Appeal of
DAVID FINLEY
Under Contract No. HCR 598 AD
PSBCA No. 3922

APPEARANCE FOR APPELLANT:
Stephen R. Brown, Esq.

APPEARANCE FOR RESPONDENT:
Samuel J. Schmidt, Esq.

OPINION OF THE BOARD ON MOTION FOR RECONSIDERATION

            Respondent, United States Postal Service, has filed a motion requesting that the Board reconsider and amend one of the Findings of Fact in the Board's original Opinion, David Finley, PSBCA No. 3922, 98-2 BCA ¶ 29,989, and make corresponding adjustments in the quantum portion of the Opinion.  Appellant opposes the motion.

            Respondent contends that the portion of Finding of Fact 20 in which the Board found that, "[t]he time required to run each of the second-truck trips was approximately three hours.…" is "clearly erroneous."  Respondent relies largely on the contents of PS Forms 5397 (Appeal File, Tabs 30JJ-KK), which were filled out by Postal Service dock personnel (expediters) at the Missoula Post Office and were to record the times of the second-truck trips.  Respondent argues that the average travel time shown by the Forms 5397 was approximately 80 minutes which, when added to approximately 40 minutes for loading and unloading at the post office, totaled 120 minutes, or two hours instead of the three hours found by the Board.  Accordingly, Respondent requests that Finding of Fact 20 be amended to reflect two hours instead of three hours and that the cost of each second-truck trip be reduced to $42.17.

            Appellant argues that the Board properly relied on testimony by the driver who operated the truck on the trips in question that the total time was approximately three hours, and on similar testimony by Appellant.  Appellant also points to testimony, including testimony by Respondent's personnel, that some of the documents relied on by Respondent were "notoriously inaccurate."  Appellant argues that the Forms 5397 relied on by Respondent are insufficient to show that the Board's decision was clearly erroneous.

            Having considered the arguments, we agree with Appellant that the motion for reconsideration should be denied.  In drafting the original Opinion, the Board was aware of the Forms 5397 relied on by Respondent.  However, the Board was persuaded by the testimony of those who had personal knowledge regarding the actual duration of the trips, and who were subject to cross examination during the hearing.  Further, as argued by Appellant, there was testimony by Respondent's personnel that some forms used to record information regarding trips were "historically" not filled out accurately (Transcript, page 470).  While that testimony related specifically to a different Postal Service form (Form 5398), we note that the Forms 5397 relied on by Respondent were filled out by the same personnel (expediters) who filled out the Forms 5398 and contained similar types of information, and there is no evidence that the information on the Forms 5397 was any more accurate.

            On balance, the Board was persuaded by Appellant's evidence that the length of each trip was approximately three hours, and Respondent's argument has not persuaded us that we were in error.  Accordingly, Respondent's motion for reconsideration is denied, and the Board's original Opinion is affirmed.

David I. Brochstein
Administrative Judge
Vice Chairman

I concur:
James A. Cohen
Administrative Judge
Chairman

I concur:
Norman D. Menegat
Administrative Judge
Board Member