REGULAR ARBITRATION PANEL. Grievant: A. Flores. Charles H. Frost. Reece E. Cox, Local Business Agent. Houston, TX. December 3, 1998.

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1 REGULAR ARBITRATION PANEL In the Matter of Arbitration between United States Postal Service and Grievant: A. Flores c, / Post Office : ' Beechnut Station Houston, TX Case No: G94N-4G -D Local No DA GTS# National Association of Letter Carriers Before : Appearances : For the Postal Service : For the Union : Place of Hearing : Date of Hearing : Date of Award : Relevant Contract Provisions : Contract Year: Type of Grievance : Charles H. Frost Mary Ann Longenecker, Labor Relations Specialist Reece E. Cox, Local Business Agent Houston, TX December 3, 1998 December 31, 1998 Articles 15, Notice of Proposed Removal Award Summary Just cause did not exist for issuing the January 19, 1998 Notice of Removal to Grievant. The grievance is granted. Grievant shall be reinstated with full back pay and benefits. For the purposes of this award, full back pay is defined as the amount Grievant would have earned less any ear ning s from other employment and any unemployment compensation received. o V, Charles H. Frost Bayshore Blvd. Tampa, FL 33629

2 BACKGROUND The hearing was held in Houston, Texas on Thursday, December 3, The parties were offered full and equal opportunity to present testimony, exhibits, and to argue the merits of their respective positions. The Arbitrator stated his notes were for his own use and that each party would be responsible for keeping its own notes. The Arbitrator made a tape recording of the proceedings and offered the parties a copy. The offer was declined. At the conclusion of the hearing, the parties stated they had received a full, fair and impartial hearing. Grievant also stated he had received a full fair and impartial hearing and that he had been fully and fairly represented by the Union. The record was closed on December 3, s. ** s* ss A. Flores, a City Letter Carrier, whose seniority date is July 4, 1978, was given a Notice of Proposed Removal dated January 19, Pertinent parts of that notice follow : CHARGE #1 : You are charged with Improper Conduct /Failure To Follow Your Physician ' s Instructions and Creating the Possibility of Sustaining Further Injury For Which The Postal Service Would Be Permanently Liable Specifically, you are assigned to City Route Records reveal that Postal Inspector Michael W. Sullivan conducted an investigation while you were receiving continuation of pay benefits. You were observed engaging in activities beyond your medical restrictions that could have prolonged or aggravated your condition. On May 6, 1996, you completed a Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation (P.S. Form CA-1). On the P.S. Form CA-1, you stated, "I was loading up my vehicle. I was picking up a tray of flats from the hamper to the vehicle, I noticed the paper tray was about to give away and to avoid this from falling to the ground, I hurried and placed the tray of flats on the tray, which I bent and twisted in an inadequate position." On May 6, 1996, Mr. Van Tran, MD, of MacGregor Medical Association, Harwin 2

