Appeal of
ARTHUR NAPIER
Under Contract No. HCR 25264
PSBCA Nos. 3044 & 3140

APPEARANCE FOR APPELLANT:
Letisha R. Bika, Esq.

APPEARANCE FOR RESPONDENT:
Deborah A. Davis, Esq.

OPINION OF THE BOARD

            Appellant, Arthur Napier, has appealed the default termination of his highway  transportation contract with the United States Postal Service, Respondent.[1]  A hearing was held limited to the issue of the propriety ofthe default termination.

FINDINGS OF FACT

            1.  Appellant was first awarded contract HCR 25264, for box delivery of mail between Racine and Julian, West Virginia, in 1977 (Appeal File Tab ("AF") 7, Section 13.E.; Hearing Transcript page ("Tr.") 293).  Through renewals of the contract, Appellant continued to perform the route until the contract was terminated in 1991.  The contract was last renewed in 1988, for the term July 1, 1988, through June 30, 1992 (AF 7).

            2.  When Appellant began performing the contract in 1977, the route was in disarray: mailboxes were not numbered in sequence, many did not bear a name or number, and many did not comply with Postal Service standards.  Appellant and the Postal Service renumbered the mailboxes and required customers to erect mailboxes conforming to Postal Service standards.  This angered many customers on the route, some of whom filed complaints about Appellant.  (Tr. 106-107, 293-96).

            3.  The contract provided:

"3.  Law and Regulations Applicable.  This contract and the services performed thereunder are subject to applicable laws and regulations made pursuant thereto.  The Contractor shall faithfully discharge all duties and  trusts imposed upon him by such laws and regulations."  (AF 7, Basic Surface Transportation Services Contract General Provisions, PS Form 7407, Oct. 1986  ("GP") 3).

            4.  Postal Service Handbook PO-504, "Highway Contract Routes -- Box Delivery  Service," May, 1983[2] ("Handbook PO-504") and the Postal Service Domestic Mail Manual, Issue 27, June 19, 1988 ("DMM") established delivery requirements applicable to box delivery contracts.  Both Appellant and the Postal Service understood that these provisions governed performance of Appellant's contract.  (AF 7, GP 16 (a)(2); AF 8, 12, 18, 24-26; Tr. 16-17,

140, 194; see 39 C.F.R. s 211.2 (a)(3)).

Accountable Mail and Oversized Parcels

            5.  Under both the DMM and Handbook PO-504, as well as specific provisions of Appellant's contract, Appellant was required to deliver parcels and accountable mail, which includes registered, certified, insured, COD, Special Delivery, and Express Mail (AF 7, Section 13.F.2, GP 4 (a) and (b)(3) iv; DMM § 157.33; Handbook PO-504 §§ 311.2d, 324.1; Tr. 15, 47).

            6.  Applicable postal regulations required that Appellant attempt to deliver registered and certified mail on his first trip following its receipt at the post office and leave a notice in the mailbox if he was unable to deliver the accountable mail (DMM s 912.53; Handbook PO-504 ss 342, 345; AF 18;  Supplemental Appeal File Tab ("SAF") 49; Tr. 47, 71-72).  Parcels that were too large to leave in the customer's mailbox were to be taken out on Appellant's first trip after the parcel arrived at the post office.  Appellant was required to attempt delivery of oversized parcels by sounding his horn to attract the attention of the customer, even if the customer had notified the post office not to leave parcels that did not fit inside the mailbox if the customer was not present to accept delivery (AF 7, GP 4 (a) and (b)(1) i; AF 14, 15, 22; Handbook PO-504 § 332.3; Tr. 72, 197, 210, 217).  Appellant objected to attempting delivery of accountable mail and oversized parcels, preferring to leave the item at the post office and to deliver a notice to the customer that it had arrived (Tr. 19, 134, 190-91, 301, 305, 310, 330-31).  Nevertheless, he was aware of the requirements as he had been specifically and directly advised of them on many occasions at meetings and in correspondence, both before and after the 1988 renewal of the contract (AF 8, 17, 18, 20, 24; SAF 36, 46, 49-52; Tr. 16-20, 28-32, 65-66, 68, 81-82, 115, 120, 133, 174, 177-78, 190-91, 196, 303).[3]

            7.  On many occasions after the 1988 contract renewal Appellant failed to take out accountable mail to attempt delivery (AF 17; Tr. 145, 163, 190-91, 199).  He had never delivered Express Mail arriving at the Ashford Post Office until July 20, 1990, when he was directed by the postmaster, over his strenuous objection, to do so (AF 11).

