                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

AMERICAN POSTAL WORKERS UNION,                    :
AFL-CIO,                                          :
                                                  :       Civil Action No.:      13-1694 (RC)
       Plaintiff,                                 :
                                                  :       Re Document Nos.:      8, 13
       v.                                         :
                                                  :
UNITED STATES POSTAL SERVICE,                     :
                                                  :
       Defendant.                                 :

                                  MEMORANDUM OPINION

  GRANTING DEFENDANT’S MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR SUMMARY
         JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

                                      I. INTRODUCTION

       Plaintiff, the American Postal Workers Union, AFL-CIO (“APWU” or “Union”), brought

this action against Defendant, the United States Postal Service (“Postal Service”), ostensibly

seeking enforcement of a global settlement agreement that resolved a national level grievance

filed under the parties’ collective bargaining agreement. The Postal Service has moved to

dismiss the action under Rule 12(b)(6), or in the alternative for summary judgment under Rule

56, on the basis that the APWU’s lawsuit is not ripe for judicial enforcement because a dispute

exists regarding how, if at all, the global settlement was intended to remedy a discrete set of past

grievances, and that dispute first must be resolved through the grievance-arbitration process set

forth in the collective bargaining agreement. The APWU has filed a cross-motion for summary

judgment in which it argues that no dispute exists about the interpretation and application of the

global settlement, and as such, further arbitration is not required before the Court can issue an

enforcement order. Upon consideration of the parties’ motions, the memoranda in support
thereof and opposition thereto, and the evidentiary record submitted by both parties to

supplement their filings, the Court will grant the Postal Service’s motion for summary judgment

and deny the APWU’s cross-motion for summary judgment.


                                II. FACTUAL BACKGROUND

       The APWU is an unincorporated labor organization recognized by the Postal Service as

the exclusive bargaining representative for postal employees in several categories, including the

clerk, maintenance, and motor vehicle crafts. See Compl., ECF No. 1, at ¶ 3; McKinnon Decl.,

ECF No. 12-4, at ¶ 2. The Postal Service and the APWU are parties to a collective bargaining

agreement, called the “2010 National Agreement,” that sets forth the terms and conditions of

employment for employees in the bargaining units represented by the APWU, as well as

restrictions on the extent to which non-bargaining unit postal employees may perform designated

bargaining unit work. See Compl., ECF No. 1, at ¶ 5.

       In particular, Article 1.6.B of the 2010 National Agreement states that “[i]n offices with

less than 100 bargaining unit employees, supervisors are prohibited from performing bargaining

unit work except as enumerated in Section 6.A.1 through 5 above or when the duties are included

in the supervisor’s position description.” Id. ¶ 6; see also Arbitration Award, ECF No. 8-4,

Reimer Decl., Ex. 2 at 3. A largely unchanged version of Article 6.1.B has been included in

previous collective bargaining agreements between the parties, and the APWU and the Postal

Service have gotten into numerous disputes and grievances over the years about the

interpretation and application of this provision. See Compl., ECF No. 1, at ¶¶ 7-8.

       Disputes about Article 6.1.B and other provisions in the 2010 National Agreement are

addressed through the procedure set out in Article 15 of the collective bargaining agreement,

which provides for a multi-step grievance process that culminates in arbitration either at the


                                                 2
national, regional, or district level depending on the nature of the underlying disagreement. See

generally 2010 National Agreement, ECF No. 8-3, Reimer Decl., Ex. 1. Arbitration at the

national level occurs for “cases involving interpretive issues under [the 2010 National]

Agreement or supplements thereto of general application.” Id. at 32-33 (Art. 15.5.D.1). In

contrast, district or regional level arbitration generally concerns disputes about the application of

the 2010 National Agreement to particular facts in a specific location. See id. at 28-30 (Art.

15.5.B). Article 15 also includes a mechanism for staying district and regional arbitration when

either party gives notice that a new national level dispute involves an interpretive issue under the

2010 National Agreement or one of its supplements. See id. at 29-30 (Art. 15.5.B.5). Finally,

Article 15 provides “that in the event of a dispute between the Union and the Employer as to the

interpretation of this Agreement, such dispute may be initiated at Step 4 level by either party.”

Id. at 25 (Art. 15.4.D).