3 Drive, Houston, TX 77072, examined and diagnosed you had a muscle strain in your left buttock. You were placed on total disability and unable to work from May through May 27, On May 31, 1996, you were examined by Dr. Tran. Dr. Tran ' s progress note stated you were still in pain, which was worsened with weight bearing and walking. You were instructed to rest and avoid strenuous exertion. Dr. Tran stated you were scheduled to see a physical therapist in the near future. On June 14, 1996, Dr. Tran completed a U.S. Department of Labor Form CA-20, attending physician' s report. Dr. Tran noted that you were going through physical therapy. You were again placed on total disability and unable to work through June 21, On June 20, 1996, you were examined by Fritz Razvi, PA of MacGregor Medical Association. According to Dr. Razvi ' s progress note, you were unable to keep your physical therapy appointments, "Due to personal and transportation problems." In addition, Dr. Razvi reported in part, "Importance of physical therapy explained to the patient and told the consequences of not going to physical therapy." You were instructed to keep the physical therapy appointments. You remained totally disabled through July 8, On July 17, 1996, you were again examined by Dr. Tran and found, "moderate tenderness in the left buttock area." You were released to partial disability from July 24 through August 14, On July 29, 1996, Dr. Tran completed a U.S. Department of Labor, CA-17. You were advised by Dr. Tran that you could return to work. Upon your release to limited duty, you failed to notify your immediate supervisor, Ms. Sandra Alix. Ms. Alix stated that she was not aware of any release to work until September 16, On July 30, 1996, Dr. Tran's narrative report stated, "The patient (Mr. Flores ) had been improving gradually until yesterday when he bent over suddenly to help his child at home and seem to have re-injured the muscle strain. The patient developed worsened pain immediately after he did the bending in the same injured area." Dr. Tran removed you from partial disability and placed you back on total disability from July 24 through August 14, On September 9, 1996, Dr. Tran examined you and completed a U.S. Department of Labor Form CP-5, work restriction explanation. The OWCP-5 shows you were released to four (4) hours per day, from September 9 through September 16, You were released to duty with restrictions as described in the OWCP-5, which included ; no bending, squatting, climbing, kneeling or twisting. Again, you failed to notify your supervisor of your release to limited duty. Dr. Tran's narrative report from the September 9, 1996, visit stated, you "wants to go back to work next Monday, September 16, 1996." According to the U. S. Department of Labor Federal Employee ' s Compensation Wage Loss Benefit Statement, you received compensation benefits through September 14,

4 On September 10, 1996, postal inspectors observed and video taped you bending, squatting, climbing, kneeling and twisting while painting your residence. You were observed looking down your street from your house. You suddenly ran and hid behind a vehicle in your driveway. You quickly returned to pick up your paint and step ladder. Then you immediately went back behind the vehicle. This activity occurred as a mail carrier approached your house. Once the mail carrier had moved beyond your address, you re-appeared with your paint and step ladder and continued to paint. On September 11, 1996, postal inspectors observed you painting your house. You were observed and video taped bending, squatting, climbing, and twisting to paint the gutters and eaves of your house. You were observed climbing up and down the step ladder leading with your injured left leg, approximately seventeen ( 17) times. On October 9, 1996, your treating physician Dr. Van Tran, was interviewed by Postal Inspectors M. W. Sullivan and J. Tarpley. Dr. Tran stated that he had examined you on September 9, Dr. Tran stated that he was not aware that you were painting your house, but was not surprised since you had been released to four hours work per day. Dr. Tran stated your activities on September 10 and 11, 1996 were beyond your restrictions. Dr. Tran stated that you did not inform him that you were able to perform these types of activities. Dr. Tran acknowledged that your activities could have prolonged or aggravated your condition. On November 9, 1996, you were interviewed by postal inspectors regarding your injury claim. You stated that you understood the forms that you were required to complete your compensation benefits. You stated that you still experienced pain in your left hip from your injury. You stated that you wanted to return to work, but could not due to pain. You stated that while disabled you stayed home and watched your daughter. You stated that you did not paint you house, or violate your medical restrictions. When you were advised that the Postal Inspections Service had learned you did paint your house, you then admitted painting your house. You stated that you painted your house on September 16 and September 17, 1996, during your scheduled days off, just prior to returning to work. You were given an opportunity to view the video tape by postal inspectors. The video tape shows you bending, twisting, squatting, and climbing a step ladder while painting and returning behind a vehicle when the mail carrier approached your house. When asked why you had ran and hid from the mail carrier, you responded, "I though it was someone else." The video obtained shows you painting your residence on September 10 and September 11, 1996, while under your doctor ' s restrictions. You confirmed that you had been compensated by the Department of Labor through September 14, 1996, but had not cashed the check. You were then given an opportunity to provide in your own words your explanation of the video. Upon the advice of your union steward, you declined to give a written statement. You are charged accordingly." 4

