PROTECTION BOARD

________________________________

                                )

                                )

¯LESLIE A. TETRAULT,             )       DOCKET NUMBER

          Appellant,            )       DE-0752-95-0241-I-1

                                )

          v.                    )

                                )

¯UNITED STATES POSTAL SERVICE,   )       DATE:  AUG 29, 1996  

          Agency.               )

                                )

________________________________)

¯Leslie A. Tetrault, Billings, Montana, pro se.

¯Paul H. Mabus, San Bruno, California, for the agency. 

BEFORE

Ben L. Erdreich, Chairman

Beth S. Slavet, Vice Chair

Antonio C. Amador, Member

OPINION AND ORDER

¯The appellant petitions for review of the initial decision,

issued October 13, 1995, that dismissed her appeal for lack of

jurisdiction.  For the reasons discussed below, the Board GRANTS

the appellant's petition, VACATES the initial decision, and

REMANDS the appeal for further adjudication.

BACKGROUND

On January 22, 1994, the agency informed the appellant that

it would suspend her for 14 days based upon charges of failing to

notify her supervisor that she would not be reporting to work as

scheduled, absence without leave, and attempting to obtain

approved leave under false pretenses.  On that date, the agency

and the appellant also entered into a purported last-chance

settlement agreement (referred to hereinafter as the last-chance

agreement or Settlement I), under which the appellant agreed to

abstain from using alcohol or drugs, maintain satisfactory

attendance, and obtain approval for all leave, actively

participate in the agency's Employee Assistance Program (EAP), and

actively participate in any treatment program recommended by the

EAP counselor, whether in-patient or out-patient.  The agreement

further stated that the appellant's continued employment was

conditional upon full compliance with those terms, and that any

violation would constitute cause for her removal without any

opportunity of appealing the matter to the Board or the EEOC. 

Notwithstanding the appellant's agreement to Settlement I, the

agency imposed the 14-day suspension on January 22, 1994, the very

day that agreement was executed.

On April 4, 1994, the agency proposed the appellant's removal

based upon the charges of absence without leave (AWOL), and

violating the last-chance agreement.  Regarding the AWOL charge,

the agency specified that, during an investigative interview

concerning a threat the appellant allegedly made toward her

supervisor, the appellant stated that she was resigning and left

the premises.  The agency further stated that the appellant was

AWOL because she did not resign and did not contact her supervisor

regarding her status.  With respect to its other charge, the

agency specified that, at the interview regarding the threat, the

appellant's EAP counselor stated that the appellant needed

immediate in-patient treatment and that she did not follow this

recommendation or continue with her weekly meetings with her

counselor, as required under the last-chance agreement.  The

agency also stated that it was relying upon the January 22,   

14-day suspension in arriving at its decision to recommend the

appellant's removal.  The agency effected the appellant's removal

on May 12, 1994, for the reasons stated in the proposal notice.  

On July 11, 1994, the agency and a union representative

executed a settlement agreement of the step-three grievance of the

appellant's notice of proposed removal (sometimes referred to

hereinafter as Settlement II).  The agreement provided that the

appellant's removal would stand, that the appellant would be given

a "post discharge" opportunity to provide evidence that alcoholism

or drug dependency were primary contributors to her absenteeism,

and that the appellant could request reinstatement pursuant to the

agency's Employee and Labor Relations Manual's provisions

regarding recovered employees.  The agreement further stated that

it constituted a full and final settlement of all issues

pertaining to the grievance.

Following the appellant's filing of a petition for appeal on

January 23, 1995, the administrative judge held a jurisdictional

hearing and dismissed the appeal for lack of jurisdiction, finding

as follows:  (1) The appellant voluntarily entered into Settlement

I; (2) the agency proved that the appellant violated that

agreement by being AWOL and not following the EAP counsellor's

recommendation for treatment; (3) the agency effected the

appellant's separation under Settlement I in good faith; and (4)

the appellant's filing of a grievance, and the entry into

Settlement II at the step-three level, did not affect the

adjudication of this appeal.