            8.  On many occasions after the last contract renewal, Appellant failed to take oversized parcels on his route to attempt delivery (SAF 36, 44; Tr. 141-42).  On July 23, 1990, Appellant refused a specific instruction of the Ashford Postmaster to take out an oversized parcel to attempt delivery, using loud and offensive language toward the postmaster in the process (AF 12, 13; Tr. 85-87, 143-45, 223-24).  After a meeting with Charleston Division postal officials on September 26, 1990, in which he was specifically directed to follow postmasters' instructions and to attempt delivery of accountable mail and oversized parcels (AF 8), Appellant began taking parcels out from the Ashford Post Office for delivery on his route (AF 12, 13; Tr. 85-87, 141-145, 161-164).  However, he did not attempt delivery of the Ridgeview oversized parcels he was required to carry on the route (Tr. 178-9, 199, 221, 224; contra Tr. 303).

Courtesy

            9.  Handbook PO-504 s 316 provides, "Contractors and their employees must display a courteous and helpful attitude to customers and postal personnel."  (SAF 53).

            10.  Appellant was aware of the requirement that he act courteously and civilly toward postal officials and customers. On many occasions, both before and after renewal, postal officials had directed him to conduct himself civilly with postmasters and customers and to follow instructions given him by the postmasters (AF 17, 18, 28, 29, 32; SAF 35; Tr. 24-26, 115-18).

            11.  Appellant continued to act uncivilly and disrespectfully toward postmasters and customers after the renewal.  On July 23, 1990, when he refused a direct order from the postmaster at Ashford that he deliver a parcel on the route (Finding 8), he yelled and used offensive language (AF 12; Tr. 144-45, 162).  Appellant again spoke rudely to the Ashford Postmaster the next Monday when she tried to show him the regulation that governed delivery of the parcel (AF 12; see SAF 33 (Consumer Service Card M2 300 136)).  Appellant spoke rudely and disrespectfully to the postmaster at Ridgeview on many occasions after the renewal (SAF 41; Tr. 200, 221).[4]

            12.  As early as 1983, after a complaint from a customer whom Appellant had called "a crude and rude person" in a note left in her mailbox, Appellant was directed by postal officials to stop putting personal notes in customers' mailboxes (SAF 35). Despite repeated directions to stop putting handwritten notes in mailboxes, Appellant continued to do so (AF 17), drawing additional complaints from customers.[5]  Postal officials told him that any problems with customers were to be brought to the attention of the postmaster, who would deal directly with the customers (AF 17, 29-32; SAF 40; Tr. 23-25, 35, 80-82, 111, 314-15, 320).  After the renewal, the Pittsburgh Transportation Management Service Center ("TMSC") also received complaints from customers about Appellant's use of abusive language toward them (Tr. 91).

            13.  The Postal Service rules governing conduct on postal property, which are published in the Code of Federal Regulations, provide, at 39 C.F.R. s 232.1(e):

"Disorderly conduct, or conduct which creates loud and unusual noise, ... or which tends to impede or disturb the public employees in the performance of their duties, or which otherwise impedes or disturbs the general public in transacting business or obtaining the services provided on property, is prohibited."

Last Warning

            14.  In response to reports of Appellant's July 23, 1990 confrontation with the Ashford Postmaster, postal officials met with Appellant on September 26, 1990.  Appellant was again directed to take out accountable mail and oversized parcels and attempt delivery on his first trip after the post office received the item.  He was told to stop his incivility toward postmasters and to follow their instructions.  Appellant was warned that these issues had all come up before, that they had been discussed in previous meetings, that he had been directed to comply with the contract requirements and instructions of the postmasters, and that no more violations would be tolerated.  He was also told his contract would be terminated if he failed to perform as required, that the meeting constituted the last warning he would receive and that further violations would result in a recommendation that his contract be terminated for default (AF 8; Tr. 30-33, 133, 153, 239, 290-91, 299).