5 To put the pieces in better perspective, further background will be helpful. On December 16, 1997, Arbitrator Devon Vrana issued an award on a Proposed Notice of Removal, which had been issued to Grievant on January 13, The Proposed Notice of Removal was substantially the same as the Notice of Proposed Removal issued on January 9, Arbitrator Vrana's' award said : "The grievance is sustained. Having carefully considering all of the evidence submitted by the parties concerning this matter, I conclude that Grievant's immediate supervisor improperly failed to handle the grievance at Step I of the grievance procedure. The Union did not waive its right to contest arbitrability by failing to raise the issue during the grievance procedure. Accordingly, Management shall remove Grievant's Letter of Removal from all of its files and records. Management shall also make Grievant whole as a result of its contractual infraction. The Arbitrator shall retain jurisdiction over this matter to resolve any problems resulting from the remedy of the award." Thereafter, Grievant was ordered to report for work and was given an investigative interview. This was followed by another Notice of Proposed Removal, dated January 19, This hearing is the result of the appeal of the grievance protesting that notice. The Union asserts Grievant was placed in double jeopardy on January 19, 1998 when the U.S.P.S. reissued a Notice of Proposed Removal on a matter which had been settled by Arbitrator Vrana's award. During discussion, after the parties made their opening statements, the Arbitrator urged that the hearing proceed on the procedural questions and merits. Then, the Arbitrator would rule on the procedural questions and, dependent upon that outcome, rule on the merits. Further i Pages 64, 65 Joint Exhibit 2. 5

6 discussion led the parties to conclude that the matter should be bifurcated and the Arbitrator would hear and rule on only the procedural questions on December 3. Dependent upon that outcome, a hearing on the merits may be scheduled at a later date. Appearances FOR THE U.S.P.S. : Mary Ann Longenecker - Labor Relations Specialist FOR THE UNION : Reece E. Cox - Local Business Agent A. Flores - Letter Carrier and Grievant THE ISSUE "Was the Notice of Removal issued on January 19, 1998 to A. Flores, Grievant, for just cause? If not, what is the remedy?" POSITION OF THE UNION Grievant was placed in double jeopardy by the U.S.P.S. when it reissued a Notice of Proposed Removal identical to one which had been settled a year earlier. In the first arbitration, the U.S.P.S. introduced all its evidence, had all its witnesses testify, cross-examined Union witnesses in detail to refute the arguments raised by the Union on due process violations. The U.S.P.S. presented its case and vigorously defended the Union counter charges. The award sustained the Union position, directed the U.S.P.S. to remove the Notice from its files and make Grievant whole. On December Case #G94-4G-D before Arbitrator Devon Vrana. 6

7 24, 1997, Grievant was ordered to report for work, and given an investigative interview. A second Notice of Removal followed, which was grieved and is now before this Arbitrator. The Union position is that this matter has been arbitrated and a final and binding award was issued. If the U.S. P.S. disagreed with that award, it had two options. It could have asked for clarification on whether or not the award was final and binding or whether or not the U. S.P.S. would be allowed to reinstitute the charges since the award did not address the merits. The other option was to file suit in federal court asking that the award be vacated. The U.S. P.S., however, elected to have the matter put before a different Arbitrator, hoping to receive a favorable ruling. In further support of its position, the Union refers to Joint Exhibit 5(a), the October 31, 1996 letter in which it was agreed that "the same Arbitrator who determined the arbitrability of a case, (will be) scheduled to hear the merits." Further, Joint Exhibit 6, an agreement dated October 3, 1975, says in part : "...It was agreed that beginning with the date of this letter, no request or motions for reconsideration of arbitration awards would be filed by any signatory to the 1975 National Agreement or the postal service." "...Nothing herein is intended to preclude any right that any party may have to seek judicial review of an Arbitrator ' s award." The U. S.P.S. claim that Arbitrator Vrana has no authority to retain jurisdiction is not valid. As long as the award did not conflict with the provisions of the National Agreement, the U.S.P.S. cannot unilaterally impose a limit on the Arbitrator ' s authority. And, retaining jurisdiction after the award has been issued has been practiced by the parties regional and national arbitrators for years. The argument that the U.S.P.S. corrected the procedural due process violation and will ensure there are no procedural errors in processing of this case, needs to be addressed. First, there is no way 7