In her petition for review, the appellant asserts, among

other things, that the Board should not enforce the terms of the

last-chance agreement because the agency disciplined her for the

misconduct giving rise to that agreement.

ANALYSIS

Although not raised by the parties on review, we find that

the entry into Settlement II raises a question regarding the

Board's jurisdiction over this appeal.  See Dockery v. Federal

Deposit Insurance Corporation, 64 M.S.P.R. 458, 460 (1994) (Board

may raise the matter of its own jurisdiction sua sponte at any

time).  

In Mays v. U.S. Postal Service, 995 F.2d 1056 (Fed. Cir.

1993), the U.S. Court of Appeals for the Federal Circuit discussed

the effect of an employee's settling a grievance on the Board's

jurisdiction over appeals by preference-eligible postal service

employees.  The court recognized that such employees are not

required to elect to pursue an adverse action through the

negotiated grievance procedure or through appealing to the Board,

and may simultaneously pursue both avenues of review.  Id. at

1058.  The court held, however, that the Board lacks jurisdiction

over such an appeal where the appellant enters into a settlement

during the grievance procedure over the action in question that

states it is a full and final settlement of the underlying matter. 

Id. at 1058-59.  In reaching this conclusion the court affirmed

the Board's rejection of the appellant's claims that the

settlement was not voluntary because he was not a signatory to the

agreement, that the union reached the settlement without

consulting him, that he did not agree with the settlement, and

that his representative misinformed him.  Id. at 1059.  

We also note, however, that a union may file a grievance on

its own behalf, and that an employee is not bound by a union's

actions in pursuing a matter through a negotiated grievance

procedure where the employee is unaware of the union's activity,

has not designated the union as his or her representative, and did

not initiate the grievance, or ratify the union's actions, and

where the union represents its own interests, and not those of the

employee.  See Cornelius v. Nutt, 472 U.S. 648, 663-64 (1985);

Mays, 995 F.2d at 1059; Smith v. U.S. Postal Service, 789 F.2d

1540, 1543 (Fed. Cir. 1986).  See also Smith, 789 F.2d at 1550-51

(Newman, J., dissenting); Nelson v. Department of the Treasury, 58

M.S.P.R. 464, 467 (1993); Stone v. Department of the Army, 37

M.S.P.R. 56, 60 (1988) (actions of union officers do not work to

employee's detriment where employee did not elect officers as

representatives).  Cf. Gosa v. U.S. Postal Service, 43 M.S.P.R.

11, 14 (1989) (appellant bound by grievance settlement negotiated

by union representative in light of absence of claim that

representative was not authorized to enter into the settlement).  

In the present case, the appellant is a preference-eligible

employee with the right to pursue her removal through both the

negotiated grievance procedure and the Board.  See Agency File,

Tab 4k; Appeal File, Tab 1.  Under the above analysis, however,

the Board may lack jurisdiction over the appeal pursuant to

Settlement II, if the union pursued the grievance on the

appellant's behalf, and if the settlement encompassed the action

at issue before the Board.  With respect to this last point, we

note that, although Settlement II states that the subject of the

grievance was the notice of proposed removal, and it appears that

the grievance originated prior to the removal, the settlement was

executed after the date the appellant's removal became effective,

and specifically states that it resolves the "Removal Action." 

Agency File, Tabs 3a, 4c.  We, therefore, find that this

settlement encompasses the removal at issue here.  See Riggs v.

Department of Defense, 48 M.S.P.R. 652, 656-57 (1991).  

We are unable to determine, however, whether the union

pursued the grievance, and entered into Settlement II, on the

appellant's behalf, or whether it represented itself in this

matter.  Article 15 of the collective bargaining agreement permits

the union to initiate a step-one grievance on its own, and the

appellant has denied that she authorized the union to initiate the

grievance for her, and states that she was unaware of the

grievance until after the settlement was executed.  Appeal File,

Tabs 1, 12, 15; Agency File, Tab 3a.  Further, the administrative

judge noted that evidence suggested that the appellant became

aware of the grievance at the step-two level, but he did not allow

testimony regarding the settlement at the step-three level. 