Termination of Appellant's Highway Contract

            15.  A certified letter for a customer on Appellant's route arrived at the Ridgeview Post Office on January 19, 1991. Appellant did not take it out on the route to attempt delivery on that day or thereafter, and the customer picked up the letter at the post office on January 25, 1991.  The customer filed a complaint with the postmaster that Appellant had failed to redeliver the certified letter upon her request and that he had placed a note she considered "nasty" in her mailbox suggesting she buy her stamps at the post office (AF 6; Tr. 203).[6]

            16.  The Ridgeview Postmaster forwarded the complaint through the contract's Administrative Official to the Manager, Logistics and Distribution Systems, in the Charleston Division. The Administrative Official advised Appellant of the complaint and that it had been forwarded to the Charleston Division (Tr. 187- 89, 316).

            17.  On February 11, 1991, Appellant wrote to the Division to explain his version of the events.  In that letter, he insisted that he had attempted delivery of the certified letter (SAF 40; Tr. 313, 328-29).[7]

            18.  On February 21, 1991, after reviewing the file relating to the route, the Manager, Logistics and Distribution Systems, sent the complaint to the contracting officer at the TMSC with a recommendation that the contract be terminated for default (AF 5; Tr. 33-35, 131-33, 138).  Also on February 21, the Manager, Logistics and Distribution Systems, notified Appellant of the customer complaint and that his office had asked the TMSC to terminate Appellant's contract for default in view of this most recent violation of contract requirements and the many warnings Appellant had been given over the years (SAF 39). Appellant did not contact the Charleston Division or the TMSC thereafter.

            19.  After requesting and reviewing the Division's file on this route and noting that Appellant had been given a final warning, the contracting officer terminated Appellant's contract for default under GP 16 (a)(1) and (2) on March 13, 1991 (Tr. 92, 94, 102-103, 235-240, 243, 245-46, 260-61, 273).  The contracting officer stated the reasons for termination as follows:

"1.  Failure to sell stamps and supplies. (Section 4 (b) I, PS Form 7407)

2.  Failure to deliver parcels, Certified and Express Mail.(Section 4 (b), II, III, IV)

3.  Use of abusive language to postmasters and patrons." (AF 4)

            20.  The contract specifically allowed the contracting officer to terminate the contract for default "for Contractor's failure to perform service according to the terms of the contract; [and] if the Contractor is the subject of administratively determined violations of the Postal laws and regulations and other laws related to the performance of the service" (AF 7, GP 16 (a)(1-2)).

            21.  Postal regulations describe procedures for terminating a highway contract, which procedures include notice of deficiencies using PS Form 5500, Contract Route Irregularity Report, a meeting with the contractor to discuss the irregularities and warn him or her that termination may follow, and a three-day notice to the contractor of impending termination (Postal Operations Manual §§ 537.22-537.24; Handbook PO-504 s 135.1).

DECISION

            Respondent contends that Appellant failed to comply with the requirements of his contract, and that the termination of his contract was, therefore, justified.  Respondent argues that Appellant violated requirements that he not leave notes in customers' mailboxes, that he refrain from using abusive language to customers and postmasters, that he attempt delivery of accountable mail and oversized parcels, that he not deliver dated mail before the stated date, and that he collect all outgoing mail from mailboxes when the flags were raised. Respondent further argues that the failures were not excusable and occurred notwithstanding specific, repeated directions from postal officials that Appellant follow these requirements. Finally, Respondent argues that the procedures in the Postal Operations Manual for termination of a highway contract do not apply to Appellant's box delivery contract, but that even if they did, any failure of the Postal Service to follow those procedures when terminating Appellant's contract does not undermine the validity of the termination.