       The last national level dispute about Article 1.6.B prior to the 2010 National Agreement

was Case Q06-4Q-C 10005587. See Compl., ECF No. 1, at ¶ 9. This dispute involved the Postal

Service assigning bargaining unit work to supervisors or postmasters, rather than to bargaining

unit employees. See id. Pursuant to Article 15, the APWU and the Postal Service adjudicated

the dispute through Arbitrator Shyam Das, see id., and numerous other grievances and disputes

between the parties relating to the same or similar issues were stayed pending resolution of the

national dispute, see id. ¶ 10. In November 2010, Arbitrator Das issued an arbitration award in

Case Q06-4Q-C 10005587 recognizing the APWU’s claim that there was a cognizable dispute

under the 2010 National Agreement and remanding the dispute to the parties for further

discussion in accordance with Article 15’s grievance-arbitration process. See id. ¶ 11.




                                                  3
       In March 2011, the APWU and the Postal Service agreed to settle the national dispute

through the Case Q06-4Q-C 10005587 Global Settlement (“Global Settlement”). See id. ¶¶ 12-

13; see also Global Settlement, ECF No. 8-3, Reimer Decl., Ex. 1 at 34-35. The Global

Settlement, which became effective on May 23, 2011, established specific limits on the total

number of hours of bargaining unit work a postmaster or supervisor can perform per week at

different levels of post offices with less than one hundred bargaining unit employees. See

Compl., ECF No. 1, at ¶ 16; see also Global Settlement, ECF No. 8-3, Reimer Decl., Ex. 1 at 34-

35. Several disputes, however, have arisen regarding the interpretation of provisions in the

Global Settlement.

       Of particular relevance here, one dispute involved the interpretation and application of a

clause in the Global Settlement which states that “[a]ll time the supervisor or Postmaster spends

staffing the window during the day will be counted towards the permissible bargaining unit work

limits.” Global Settlement, ECF No. 8-3, Reimer Decl., Ex. 1 at 35. In an arbitration award

dated March 2013, Arbitrator Das took the APWU’s position in the dispute by finding that this

provision applied to all time in which, in the absence of the clerk, the window was open and not

just the time in which a postmaster or supervisor actually assisted customers at the window. See

Arbitration Award, ECF No. 8-4, Reimer Decl., Ex. 2 at 31-32; see also Compl., ECF No. 1, at ¶

26. In that same award, Arbitrator Das directed the parties to work on resolving “[i]ssues

relating to remedy,” and he retained “jurisdiction to decide any remedial issues that the parties

are unable to resolve.” Arbitration Award, ECF No. 8-4, Reimer Decl., Ex. 2 at 32.

       Following the March 2013 arbitration award, the parties were unable to agree on the

appropriate remedy, if any, for the grievances and disputes that predated the award. The




                                                 4
disagreement centered on the parties’ differing interpretations of the first paragraph in the Global

Settlement, which states:

       The parties agree that grievance Q06-4Q-C 10005587 will be resolved effective
       with the signing of this settlement. The parties further understand that any cases
       held in abeyance pending the outcome of this case will be affected by this
       settlement. Those cases will be returned to the level they were held for further
       processing.

Global Settlement, ECF No. 8-3, Reimer Decl., Ex. 1 at 34. Specifically, the parties disagreed

about how, if at all, the terms and conditions of the Global Settlement applied to disputes during

two timeframes: conduct during the years preceding the effective date of the Global Settlement

(i.e., the period before May 23, 2011); and conduct during the interim period between the Global

Settlement and the March 2013 arbitration award (i.e., the period between May 23, 2011, and

March 29, 2013). The term “cases held in abeyance” in the Global Settlement refers to those

grievances in the first category — that is, conduct that predated the Global Settlement. See

Postal Service Resp. Brief, ECF No. 8-8, Reimer Decl., Ex. 6 at 7-8.

       On August 16, 2013, in response to the APWU’s remedy briefing, the Postal Service

requested additional arbitration hearing days to develop the record about the proper remedy for

the pre-Global Settlement cases held in abeyance. See id. at 6-7. The parties, however, were

unable to identify a mutually convenient date within the 2013 calendar year for holding these

hearing days. See generally Various Emails between Reimer and Holmes, ECF No. 8-10,

Reimer Decl., Ex. 8. On September 12, 2013, the Postal Service’s counsel emailed the APWU’s

counsel to clarify that he sought additional hearing days regarding only the question of the

appropriate remedy for conduct preceding the Global Settlement, whereas the question about the

proper remedy for conduct during the interim period — that is, the conduct between the Global

Settlement and the March 2013 arbitration award — could be decided on the existing briefs and

arbitration record. Id. at 3-4. The APWU responded by proposing to “separate out and remove”


                                                 5
the pre-Global Settlement conduct remedy question, thus giving to the arbitrator only the

question of the proper remedy for the interim conduct. See id. The next day, the Postal Service

followed up to clarify that the APWU was recommending to bifurcate the issues by having the

arbitrator decide the interim period remedy question based on the briefs and leaving the pre-

Global Settlement conduct remedy question for “another day.” Id. at 1. The APWU replied,

“Yes, I think that’s right.” Id.