8 an error was corrected or could be corrected without incurring additional serious violations of procedural due process which are guaranteed under Article 15 of the contract. The immediate supervisor at the time the incident, Alix, should have heard the grievance at Step 1. Alix refused, and either/or was later ordered (or directed) by upper management to issue the second discipline even though Alix was not Grievant's immediate supervisor at that time. Supervisor Dare, who had nothing to do with the original charges or investigation, heard the first grievance at Step 1. This violates the contract. The Union's point is that there is no way, after a full year has passed, that the U.S.P.S. can go back and correct past due process violations and ensure that the Grievant is afforded all of his rights and a fair and impartial investigation and hearing. Grievant spent over a year off the clock without pay and benefits. To simply give Grievant back pay does not negate the fact that he was already punished for that incident and is now being recharged for the same incident. This is double jeopardy. The Union asks the Arbitrator to rule that the matter has been settled and to order the U.S.P.S. to reinstate the Grievant in accordance with Arbitrator Vrana's award and to make Grievant whole in every way. POSITION OF THE U.S.P.S. The matter is whether or not there was just cause to issue Grievant a Notice of Proposed Removal on January 9, The reasons for issuing the letter were failure to follow physician's instructions and creating the possibility of sustaining further injury for which the Postal Service would be liable. The grievance was sustained on a procedural point by Arbitrator Vrana. Thereafter, U.S.P.S. corrected the procedural point and reissued the Notice of Proposed Removal on January 8

9 9, The issue here concerns Grievant's second Notice of Proposed Removal. The December 19, 1997 award did not rule on the merits - - only on the procedural issue at Article 15.2, Step 1. This requires Grievant's immediate supervisor handle the Step 1 meeting. The Step 1 meeting was held with Supervisor McKelvey instead of Supervisor Alix who, at that time, was Grievant's immediate supervisor. Reissuing this discipline is supported by a case in the 111 Circuit'. The I I' Circuit decision upheld the District Court's reversal of an Arbitrator's decision finding that a procedural defect can be cured and is not prejudicial to the removal results. The U.S.P.S. rejects the Union position that the Vrana award is res judicata and bars reinstatement of the discipline or rehearing on the merits. The merits of this grievance have never been addressed. This Arbitrator should not have any reservation regarding the effect of the first removal action. Since this is an interpretive issue of the just cause and the final and binding provisions of the National Agreement, the issues are of general applicability. The Arbitrator has the authority to rule on the merits. The U.S.P.S. asks the Arbitrator to rule that the issue is properly before the Arbitrator and that the merits of the matter be scheduled for a hearing. DISCUSSION AND OPINION The record tells me the evidence favors the Union and I shall so rule. The principal reason for this conclusion is that Grievant was placed in double jeopardy when issued a second Notice of Proposed Removal. 3 U.S.P.S. v. National Association of Letter Carriers, AFL/CIO - 847Fld775 ( 11th.cir 1988 ). There is no precedent setting case in the 51 Circuit. 9