            Appellant argues that the contracting officer was not justified in terminating his contract for default.  Appellant contends that the regulations governing delivery of accountable mail and oversized parcels were ambiguous and that in terminating his contract postal officials, including the contracting officer, improperly relied on events that occurred before Appellant's contract was last renewed in 1988.  Appellant also contends that Respondent improperly seeks to justify the default termination by relying on alleged performance deficiencies not mentioned by the contracting officer in his final decision.  He further contends his termination resulted from a vendetta by the Ridgeview Postmaster and animosity of route customers still angry over his reorganization and renumbering of the route in 1977.  He claims that it was the postmasters and not he that were unprofessional and rude.  Finally, Appellant argues that the termination must be set aside because Respondent failed to follow the procedures established in its own regulations and policies when it terminated his contract.

            Appellant's contract required that he comply with applicable postal regulations, and, after the renewal of the contract in 1988, Appellant was told repeatedly by postal officials that he was required to attempt delivery of accountable mail and oversized parcels, that he was required to treat postmasters and customers civilly, and that he was to follow instructions given him by the postmasters.  Nevertheless, on many occasions after his contract was renewed, Appellant failed to attempt delivery of accountable mail and oversized parcels, was discourteous to postmasters and customers and refused to follow instructions of the postmasters.[8]  His outbursts at post offices, including offensive remarks and cursing, and his refusal to follow direct instructions from postmasters also demonstrate disruptive behavior in violation of the rules of conduct at post offices.  See 39 C.F.R. s 232.1(e).  Thus, termination was warranted.[9]  See Eddy M. Acevedo, PSBCA No. 3217, 93-1 BCA ¶ 25493; Marvin K. Reese, PSBCA No. 3139, 92-3 BCA ¶ 25,188; Pascal Redfern, PSBCA No. 1512, 87-1 BCA ¶ 19,646 recon. denied 87-3 BCA ¶ 19,983; Bryant L. Millwee, PSBCA No. 1249, 84-2 BCA ¶17,343; James Rabon Brazell, PODBCA No. 198, September 15, 1967.

            Appellant's violations of the delivery requirements and his failure to conform to the required standards of conduct were not excusable.  The regulations governing attempted delivery of accountable mail and oversized parcels were unambiguous, and after the repeated instructions of postal officials, Appellant should have known he was required to attempt delivery.  That he objected to the requirement does not mean it was ambiguous.  His explanation of his failure to deliver the certified letter in January 1991 which precipitated the termination was not credible. Although Appellant testified that the Ridgeview Postmaster told him not to take the certified letter out on the route, in his letter of explanation written just three weeks after the incident Appellant insisted he had attempted delivery.  His testimony that he was told not to attempt delivery of the letter came after Respondent introduced evidence thoroughly refuting Appellant's earlier contention that he had attempted delivery.

            Appellant did not demonstrate by credible evidence that his outbursts and disrespectful conduct were provoked by Postal Service employees or that it was the postmasters, not he, who were cursing and yelling.  Conflicts in testimony on these points have been resolved against Appellant.  He has not shown that the customers' complaints about him were unreliable and motivated by ill will remaining from his 1997 reorganization of the route numbering.  See Fred A. Arnold, Inc., ASBCA Nos. 20150, 22154, 84-3 BCA ¶ 17,624 at 87,843.

            The termination was warranted and was not invalidated by any failure of Respondent to comply with its usual termination procedures.  See Bowman's Transport Co., PSBCA No. 1088, 1089, 1092, 84-1 BCA ¶ 17,217 at 85,728; Larry J. Bunker, PSBCA No. 1067, 83-1 BCA ¶ 16,542 at 82,254.  Appellant was warned of the possibility of the default action and has not shown that he was prejudiced by any failure of Respondent to follow the procedures described in postal regulations.  See Homer J. Sappington, PSBCA No. 3162, 93-3 BCA ¶ 26,042; Marlena R. Antrim, PSBCA No. 2149, 88-3 BCA ¶ 21,108 at 106,563.  Appellant was well aware of his precarious status.  He had been given ample direction as to what was expected of him on the route, many opportunities to correct his offending conduct, and unequivocal warning that termination action would be taken if he failed to perform according to the requirements of the contract and the applicable delivery regulations.  In the September 26, 1990 meeting, he was told there would be no more warnings.  Appellant was advised when the final complaint was referred to the Division, and he submitted a letter of explanation.  He was notified when the Division recommended to the contracting officer that Appellant's contract be terminated, yet Appellant did not raise with the contracting officer his defenses to the termination.  He has had an opportunity in these appeals to challenge Respondent's actions, see Melvin R. Kessler, PSBCA Nos. 2820, 2972, 92-2 BCA ¶ 24,857, but he has not demonstrated that the termination for default constituted an abuse of the contracting officer's discretion.        The appeals are denied.

