In the Matter of the Petition by

BRAD A. NOBLE
720 Schwartz Dr.

at

Hamilton, OH 45013-1747

P.S. Docket No. DCA 95-206

APPEARANCE FOR PETITIONER:
Jerry Giesting
Vice President
Queen City Letter Carriers
Branch #43 AFL-CIO
4100 Colerain Avenue
Cincinnati, OH 45223-2522

APPEARANCE FOR RESPONDENT:
Vincent P. Catalano
Labor Relations Specialist
Cincinnati District
United States Postal Service
1591 Dalton Avenue, Room 207-T
Cincinnati, OH 45234-9406

FINAL DECISION UNDER THE DEBT COLLECTION ACT OF 1982

          Petitioner, Brad A. Noble, filed a petition for hearing on June 6, 1995.  The procedural history of this case is a bit unusual, in that it began with a Letter of Demand from Petitioner’s Station Manager on June 25, 1993.  Petitioner appealed, in a July 16, 1993 letter to the Station Manager, and the parties began the grievance/arbitration process.  Sometime thereafter, the parties determined that this process was not applicable to Mr. Noble.  On May 22, 1995, union and management representatives signed a settlement statement, agreeing that Mr. Noble would have appeal rights as a non-bargaining unit employee under the Employee and Labor Relations Manual (ELM) Section 450.  That translates to a right to file a petition under Debt Collection Act procedures, in accordance with 39 C.F.R. Part 961.  Mr. Noble wrote an appeal letter to the Cincinnati Postmaster on May 31, 1995, and filed this Petition on June 6, 1995. 

          The liability alleged by the Postal Service is $1852.00, for the loss of a piece of registered mail on April 13, 1993.  A hearing was conducted in Cincinnati, Ohio on August 31, 1995.  The Postal Service presented testimony from Gary L. Brummett, Station Manager at the Sharonville Branch of the Cincinnati Post Office, and Gary Heil, the Postal Inspector who investigated the case.  Petitioner testified in his own behalf, and also presented testimony from two other letter carriers at Sharonville, David Pitman and David Thompson.  At the request of both parties, time for filing post-hearing briefs was extended to October 31, 1995.  The parties waived the statutory requirement for decision within sixty days of the filing of the petition.  Briefs were received from both parties and have been duly considered.  The following Findings of Fact are based on the entire record, including observation of the witnesses and their demeanor.

FINDINGS OF FACT

          1.  Petitioner began employment at the Sharonville Branch of the Cincinnati Post Office in January 1993 as a “casual carrier.”  Casual carriers are part-time employees used to assist regular mail carriers when a regular carrier cannot complete a route within normal duty hours.  (Transcript 9).^[1]  Work schedules for casual carriers are posted weekly, and they usually report to work in mid to late morning.  When assigned to assist a regular carrier, casuals are normally given the end portion of the regular’s route.  (Tr. 99).  Casuals do not have regular routes of their own, and are told the routes on which they are to assist when they report to work each day.  Often, a casual will be assigned parts of several different routes to complete.  (Tr. 127-28).

          2.  Casuals are used only to deliver mail.  The mail is “cased,” i.e., placed in cases, trays, or satchels, in proper order for delivery, by the regular carrier before it is turned over to the casual.  (Tr. 20, 41, 57-8, 106).

          3.  “Registered” mail is the Postal Service’s most secure form of service.  A “chain of custody” is maintained, in that every postal employee who takes possession of a piece of Registered Mail™ must sign for it.  The final postal signature is normally that of the carrier who delivers the mail.  That carrier will then obtain a signed receipt (PS Form 3849) from the customer to whom it is delivered.  (Tr. 10, 53).  If there is no one at the delivery address to receive the mail, the carrier will leave a notice (a copy of Form 3849) at the delivery address and will return the piece to the “accountable clerk” at the post office.  This person, whose job it is to maintain control over accountable mail, will secure the piece until it is picked up by the customer, or reassigned to a carrier for re-delivery. 

          4.  On April 13, 1993, David Thompson, a regular carrier at the Sharonville Branch, signed for a piece of Registered Mail, on a PS Form 3867 maintained by the “accountable clerk,” to be delivered to Greg Gruen at an address on Mr. Thompson’s regular route.  Mr. Gruen ran a jewelry business from his home and often received Registered Mail parcels.  (Tr. 99).  This particular one contained a small piece of jewelry, mailed by Holland Jewelers in Moline, Illinois, and valued at $1852.00.  The package was approximately six inches square and one inch thick.