10 Before going to the specifics, it is appropriate to comment generally on the issue. The parties made it crystal clear to the Arbitrator he was to rule only on the procedural question (that is, arbitrability), in this award. The December 31 hearing focused only on the procedural, that is the due process violation. Further examination of the concept of double jeopardy is appropriate. Historically, many arbitrators have concluded that it is not proper for a person to be disciplined by a double penalty. And, where the employer seeks to punish the employee twice for the same misconduct, double jeopardy comes into play. Stated another way, the application of the double jeopardy concept has held that once discipline for a given act has been applied and accepted, it cannot thereafter be repeated or increased. On the other hand, the double jeopardy concept has been found inapplicable where the action taken against the employee may not be considered final. A long time ago, Arbitrator Whitley P. McCoy" set a standard for applicability of double jeopardy. The sense of his award was : "Arbitrator may evoke principle of double jeopardy to set aside a second penalty imposed for the same offense, despite 1acnet. c2rrte a~.2. rr.rs.ji. ~5.Srrrr is applicable only to criminal proceedings. When a long established principle, such as protection from double jeopardy is applicable- the arbitrator should apply it even though he not a criminal court fudge. To hold otherwise would be contrary to fundamental concepi of justice and would diminish confidence in arbitration as a process for obtaining justice." [Emphasis added.] 4 16 LA616, International Harvester and UAW Local May 22,

11 Arbitrator Charles Levingood5 expressed the double jeopardy principle as : "Deeply rooted in the American tradition of justice is the concept of double jeopardy - -1hg principle that a man shall not be twice punished or even exposed more than once to the risk of punishment for the same offense. It seems to me that principle has been violated here." [Emphasis added]' Here, it is unrefuted that the January, 1998 Notice of Proposed Removal was substantially the same as the one in Arbitrator Vrana's award of December, The U.S.P.S. argument that the Arbitrator cannot retain jurisdiction was thoroughly considered. The award of National Arbitrator Snow in Case H94N-4H-C (issued on November 4, 1998) said : "The Arbitrator shall retain jurisdiction in this matter for 90 days from the date of the report in order to resolve any problem resulting from the remedy in the award. It is so ordered and awarded." And in Case #H7-N5C-C12397, issued on July 29, 1991, National Arbitrator Snow said : "The Arbitrator shall retain jurisdiction in this matter to resolve the remedy in the award. It is so ordered and awarded." any problems resulting from Therefore, this Arbitrator cannot give weight to the U.S.P.S. position on this point. The U.S.P.S. argued that since there was no ruling on the merits, the discipline can be reissued after the procedural flaw has been corrected. This also needs to be addressed. After full 5 6 See 24 LA358, Durham Hosiery Mills and American Federation of Hosiery Workers, Branch 31A (AFL 1955). See also Arbitrator Dworkin, 40 LA87, Misco Precision Castings and UAW Local 1243, Arbitrator Foster in Georgia Power and IBEW Local 84 in 76 LA761 and Arbitrator Bowles 80 LA1090, McCrary at 76 LA758, Lubick at 75 LA158, and Porter in 41 LA 892, City of Orlando and Central Florida Police Benevolent Association FMCS Case 86/23455, December 5, 1986, Arbitrator Frost at 88 LA572. See also the defense of double jeopardy, pages Fairweathers Practice and Procedure in Labor Arbitration (Third Edition), Bureau of National Affairs, And Elkouri and Elkouri- How Arbitration Works, 5`s Edition - Bureau of National Affairs, 1997, pages

12 consideration of the entire record, I find that it supports a ruling that issuing the second notice exposed Grievant to double jeopardy. For this reason, the Arbitrator is compelled to sustain the grievance and order reinstatement with full back pay and benefits. However, it is appropriate to address, in some detail, the U.S.P.S. position that because there was no ruling on the merits', the discipline can be reinstituted after the procedural violation has been corrected. The way I read the Vrana award, I find nothing to tell me that it was not final and binding and pursuant to the contract. Article 15.4.A6 of Joint Exhibit 1 is clear and unambiguous : I'm decisions of an Arbitrator will be finial and binding. All decisions of Arbitrators shall be limited to the terms and provisions of the agreement and in no event may the terms and provisions of this agreement be altered, amended, or modified by an Arbitrator." [Emphasis added] The Vrana award sustained the grievance and did not rule on the merits. I find nothing in the award to tell me the award was not final and binding. If the U.S.P.S. disagreed with the Vrana's award, there were two routes to follow. Reconvene the hearing with Arbitrator Vrana for further clarification. The records shows that this was proposed by the Union but the U.S.P.S. did not agree. The other was to file suit in federal court asking that the award be vacated. Both parties submitted numerous citations" in support of their respective positions. All were read. Several contained circumstances similar to the instant matter. I made special note of : Arbitrator Suardi in Case J94N-4J-D , November 15, 1996 : "The instant dispute surrounds whether the decision of Arbitrator Klein subsumes a finding on the merits of the case before this Arbitrator." "In the present context, the parties have 7 B And, therefore, not final and binding. Totaling 229 pages. 12