Norman D. Menegat
Administrative Judge
Board Member

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
James D. Finn, Jr.
Administrative Judge
Vice Chairman

[1] The proceedings in PSBCA No. 3044 were suspended to allow Appellant to submit to the contracting officer a certified claim for monetary relief he first sought in his complaint. Appellant's appeal of the denial of the monetary claim was docketed as No. 3140, and the two cases were consolidated for hearing and decision.

[2] Handbook P0-504 establishes the policy for operation and administration of highway contract box delivery service (Transmittal Letter, May, 1983).  The May, 1983, issue was effective when Appellant's contract was last renewed, but subsequent editions of the Handbook (September 1, 1988, and March 1, 1989, the latter of which is AF 53) made no substantive changes to the sections relevant to this appeal.

[3] Appellant was not required to carry out accountable mail or oversized parcels where he would not be returning to the delivery post office that day to return items he had not been able to deliver.  Specifically, Appellant was not required to carry accountable items from the Ridgeview Post Office on the afternoon run from Ridgeview to Nellis because he did not return to Ridgeview before completing his route (AF 15, 18, 22; Tr. 17-19, 68, 197).

[4] Appellant accuses the postmasters of provoking him, cursing and yelling at him, and denies any incivility toward customers (SAF 41; Tr. 297-98, 318-319).  We find Respondent's witnesses' testimony in this regard more credible based on their demeanor and the content of their testimony.  Further, Appellant had a long history of discourteous treatment of postmasters and customers (AF 17, 21, 28-30, 32; Tr. 63, 117-18).

[5]Appellant testified that the notes were to notify customers who had left money in their mailbox for stamp purchases that he did not have available the items requested (Tr. 314-315). Except for the note from 1983, none of the notes Appellant left in mailboxes are in the record.

[6] The note is not in the record, but Appellant admits placing a note in the customer's mailbox (Tr. 313-14; SAF 40).

[7] At the hearing, after Respondent had introduced evidence demonstrating that Appellant did not attempt delivery (Respondent's Exhibits 1, 2; Tr. 204-205), Appellant testified that his recollection of the events when he wrote the February 11, 1992 letter of explanation, less than a month after the incident occurred, was faulty and that, in fact, he had not attempted delivery but that the customer had been out of town, Appellant had so advised the postmaster, and the postmaster had told him not to attempt delivery (Tr. 312-13, 330).

[8]Continuing to place notes in customers' mailboxes despite specific instructions from postal officials to stop doing so and his refusal to follow other instructions of postal officials demonstrated Appellant's disrespectful and uncooperative attitude (See Handbook PO-504 s 316). Although the notes are not in the record and there appears to be nothing wrong with Appellant placing notes in mailboxes to alert customers that he did not have the stamp supplies they had requested, it is undisputed that the notes provoked complaints from customers, and it was within the authority of postal officials to direct Appellant not to place notes of any kind in mailboxes.

[9]In defending a termination before the Board, Respondent is not limited to the grounds stated by the contracting officer in his final decision.  Kirk Bros. Mechanical Contractors v. Kelso, Nos. 92-1567, 93-1011, slip op. at 3  (Fed. Cir. Jan. 13, 1994); Joseph Morton Co. v. United States, 757 F.2d 1273, 1277 (Fed. Cir. 1985); Leo Swanson, PSBCA No. 2641, 91-1 BCA ¶ 23,632.  Nevertheless, we need not address the additional justifications Respondent urges in support of the termination because, when considering Appellant's entire record of performance since the renewal, see F.W.H. Motor Transit, Inc., PSBCA No. 1317, July 30, 1985 recon. denied November 22, 1985, the grounds stated by the contracting officer were sufficient to justify the termination for default.