       In an email on September 25, 2013, the APWU conveyed this understanding to Arbitrator

Das, explaining that the parties agreed for him to decide only the interim conduct remedy

question at this time. See Email from Holmes to Das, ECF No. 8-11, Reimer Decl., Ex. 9. In

accordance with the APWU’s directive, the arbitrator issued a supplemental remedy award in

October 2013 granting the Union’s desired remedy for the interim conduct; specifically, the

arbitrator’s award provided for, among other things, back pay to the bargaining unit employees

who would have been assigned work had it not been performed by a postmaster or supervisor.

See Suppl. Remedy Award, ECF No. 8-12, Reimer Decl., Ex. 10 at 6, 11. As the parties had

agreed, the supplemental award did not address the remedy for the pre-Global Settlement cases

held in abeyance. See Compl., ECF No. 1, at ¶ 31. To date, no arbitration or additional hearing

days have occurred regarding the remedy for pre-Global Settlement conduct. See Reimer Decl.,

ECF No. 8-2, at ¶ 18; McKinnon Decl., ECF No. 12-4, at ¶ 13.

       On October 29, 2013, the APWU filed the instant lawsuit asking the Court to issue a

judgment ordering the Postal Service to apply the Global Settlement’s work hour limitations and

other terms to those grievances and disputes dealing with conduct prior to the settlement that

were held in abeyance. See Compl., ECF No. 1, at 7 (“Wherefore” Paragraph). In accordance

with that request, the APWU also asks that the Court award damages, including restitution and




                                                6
back pay, to the affected bargaining unit employees in the cases held in abeyance, just as the

arbitrator ordered for the interim conduct remedy. See id.

       Now before the Court are the Postal Service’s motion to dismiss under Rule 12(b)(6), or

in the alternative for summary judgment under Rule 56, and the APWU’s cross-motion for

summary judgment. Through its motion, the Postal Service disagrees with the APWU’s

characterization that it merely seeks to enforce the Global Settlement. Instead, the Postal Service

argues that the Union is attempting to avoid the collectively bargained-for grievance-arbitration

process by having the Court, rather than an arbitrator, resolve the dispute about how, if at all, the

Global Settlement was intended to apply to the cases held in abeyance. See Def.’s Mem. Supp.

Mot. Dismiss, ECF No. 8, at 10.

       The Postal Service further argues that the APWU has two options for resolving this

dispute, neither of which involves a lawsuit in federal court: it can arbitrate the dispute, or it can

choose not to arbitrate and waive the issue. See id. Either way, the Postal Service contends,

until the interpretive dispute is resolved, this Court lacks jurisdiction to entertain the Union’s

lawsuit seeking enforcement of the Global Settlement. The APWU, on the other hand, argues

that no dispute exists between the parties regarding interpretation of the Global Settlement, and

as such, the Court should enter judgment in its favor because further arbitration is not required.

See Pl.’s Mem. Supp. Mot. Sum. J., ECF No. 12, at 1-2. The Court addresses the parties’

arguments below.


                                    III. LEGAL STANDARD

       Courts have treated a motion premised on the plaintiff’s failure to exhaust a collectively

bargained-for grievance-arbitration process as a motion to dismiss for failure to state a claim




                                                   7
under Rule 12(b)(6) or for summary judgment under Rule 56. 1 See, e.g., Noble v. U.S. Postal

Serv., 537 F. Supp. 2d 210, 218-19 (D.D.C. 2008) (granting summary judgment and holding that

the court lacks jurisdiction to hear the claim when plaintiff did not exhaust the grievance-

arbitration procedures in the collective bargaining agreement); Nat’l Postal Prof’l Nurses v. U.S.

Postal Serv., 461 F. Supp. 2d 24, 31 (D.D.C. 2006) (granting Rule 12(b)(6) motion when it was

“undisputed that plaintiffs have not exhausted” the grievance-arbitration procedures in the

collective bargaining agreement).

       In deciding whether to dismiss a complaint for failure to state a claim under Rule

12(b)(6), a court “must treat the complaint’s factual allegations — including mixed questions of

law and fact — as true and draw all reasonable inferences therefrom in the plaintiff’s favor.”

