In the Matter of the Petition by            )
                                                           )
TOM MARTIN                                      )
1026 Majesty Court                            )
                                                           )
            at                                            )
                                                           )
Henderson, NV 89105-3119              ) P. S. Docket No. DCA 95-90


APPEARANCE FOR PETITIONER:      Tom Martin
                                                          1026 Majesty Court
                                                          Henderson, NV 89105-3119

APPEARANCE FOR RESPONDENT:   Robed P. Sindermann, Jr., Esq.
                                                          United States Postal Service
                                                          Legislative Division - Law Department
                                                          475 L'Enfant Plaza, S.W.
                                                          Washington, DC 20260-1114

This Petition was filed after Petitioner received a March 8, 1995 Letter of Demand in which Respondent asserted a claim against Petitioner and stated its intention to collect the amount of the alleged debt from Petitioner's pay. The Letter of Demand advised Petitioner, a member of a bargaining unit, that collection of the debt from his pay could be challenged under provisions of the collective bargaining agreement.

Respondent has filed a motion to dismiss the Petition because Petitioner is a member of a collective bargaining unit. Petitioner opposes the motion asserting that the Postal Service regulations appearing at 39 C.F.R. Part 961, which describe the rules of procedure applicable to hearings conducted pursuant to Section 5 of the Debt Collection Act of 1982, 5 U.S.C. § 5514, do not specifically preclude petitions by members of collective bargaining units. Additionally, he asserts that at the time the Postal Service alleges the debt arose, Petitioner was a postmaster and not a member of a collective bargaining unit. Finally, he argues that a Memorandum of Understanding between Respondent and two unions extends the hearing procedure of 39 C.F.R. Part 961 to employees who are members of collective bargaining units.

Under subchapters 450 and 460 of the Employee and Labor Relations Manual ("ELM"), the hearing procedures of 39 C.F.R. Part 961 are available only to non-bargaining unit employees. Section 451.1 of the ELM provides that the procedures for non-bargaining unit employees, which inclucle resort to the hearing afforded by 39 C.F.R. Part 961, "apply to the collection of any debt owed the Postal Service by a current postal employee who is not included in any collective bargaining unit." Subchapter 460 provides that Respondent is to collect debts from those in collective bargaining units by following the requirements of the applicable collective bargaining agreement. See ELM 460, 462.3. The procedures of subchapter 460 "apply to the collection of any debt owed the Postal Service by a current postal employee who is included in any collective bargaining unit." ELM 461.1. The Letter of Demand specifically identified the collective bargaining agreement as providing the means for any challenge to collection of the debt from Petitioner's pay.

That Petitioner was a postmaster and not a member of a collective bargaining unit at the time Respondent alleges the debt came into existence does not entitle Petitioner to the procedures of Part 961. Sections 450 and 460 of the ELM focus on the status of the employee at the time the Postal Service initiates the collection action by issuing either a Letter of Demand for bargaining unit employees or Notice of involuntary Administrative Salary Offsets for non-bargaining unit employees. Therefore, because Petitioner is a member of a bargaining unit and was when he received the Letter of Demand, the procedures available to him to challenge collection of the debt are those of the collective bargaining agreement, as described in the Letter of Demand and ELM 460, regardless of his status when the debt is alleged to have arisen.

My conclusion that Petitioner has available only those procedures applicable to members of collective bargaining units is premised on the assumptions that those procedures are available to him and that he will receive meaningful consideration of his challenge to the proposed collection notwithstanding his status as a postmaster when the debt is alleged to have been incurred. If, for reasons associated with the fact that the debt allegedly arose while Petitioner was a postmaster, the procedures of the applicable collective agreement do not afford him adequate review of the proposed collection, he may reinstate his Petition for consideration under 39 C.F.R. Part 961.

The Memorandum of Understanding that Petitioner contends affords a hearing to collective bargaining unit employees was executed in July of 1994, by the American Postal Workers Union, the National Association of Letter Carriers and Respondent. The Memorandum of Understanding addressed Respondent's collection of debts from bargaining unit employees, but it contemplated the issuance of implementing regulations by Respondent before the procedures of 39 C.F.R. Part 961 were to be available to collective bargaining unit employees. Therefore, the Memorandum has not, in and of itself, changed the limitations in the ELM and, until implementing regulations are issued, does not afford a basis for granting Petitioner access to the procedures of 39 C.F.R. Part 961. See Allen Hazen et al., P.S. Docket No. DCA 94-174 et al., January 23, 1995.

Respondent's motion is granted. The Petition is dismissed, but, as set forth above, the dismissal is without prejudice to reinstatement of the Petition should the procedure under the collective bargaining agreement not provide Petitioner an adequate opportunity to chat[enge the collection for reasons associated with the debt allegedly arising while Petitioner was a postmaster.

Norman D. Menegat
Administrative Judge