13 . agreed to the language of Article 15.4A.6 that "all decisions of an arbitrator will be final and binding." This widely used provision does no more than expressly recognize the parties' intention to avoid tedious and repetitive re-litigation of the same con rov rsv Thus, while valid "disputes, differences, disagreements or complaints" must be permitted to proceed through the grievance procedure, so too, must they and decided." [Emphasis added] some time ne ca 0 K41)! yy.1nu1tb ti ii! Arbitrator Menzies in Case H94N-4H-D / , November 11, 1996 : "The question of whether or not an Arbitrator's decision based on a procedural irregularity precludes reconsideration of the issue on the merits after correction of the procedural irregularity can only be resolved within the framework of the grievance/arbitration process." "...To follow the argument of the Service, arbitration(s) of the Removal could proceed on indefinitely as long as each repeat Removal contained an error. This cannot have been the intent of the parties. The other alternative would be for arbitrators to address the merits of s which would have the effect of rendering the National Agreement's procedural requirements meaningless." [Emphasis added] Arbitrator Dworkin in Case C7R-4Q-17456, April 25, 1990 : "The undisputable fact is, that, the fourth and final notice of removal which is before the Arbitrator was based on the same identical factual circumstances that were involved in each of the three prior removal notices, including the settlement agreement of the second removal notice, and the Award of Arbitrator Porter." "By way of a threshold observation, jhtg a on of the Arbitrator derived from the parties' agreement the Arbitrator's award must "draw its essence from the agreement". rather than from judicial decisions, or rulings from other agencies." [Emphasis added] Arbitrator Howard in Case AC-E-4890D, April 13, 1985 : "Thus, the Service having assessed a specific penalty when the grievant was returned to work from his emergency suspension Mij MW same offense. The increase in the penalty violates the grievant's due process rights. whether the violation be characterized as "double jeopardy" or "adding to the original penalty." Two Ya,r,r a e KNIN for the same offe and on this narrow basis the subsequent penalty of the fourteen (14) day suspension must be overturned." [Emphasis added] Arbitrator Foster in Case S8N-3Q-D-3515/18, March 12, 1982 : "The parties to the National Agreement are bound to comply with its clear and unambiguous procedural provisions designed to insure that due process is accorded to employees charged 13

14 with disciplinary offenses. Arbitrators are likewise bound to enforce these agreed-wo procedures and sustain grievances where the failure to do so 2rgiudices the rights of h grievant. I am convinced that the failure in this case to provide the Union with the reasons for the decision at the third step was prejudicial to the Grievant and denied him due process. Accordingly, the procedural error forms a sufficient cause to sustain the grievance without consideration on its merits." [Emphasis added] Arbitrator Holly in Case S8N-3D-D-34092/34093, February 15, 1982 : "Based on the foregoing, it is concluded that the procedural errors are sufficient to cause Arbitrator to grant the Unions' motion to sustain the grievances. As a consequence, the motion is granted, and the case will not be considered on its merits." Arbitrator Duda, Case H90N-4H-D / , July 19, 1996 : "In the industrial relations community arbitrators and practitioners have long recognized that discipline, including discharge, may be modified or overturned in arbitration if basic notions of fairness or due process were not observed. This principle is especially true in respect to labor agreements having specific procedural requirements for discipline. The National Agreement between the Postal Service and the National Association of Letter Carriers, among others, has a number of such provisions. Legions of Postal Service arbitrators have recognized this principle. When a Postal Service Arbitrator finds the service did not fulfill required action or committed conduct prohibited by the 'terms and provisions of this agreement,' 'the Arbitrator may disturb a concerned discipline provided he/she does not alter, amend or modify those terms or provisions. "[Emphasis added] I am satisfied that the issue has been addressed and, therefore, it is unnecessary to discuss or treat any other matters or events which may be immaterial, peripheral or insignificant. Further, it must be emphasized that the absence of any treatment or discussion related to any matters or arguments presented must not be construed to be a lack of attention thereto, since all matters were considered. 14