Epps v. U.S. Capitol Police Bd., 719 F. Supp. 2d 7, 13 (D.D.C. 2010) (citing Holy Land Found.

for Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir. 2003)). A court deciding a Rule

12(b)(6) motion generally does not consider matters beyond the pleadings. See Ward v. D.C.

Dep’t of Youth Rehab. Servs., 768 F. Supp. 2d 117, 119-20 (D.D.C. 2011). This means that a

court may consider “the facts alleged in the complaint, documents attached as exhibits or

incorporated by reference in the complaint, or documents upon which the plaintiff’s complaint


       1
                 The Postal Service also suggests that its motion can be treated as a Rule 12(b)(1)
motion to dismiss. Although there is some support for such an approach, see, e.g., Am. Postal
Workers’ Union, AFL-CIO v. U.S. Postal Serv., 646 F. Supp. 2d 1, 2 (D.D.C. 2009), the Court
finds that treating the motion as one under Rule 12(b)(6) and Rule 56 is more consistent with
prior case law under the Postal Reorganization Act and other collective bargaining agreement
actions, including claims under Section 301 of the Labor-Management Relations Act (“LMRA”),
which provides guidance for Postal Reorganization Act cases, see id. at 3 n.2. See, e.g.,
Kaufman v. Pac. Mar. Ass’n, No. C-12-5051, 2013 WL 1560300, at *2 (N.D. Cal. Apr. 12, 2013)
(dismissing LMRA Section 301 claim under Rule 12(b)(6) when plaintiff failed to exhaust
remedies in collective bargaining agreement); Carson v. Sim, 778 F. Supp. 2d 85, 94 (D.D.C.
2011) (same); Bush v. Clark Const. & Concrete Corp., 267 F. Supp. 2d 43, 47 (D.D.C. 2003)
(same); Freeman v. Duke Power Co., No. 1:00CV00665, 2003 WL 21981291, at *6 (M.D.N.C.
Aug. 15, 2003) (same).


                                                 8
necessarily relies even if the document is produced not by the plaintiff in the complaint but by

the defendant in a motion to dismiss[.]” Id. at 119 (internal citations and quotation marks

omitted).

       If, however, a court considers documents outside this narrow orbit, it must convert the

motion from one under Rule 12(b)(6) to one for summary judgment under Rule 56. See Fed. R.

Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated as one for summary

judgment under Rule 56.”). Here, both parties have submitted evidence other than that

specifically referenced in or relied on by the complaint, and the Court’s consideration of these

materials implicates the rule requiring conversion into a summary judgment motion. Indeed, the

APWU cross-moves exclusively for summary judgment based on the evidentiary record

provided by both parties.

       Summary judgment is appropriate “if the movant shows that there is no genuine dispute

as to any material fact and [thus] the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); accord. Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). “A fact is material

if it ‘might affect the outcome of the suit under the governing law,’ and a dispute about a

material fact is genuine ‘if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party.’” Steele v. Schafer, 535 F.3d 689, 692 (D.C. Cir. 2008) (quoting Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When Rule 56 is invoked, the moving party

has the initial burden of demonstrating the absence of a genuine dispute as to any material fact.

See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When the moving party does not bear

the burden of persuasion at trial, its burden “may be discharged by ‘showing’ — that is, pointing




                                                  9
out to the district court — that there is an absence of evidence to support the nonmoving party’s

case.” Id. at 325.

        Once the moving party has met its burden, to defeat the motion the nonmoving party

must designate “specific facts showing that there is a genuine issue for trial.” Id. at 324 (citation

omitted). Although the Court must view this evidence in the light most favorable to the

nonmoving party and draw all reasonable inferences in that party’s favor, see Grosdidier v.

Broad. Bd. of Governors, Chairman, 709 F.3d 19, 23-24 (D.C. Cir. 2013), the nonmoving party

must show more than “[t]he mere existence of a scintilla of evidence in support of” his position

— “there must be evidence on which the jury could reasonably find for [the nonmoving party].”

Anderson, 477 U.S. at 252. Moreover, the nonmoving party “may not rest upon mere allegation

or denials of his pleading but must present affirmative evidence showing a genuine issue for

trial.” Laningham v. U.S. Navy, 813 F.2d 1236, 1241 (D.C. Cir. 1987) (internal citation and

quotation marks omitted).