          5.  At some time during the morning of April 13, while Mr. Thompson was still “casing” his mail, management decided that Mr. Noble would assist on Thompson’s route.  Because the Gruen address was toward the end of Thompson’s route, the registered parcel was included in that portion of his mail to be turned over to Noble.  Thompson told Noble that there was a registered package. (Tr. 101, 129).  The usual procedure for transferring the parcel would have been for the accountable clerk to initial the Form 3867 and make a separate entry on the form indicating that the parcel, by its identifying number, was reassigned to Noble.  Noble would then sign on the line of the new entry.  Because no accountable clerk was available, Thompson simply crossed out his name and had Noble sign on the same line.^[2]  (Tr. 101-02; PS Ex. 2, p. 3).  Thompson told Noble that he (Thompson) could put the parcel in sequence with other parcels, or he (Noble) could take it with him.  Noble told Thompson to put it in with the other parcels.  Noble saw the parcel, but did not handle it.  (Tr. 101-102, 152-53).

          6.  Mr. Noble was also assigned to assist on other routes on April 13.  Because Mr. Thompson’s mail was not yet ready for delivery, Noble left to deliver the other routes and returned later in the day to pick up and deliver the mail on Thompson’s route.  (Tr. 128, 153).

          7.  When a carrier has signed for a piece of Registered Mail, the carrier must return to the accountable clerk after completing the route and turn in either the piece of mail or a receipt signed by the customer to whom it was delivered.  (Tr. 12, 24).  When Noble returned from completing Thompson’s route on April 13, 1993, he had neither, and therefore could not be properly “cleared” by the accountable clerk.  (Tr. 118; PS Ex. 2, p. 3).  It has not been determined what happened to the parcel, or whether it was lost before or after Mr. Noble picked up Mr. Thompson’s mail for delivery on the afternoon of April 13.  No one has accused Mr. Noble of stealing it, and there is no evidence to suggest that he did.  The mailer who registered the item eventually filed a claim for the loss, and the Postal Service paid $1852.00.

          8.  Sharonville Post Office records (PS Forms 3867) show that Mr. Noble had been assigned pieces of Registered Mail on four occasions before the April 13, 1993 incident.  On January 25, 1993, a registered item was reassigned from Mr. Pitman to Mr. Noble, and was delivered by Noble.  (PS Ex. 2, p. 1).  On January 27, 1993, another registered item was reassigned from Pitman to Noble and was returned to the accountable clerk by Noble after leaving a notice at the delivery address.  (PS Ex. 2, p. 1).  On March 19, 1993, Noble was assigned a registered item, which he returned to the accountable clerk after leaving a notice, and on March 20, 1993, Noble was reassigned another registered item from Pitman, which he returned to the accountable clerk after leaving a notice.  (PS Ex. 2, p. 2).  The three log entries showing reassignment from Pitman to Noble indicate that, on those three days, Noble assisted on Pitman’s route in the same manner as he was assigned to complete Thompson’s route on April 13, 1993.  (Tr. 77-80).

CONTENTIONS OF THE PARTIES

          The Postal Service’s position is simply that an employee who signs for a piece of Registered Mail is personally responsible for it, and is required to pay the value of the item if it is lost while signed out to that employee.  This understanding is reflected in the testimony of witnesses (Tr. 18, 74-5, 88, 124) and, to some extent, in Handbook M-41, City Delivery Carriers, Duties and Responsibilities.  Section 260 is titled “Accountable Items,” and subsection 261.243 states, in part, “Individual responsibility is assumed by the carrier upon receipt.”  (Pet. Ex. 1).

          Petitioner’s contention is that, as an inexperienced casual carrier, he had not been trained in how to handle accountable mail and, therefore, should not be held liable.  He understood that a carrier was supposed to get a receipt whenever a piece of mail had a receipt form attached to it, but did not know why, and did not know the difference between registered, certified, or COD mail.  (Tr. 129, 137, 150). Nor did he know the significance of his signing for a piece of registered mail.  (Tr. 145-46, 151).  He claimed that his training consisted of nothing more than accompanying a regular carrier, Mr. Pitman, on a delivery route for a day or two.  (Tr. 130-31).  He also asserted, in his May 31, 1995 letter of appeal to the Cincinnati Postmaster that accompanied his Petition, that he delivered every piece of mail that was given to him, and that he always obtained signatures for any accountable mail that was included in the mail prepared for him.

          It is noted here that Mr. Noble’s testimony was somewhat different than what was implied in both his May 31, 1995 appeal letter, and his earlier July 16, 1993 appeal letter.  In both those letters he argued that he could not acknowledge that he ever received a registered package on April 13, 1993, because the practice was that someone else always prepared the mail for delivery and that he would just sign the accountable form without knowing what accountable mail he had.  However, it is clear from his own testimony, and that of Mr. Thompson, that on April 13 Thompson specifically told him there was a registered parcel, he saw the parcel, and he knew what he was signing for.