15 EXHIBITS The following exhibits were introduced : JOINT EXHIBITS : 1. Applicable Agreement. 2. Grievance Packet (65 pages). 3. ELM - Section Applicable Agreement Article 3 - Management Rights. 5(a). Letter, Doninger, U.S.P.S. to Sombrotto, NALC, dated 10/31/96. 5(b). Letter, Mahon to Sombrotto, NALC (Step 4 Grievance), dated 7/15/ Letter, Cushman (for the Union) to Conway (U.S.P.S.), dated 10/3/75. BY THE UNION- 1. Gonzalez, U.S.P.S. to Mullins, NALC, dated 2/17/ Gonzalez, U.S.P.S. to Mullins, NALC, dated 2/2/ Mullins NALC to Young, NALC, dated 2/9/ Mullins NALC to Gonzalez U.S.P.S., dated 2/9/98. The parties offered the following citations in support of their positions. BY THE UNION : 1. Case G94N-4G-D , March 11, Arbitrator Bennett - double jeopardy. 2. Case J94N-4J-D , November 15, Arbitrator Suardi - res judicata. 3. Case H94N-4H-D , November 11, Arbitrator Menzies - double jeopardy. 4. Case H94N-4H-D , October 31, Arbitrator Johnston - double jeopardy. 5. Case H90N-4H-D , July 19, Arbitrator Duda - double jeopardy. 9 The record shows this award is now in Federal Court. 15

16 6. Case C7R-4Q-17456, April 25, Arbitrator Dworkin - double jeopardy. 7. Case DR-31-88, March 20, Arbitrator Zumas - double jeopardy. 8. Case AC-E-4890D, April 30, Arbitrator Howard - double jeopardy. 9. Case CIC-4E-D34608, December 27, Arbitrator DiLeone - double jeopardy. 10. Case EIN -2F-D / 17341, April 22, Arbitrator Howard - double jeopardy. 11. Case S8N-3Q-D-35151, March, Arbitrator Foster - fatal procedural defects. 12. Case S8N-3D-D / 34093, February 15, Arbitrator Holly - fatal procedural defects. 13. Case AB-N - 12, November 11, Arbitrator Gamser - double jeopardy. 14. Case H94N-4H-C , November 4, National Arbitration Panel, Arbitrator Snow - retention of jurisdiction. 15. Case H7-N-5C-C12397, July 29, National Arbitration Panel, Arbitrator Snow - retention of jurisdiction. BY THE U.S.P.S. : 1. Case SON-3W-D6249, June 3, Arbitrator Stevens - reissuing a Notice of Removal. 2. Case H90N -4H-D , March 13, Arbitrator Taylor - nonarbitrable case remanded to second arbitration proceeding to be heard on the merits. 3. Case W8N- 5BD-3194, 3166, 4111, January 4, Arbitrator Gentile - double jeopardy. 4. Case HOC3D- D8598, October 20, National Arbitration Panel, Arbitrator Snow - general application of arbitrability of a grievance at the national level. 5. Case S7N-3R - D31574, April 23, Arbitrator Foster - applicability of contractual time limits, application to contract language, and facts of record and application with equal force to procedural and substantive matters. NOTE : In its opening statement, the U. S.P.S. referred to two 11 ' Circuit decisions and five 5' Circuit decisions. It did not proffer any written data on these decisions. 16