        When both parties file cross-motions for summary judgment, “each must carry its own

burden under the applicable legal standard.” Ehrman v. United States, 429 F. Supp. 2d 61, 67

(D.D.C. 2006); Nuzzo v. FBI, No. 95-CV-1708, 1996 WL 741587, at *1 (D.D.C. Oct. 8, 1996)

(“When both parties in a cause of action move for summary judgment, each party must carry its

own burden.”). Finally, the Court notes that “[c]redibility determinations, the weighing of the

evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of

a judge at summary judgment.” Barnett v. PA Consulting Grp., Inc., 715 F.3d 354, 358 (D.C.

Cir. 2013) (citation omitted). Indeed, a court’s role in deciding a summary judgment motion is

not to “determine the truth of the matter, but instead [to] decide only whether there is a genuine

issue for trial.” Id. (citation omitted).




                                                 10
                                         IV. ANALYSIS

       Title 39 U.S.C. § 1208(b) of the Postal Reorganization Act grants federal courts

jurisdiction to entertain lawsuits for alleged violations of contracts between the Postal Service

and a union representing postal workers. To maintain a suit under that provision, however, a

union first must exhaust the remedies provided for through the collective bargaining agreement.

See United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 36-37 (1987); Am. Postal

Workers’ Union, AFL-CIO v. U.S. Postal Serv., 646 F. Supp. 2d 1, 3-4 (D.D.C. 2009); Nat’l

Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 31 (D.D.C. 2006); Sullivan v.

Potter, No. CIV.A. 05-00818, 2006 WL 785289, at *3-4 (D.D.C. Mar. 28, 2006). As such,

failure to exhaust the collectively bargained-for grievance-arbitration process requires dismissal

of a plaintiff’s claim. See Am. Postal Workers’ Union, 646 F. Supp. 2d at 4 (granting motion to

dismiss because the “APWU has not exhausted the arbitration procedure at this time”); Sullivan,

2006 WL 785289, at *3 (D.D.C. Mar. 28, 2006) (“Before instituting a suit under … Section

1208(b) of the Postal Reorganization Act, a plaintiff is required to exhaust any grievance

procedure provided for in the pertinent collective bargaining agreement.” (citations omitted));

Am. Postal Workers Union, AFL-CIO v. U.S. Postal Serv., 827 F. Supp. 836, 838-39 (D.D.C.

1993) (holding that the court lacks jurisdiction when the APWU failed to exhaust grievance and

arbitration remedies before filing its lawsuit); see also Sanders v. Wash. Metro. Area Transit

Auth., 819 F.2d 1151, 1158 (D.C. Cir. 1987) (“[E]mployees who failed to exhaust the grievance

and arbitration proceedings, available to them, may not seek redress in court on claims that could

and should have been grieved.”).

       Here, the APWU ostensibly asks this Court to enforce a provision in the Global

Settlement by applying the terms of the agreement to a specific set of grievances and disputes




                                                 11
that were held in abeyance while the settlement was being negotiated. In support of its position,

the APWU argues that no genuine dispute of material fact exists between itself and the Postal

Service regarding how to remedy the pre-Global Settlement cases, and further arbitration

therefore is not required. The Court disagrees.

       In effect, the APWU asks the Court to hold that the Global Settlement applies to the cases

held in abeyance in the same way that Arbitrator Das, in his March 2013 award, interpreted the

settlement as applying to the interim conduct cases. But before the Court could enforce the

Global Settlement to those disputes and grievances held in abeyance, it first would have to

determine how the settlement was intended to remedy that unique set of conduct, 2 which

involves choosing between the conflicting interpretations that the Union and the Postal Service

support. It is well established that disputes about interpreting a collectively bargained-for

settlement agreement require exhaustion through the grievance-arbitration process before a

federal court may act. Because the evidence conclusively shows that a dispute exists and that the

APWU has failed to exhaust the process set forth in Article 15 of the 2010 National Agreement,

the Court must grant the Postal Service’s motion for summary judgment.

                                   A. Arbitrability And Waiver

       The APWU puts forth an overlapping argument that includes questions of whether the

arbitrator is authorized to review the issue at hand under the collective bargaining agreement

and, if so, whether the Postal Service has waived its right to arbitrate the issue. The Postal

Service responds that not only did it never remove this issue from arbitration, but the parties


       2
               The APWU does not argue that no dispute exists because the interim and pre-
Global Settlement conduct must be remedied in the same manner under the clear terms of the
settlement agreement. Thus, logic immediately suggests that if the interim conduct remedy
question required arbitration to resolve a dispute, arbitration also is required for settling a dispute
about the appropriate remedy for pre-Global Settlement conduct.