DISCUSSION

          First, it must be determined what the standard of liability is for carriers who handle registered mail.  The Postal Service position seems to be one of “strict liability,” i.e., that one who last signs the Form 3867 is liable for the loss unless he, or she, presents evidence that would relieve him, or her, of responsibility.  This would be similar to the standard that is applied to stock shortages, under the standard stated in Handbook F-1, Post Office Accounting Procedures, Section 130 - Liability: “The postmaster consigns postal funds and accountable paper to other employees.  Employees are held strictly accountable for any loss unless evidence establishes they exercised reasonable care in the performance of their duties.”  There is another Postal Regulation, however, that deals specifically with Registered Mail.  This is Handbook DM-901, Registered Mail, an excerpt of which is attached to Respondent’s Post-Hearing Brief:

733 Postal Employees’ Responsibility
Postmasters and other postal employees will be held
personally responsible for the wrong delivery, depredation,
or loss of any Registered Mail due to negligence or disregard
of instructions.

          This is not a strict liability standard.  It places the burden on the Postal Service (Respondent) to show that the employee (Petitioner) disregarded instructions or was negligent in some other way, and that this negligence was the proximate cause of the loss.^[3]

          Negligence is the failure to use ordinary or reasonable care under the circumstances.  In this case, “the circumstances” include Mr. Noble’s training and experience in the duties and responsibilities of a mail carrier.  Two scenarios must be examined.  In the first, the easier to resolve, assume that the parcel was still with Mr. Thompson’s mail when Mr. Noble returned to the post office and picked it up for delivery.  If that were true, then Noble either lost it while it was in his physical custody, or he delivered it without getting the required receipt, perhaps by just putting it in a mailbox.  The latter would amount to a disregard of instructions, as his prior experience in handling Registered Mail (see Findings of Fact, para. 8), and his May 31, 1995 letter of appeal, demonstrate that he knew how to deliver Registered Mail, including the requirement to get a signed receipt.  The same evidence also shows that he knew registered mail required some special care.  This much is true even if his training was not fully what it should have been.  If he lost the parcel while he had physical custody of it, therefore, this would be presumed to constitute negligence, as it would for any mail carrier who lost a piece of registered mail while carrying it on a delivery route.

          The second scenario, which assumes that the parcel disappeared before Mr. Noble returned to pick up Thompson’s mail, presents a closer question.  Was Noble negligent in leaving the registered parcel in the post office, with the mail that Thompson had “cased,” while he (Noble) left to deliver mail on his other routes?^[4]   It is here that the conflicting testimony over Mr. Noble’s training becomes relevant, as the degree of care he should have been expected to exercise depends on his awareness of the need for maintaining security of registered mail, and of the procedures for handling Registered Mail.  Undoubtedly, the training he actually received falls somewhere between the idealistic four-stage process described by Mr. Brummett, and the “here’s the mail - go deliver it” approach Mr. Noble says was used at Sharonville.  It could be argued that, as a relatively new employee, it was reasonable for Noble to think that the parcel was secure enough because it was still with the mail that Thompson was working on.  As noted above, however, Noble had prior experience in signing for and delivering, or attempting to deliver, Registered Mail.  The fact that he went through the process of signing for a piece of mail, and then having to report back to the accountable clerk to be cleared at the end of the day, on four separate occasions, had to have impressed upon him the importance that was attached to the security of Registered Mail.  On April 13, therefore, when Thompson crossed his own name off the Form 3867 and had Noble sign in his place, Noble must have realized that Thompson’s purpose in doing this was to relinquish any responsibility for the parcel.  Noble also had to have known that Thompson would very likely leave to deliver his own route before Noble returned, and that no one else would be watching the registered parcel for him.  Under this second scenario, Petitioner was negligent in leaving the post office and leaving behind a Registered Mail parcel that he had signed for on PS Form 3867.

CONCLUSION

          The preponderance of evidence establishes that, depending on when and how the registered parcel was lost on April 13, 1993, Petitioner either disregarded instructions, by delivering the parcel without obtaining a receipt, or was negligentin failing to maintain proper security of the parcel.  He was properly held liable for $1852.00.^[5]

Bruce R. Houston
Acting Chief Administrative Law Judge

^[1]  Hereafter, references to the transcript shall be “Tr.”  Postal Service Exhibits shall be “PS Ex.” and Petitioner’s Exhibits shall be “Pet. Ex.”

^[2]  This procedural irregularity had no impact on the loss of the parcel, and has no impact on the decision in this case.

^[3]  See Craig A. Wilson, P.S. Docket No. DCA 94-153 (February 21, 1995), as an example of a case in which different postal regulations prescribe different standards of proof, depending on the nature of the loss.

^[4]  There is no evidence that Noble disregarded instructions in leaving the parcel behind.  To the contrary, the essence of Mr. Brummett’s testimony on this point was that it was up to the carriers to assume whatever risk they wished, because once a carrier signed, the carrier would be liable no matter what happened to the parcel. (Tr. 24, 58).

^[5]  Because of the unusual history of this case, Petitioner, who has since become a full-time postal employee, has already had the money deducted from his pay.