Initial Decision at 7.  We, therefore, conclude that further

adjudication is required regarding whether the union pursued the

grievance on the appellant's behalf.

If, on remand, the administrative judge finds that the appeal

is not barred by Settlement II, we further find that the

last-chance settlement agreement, Settlement I, does not preclude

Board jurisdiction in this appeal.  The Board has held that such

agreements are enforceable as long as they are fair, freely made,

the subject of mutual consideration, and in no way the result of

duress or bad faith on the part of the agency, even if they were

predicated on something less than a fully effected removal.  See

Romano v. U.S. Postal Service, 49 M.S.P.R. 319, 322 n.3 (1991). 

Consideration for an appellant's waiver of appeal rights can

include, but is not necessarily limited to, an agency's agreement

to reduce a removal to a suspension, or its holding of a removal

in abeyance for a period of time.  Id. at 322; Gonzales v.

Department of the Air Force, 38 M.S.P.R. 162, 164 (1988); Ferby v.

U.S. Postal Service, 26 M.S.P.R. 451, 454, 456 (1985).  See also

McCall v. U.S. Postal Service, 839 F.2d 664, 667 (Fed. Cir. 1988)

(discussing the "substantial benefit" the appellant derived from

the settlement and what he "gave up" in return for it).

We find that the last-chance agreement in the present case

does not satisfy the mutual consideration requirement.  As

discussed above, that agreement places various requirements upon

the appellant regarding attendance and participation in the

agency's EAP, and provides for the appellant's waiver of appeal

rights.  It also includes various clauses explaining that the

agreement represents one last chance for the appellant to be

retained as a productive employee.  It does not, however, include

any consideration flowing from the agency to the appellant in

exchange for the appellant's waiver of appeal rights.  The parties

entered into the agreement on the same date that the agency

determined to suspend the appellant for 14 days,{1}* and Settlement I

is silent on the relationship between it and the suspension.  We,

therefore, conclude that the agreement, on its face, lacks the

mutual consideration necessary for Board enforcement of a waiver

of appeal rights.  Thus, if Settlement II does not preclude Board

jurisdiction, the appellant's removal is properly before us, and

she would be entitled to a determination on the merits of this

action. 

order

	Accordingly, we remand this appeal to the Denver Field Office

for further adjudication consistent with this Opinion and Order. 

FOR THE BOARD:				________________________________

Robert E. Taylor

Clerk of the Board

Washington, D.C.

Dockery v. Federal Deposit Insurance Corporation, 64 M.S.P.R.

458, 460 (1994)

Mays v. U.S. Postal Service, 995 F.2d 1056 (Fed. Cir. 1993)

Cornelius v. Nutt, 472 U.S. 646, 663-64 (1985)

Smith v. U.S. Postal Service, 789 F.2d 1540, 1543 (Fed. Cir.

1986)

Nelson v. Department of the Treasury, 58 M.S.P.R. 464, 467

(1993)

Stone v. Department of the Army, 37 M.S.P.R. 56, 60 (1988)

Gosa v. U.S. Postal Service, 43 M.S.P.R. 11, 14 (1989)

Riggs v. Department of Defense, 48 M.S.P.R. 652, 656-57

(1991)

Romano v. U.S. Postal Service, 49 M.S.P.R. 319, 322 n.3

(1991)

Gonzales v. Department of the Air Force, 38 M.S.P.R. 162, 164

(1988)

Ferby v. U.S. Postal Service, 26 M.S.P.R. 451, 454, 456

(1985)

McCall v. U.S. Postal Service, 839 F.2d 664, 667 (Fed. Cir.

1988)









FOOTNOTES********************************



{1}*  The administrative judge incorrectly stated that the appellant

accepted the agreement in lieu of the proposed suspension. 

Initial Decision at 2.  See Initial Appeal File, Tab 22 at 3,

acknowledging that the appellant was suspended for her misconduct,

and Petition for Review File, Tab 3, Response at 2, specifying the

dates of that suspension.