                                                  12
already agreed that the question was appropriate for arbitration before deciding to delay a

decision until additional hearing days could be scheduled. See Def.’s Opp’n Pl.’s Mot. Summ.

J., ECF No. 15, at 3-4, 9. For the reasons discussed below, the Court agrees with the Postal

Service that if a dispute exists, it is arbitrable and was not waived.

                      1. The Grievance-Arbitration Process Under Article 15

       The Postal Service argues that disputes between itself and the Union concerning the

interpretation of a provision in the Global Settlement — including how the settlement applies to

the cases held in abeyance — are subject to the grievance-arbitration process outlined in Article

15 of the 2010 National Agreement. See Def.’s Mem. Supp. Mot. Dismiss, ECF No. 8, at 23.

“The law compels a party to submit [its] grievance to arbitration only if [it] has contracted to do

so.” Gateway Coal Co. v. United Mine Workers of Am., 414 U.S. 368, 374 (1974); see also

Abrams v. Comm’ns Workers of Am., 59 F.3d 1373, 1382 (D.C. Cir. 1995); Hammontree v.

NLRB, 925 F.2d 1486, 1517 (D.C. Cir. 1991); Chicago Area Vending Emp’rs Ass’n v. Local

Union No. 761, 564 F. Supp. 1186, 1193 (N.D. Ill. 1983) (“An arbitration clause in a collective

bargaining agreement does not necessarily mean that every dispute under the contract must be

arbitrated. The disputed issue must be contemplated by the arbitration clause and not excluded

thereunder.”). Thus, “whether or not [a party is] bound to arbitrate … is a matter to be

determined by the Court on the basis of the contract entered into by the parties.” Atkinson v.

Sinclair Ref. Co., 370 U.S. 238, 241 (1974).

       When making this determination, the Court must bear in mind that “the Supreme Court

has consistently instructed that there is a strong presumption in favor of arbitration in labor

disputes.” United Parcel Serv., Inc. v. Int’l Bhd. of Teamsters, AFL-CIO, 859 F. Supp. 590, 594

(D.D.C. 1994) (citations omitted). Thus, “‘[i]n the absence of any express provision excluding a




                                                  13
particular grievance from arbitration … only the most forceful evidence of a purpose to exclude

the claim from arbitration can prevail.’” AT&T Techs., Inc. v. Comm’ns Workers of Am., 475

U.S. 643, 654 (1986) (quoting United Steelworkers of Am. v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 584-85 (1960) (alteration in original)).

       Article 15 of the 2010 National Agreement defines a grievance as “a dispute, difference,

disagreement or complaint between the parties related to wages, hours, and conditions of

employment,” including, but not limited to, “the complaint of an employee or of the Union

which involves the interpretation, application of, or compliance with the provisions of this

Agreement.” 2010 National Agreement, ECF No. 8-3, Reimer Decl., Ex. 1 at 14 (Art. 15.1).

The dispute resolution process calls for a multi-step grievance procedure culminating in

arbitration for national level disputes, such as Case Q06-4Q-C 10005587. See id. at 14-21 (Art.

15.1-2). Article 15 further provides “that in the event of a dispute between the Union and the

Employer as to the interpretation of this Agreement, such dispute may be initiated at Step 4 level

by either party,” and, if the parties are unable to reach an agreement within a specified period of

time, the Union has thirty days to appeal the dispute to arbitration. Id. at 25 (Art.15.4.D).

       The parties agree that the Global Settlement was included within the 2010 National

Agreement, and the APWU makes no argument that the Article 15 grievance-arbitration process

does not apply to a dispute about interpreting or applying the Global Settlement. See Compl.,

ECF No. 1, at ¶¶ 12-13; Global Settlement, ECF No. 8-3, Reimer Decl., Ex. 1 at 34-35; Suppl.

Remedy Award, ECF No. 8-12, Reimer Decl., Ex. 10 at 4. Indeed, the APWU already agreed to

arbitrate the nearly identical question of how the Global Settlement applies to conduct between

the effective date of the settlement and the March 2013 arbitration award. The Union provides




                                                 14
no explanation for why that dispute required arbitration but the similar question about the proper

remedy for pre-Global Settlement conduct does not.

       The APWU, moreover, acknowledges that following the March 2013 arbitration award,

the Postal Service submitted a question to the arbitrator regarding the correct remedy for the

cases held in abeyance. See Pl.’s Resp. Def.’s State. Facts, ECF No. 12, at ¶ 15. In fact, in the

Union’s remedy brief, it specifically asked the arbitrator to resolve the dispute about the cases

held in abeyance pursuant to Article 15:

       The Postal Service is now claiming that the parties’ agreement that those cases
       would be “affected by” the Global Settlement and “returned to the level they were
       held for further proceeding” means that the cases would be returned to the field to
       be closed without adjudication or remedy of any sort…. [T]he APWU submits
       this brief for the limited purpose of responding to a new issue it could not foresee,
       but also to ask the Arbitrator to address the Postal Service’s new argument in
       his remedy award in accordance with Article 15 of the National Agreement.

APWU Remedy Reply Brief, ECF No. 8-7, Reimer Decl., Ex. 5 at 2-3 (emphasis added).

Although the Union attempts to distance itself from this position through its summary judgment

briefing, see Pl.’s Mem. Supp. Mot. Sum. J., ECF No. 12, at 15, the operative question is not

whether the APWU now is willing to arbitrate the issue. Rather, all that matters is whether a

dispute would fall within the scope of the grievance-arbitration process that the parties agreed to

through collective bargaining, which it clearly would. As such, the Union cannot bring a claim

in federal court to sidestep that process if the Court finds that a dispute regarding interpretation

of the Global Settlement exists. See Am. Postal Workers’ Union, AFL-CIO v. U.S. Postal Serv.,

646 F. Supp. 2d 1, 4 (D.D.C. 2009) (granting the Postal Service’s motion to dismiss when,

before bringing suit in this Court, the APWU failed to obtain an arbitration award regarding a

remedy issue through Article 15’s grievance-arbitration process); see also United Paperworkers

Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 37 (1987) (“The courts have jurisdiction to

enforce collective-bargaining contracts; but where the contract provides grievance and arbitration


                                                 15
procedures, those procedures must first be exhausted and courts must order resort to the private

settlement mechanisms without dealing with the merits of the dispute.”); United Mine Workers of

Am., Dist. No. 5 v. Consolidation Coal Co., 666 F.2d 806, 811 (3d Cir. 1981) (“Federal courts

are bound to exercise the utmost restraint to avoid intruding on the bargained-for method of

dispute resolution…. If the court has any doubt, the parties should be returned to their grievance

procedure[.]” (citations omitted)).

        2. The Arbitrator Retained Jurisdiction Over Global Settlement Remedy Disputes

       The Court finds that a dispute about how to interpret the Global Settlement is arbitrable

for a second reason. Following consummation of the Global Settlement, an issue quickly arose

regarding the interpretation of a provision in the agreement which states that “[a]ll time the

supervisor or Postmaster spends staffing the window during the day will be counted towards the

permissible bargaining unit work limits.” Global Settlement, ECF No. 8-3, Reimer Decl., Ex. 1

at 35. In an arbitration award dated March 2013, Arbitrator Das took the APWU’s position in

the dispute by finding that this provision applied to all time in which, in the absence of the clerk,

the window was open and not just the time in which a postmaster or supervisor actually assisted

customers at the window. See Arbitration Award, ECF No. 8-4, Reimer Decl., Ex. 2 at 31-32;

see also Compl., ECF No. 1, at ¶ 26.

       In that same arbitration award, Arbitrator Das directed the parties to continue working on

“[i]ssues relating to remedy,” and he specifically retained “jurisdiction to decide any remedial

issues that the parties are unable to resolve.” Arbitration Award, ECF No. 8-4, Reimer Decl.,

Ex. 2 at 32. Thus, the parties do not dispute that the arbitrator possessed jurisdiction to hear the

initial remedy dispute about the Global Settlement, and he explicitly acknowledged that he

retained jurisdiction to arbitrate future remedy questions of a comparable nature, which clearly




                                                 16
would include a similar dispute about whether the Global Settlement provides a remedy to the

cases held in abeyance.

                    3. Agreement Not To Arbitrate, Or Waiver Of Arbitration

       In its summary judgment briefing, the APWU argues that “[t]he record shows that the

parties expressly agreed not to have Arbitrator Das address the settlement of the long-pending

grievances and advised him of the limits of his authority and jurisdiction.” Pl.’s Mem. Supp.

Mot. Sum. J., ECF No. 12, at 14. The APWU’s claim, however, belies the undisputed facts in

the record. Indeed, the Union cites no facts to support its contention, and a lawyer’s argument,

of course, does not substitute for admissible evidence in support of or in defense against a

summary judgment motion. See Tom Sawyer Prods., Inc. v. Progressive Partners Achieving

Solutions, Inc., 550 F. Supp. 2d 23, 29 (D.D.C. 2008); Davis v. Dist.of Columbia, No. CIV 05-

2176, 2006 WL 3917779, at *5 (D.D.C. Sept. 28, 2006).

       It is true, as the APWU suggests, that the question before Arbitrator Das was confined to

determining the proper remedy for the interim conduct between the Global Settlement and the

March 2013 arbitration award. See Pl.’s Mem. Supp. Mot. Sum. J., ECF No. 12, at 14; see

generally Suppl. Remedy Award, ECF No. 8-12, Reimer Decl., Ex. 10. But that was not because

the Postal Service somehow waived or rejected arbitration regarding the pre-Global Settlement

disputes held in abeyance. Rather, it was because the parties, at the APWU’s recommendation,

explicitly agreed to delay the pre-Global Settlement remedy question until they could schedule

additional hearing days, while, at the same time, they also agreed to send to arbitration the

interim conduct remedy question because that issue could be decided on the existing briefs and

record. The uncontroverted evidence provided by the Postal Service in support of its motion

makes this reality clear.




                                                17
       On August 16, 2013, in response to the APWU’s remedy reply brief, the Postal Service

requested additional hearing days to develop the record about the proper remedy for the cases

held in abeyance. See Postal Service Resp. Brief, ECF No. 8-8, Reimer Decl., Ex. 6 at 6-7. On

September 11, 2013, the APWU emailed the arbitrator regarding the Postal Service’s request,

writing that “[a]lthough the APWU believes another day of hearing is unnecessary for a number

of reasons, action within this part of the case appears to be necessary to the Postal Service fully

implementing your award and the Global Settlement MOU.” Email from Holmes to Das, ECF

No. 8-9, Reimer Decl., Ex. 7. The APWU then explained that it “will agree to a hearing on the

evidence the Postal Service wishes to present per its reply brief and any response thereto by the

APWU.” Id. After the APWU wrote this email, the parties were unable to identify a mutually

convenient date for a hearing before Arbitrator Das, 3 so they decided to bifurcate the issues for

arbitration between those that required further hearing days (i.e., the remedy for the pre-Global

Settlement conduct) and those that did not (i.e., the remedy for the interim conduct). See

generally Various Emails between Reimer and Holmes, ECF No. 8-10, Reimer Decl., Ex. 8.

        Specifically, in an email on September 12, 2013, the Postal Service’s counsel informed

the APWU’s counsel that he sought additional evidence regarding only the question of the

appropriate remedy for conduct preceding the Global Settlement. See id. at 3. The APWU

responded by proposing to “separate out and remove” the pre-Global Settlement issue, thus

leaving for arbitration only the interim conduct remedy question. See id. The next day, the


       3
                 The APWU also points out that the Postal Service attempted to schedule an
arbitration hearing before Arbitrator Stephen Goldberg, who was not involved with the Global
Settlement, rather than Arbitrator Das. See Pl.’s Mem. Supp. Mot. Sum. J., ECF No. 12, at 10-
11. Although it is not clear to the Court why this distinction matters anyway, the APWU’s
argument is misleading because it omits the follow-up email from the Postal Service clarifying
that the arbitrator should be Das, not Goldberg. See Email from Penn to McKinnon, ECF No.
15-3, Penn Decl., Ex. 1 at 3.


                                                 18
Postal Service followed up to clarify that the APWU’s proposal was to have the arbitrator decide

the interim period remedy question based on the briefs and leave the pre-Global Settlement

period issue for “another day.” Id. at 1. The APWU replied, “Yes, I think that’s right.” Id. A

few days later, the APWU conveyed this plan to Arbitrator Das. See Email from Holmes to Das,

ECF No. 8-11, Reimer Decl., Ex. 9. Consistent with the APWU’s proposal, the arbitrator issued

a supplemental remedy award in October 2013 granting the Union’s requested remedy with

respect to the time period between the Global Settlement and the March 2013 award. See Suppl.

Remedy Award, ECF No. 8-12, Reimer Decl., Ex. 10 at 6, 11.

        The undisputed facts therefore demonstrate that the Postal Service never agreed to

“waive” or “exclude from arbitration” the question of how the Global Settlement applies to the

cases held in abeyance. Particularly given the high burden required for establishing intent to

remove an issue from arbitration, the APWU’s argument that the Postal Service “expressly

agreed not to have Arbitrator Das address the settlement of the long-pending grievances” simply

is wrong. See Moses H. Cone Mem’l Hosp. v. Mercury Constr., 460 U.S. 1, 24-25 (1983) (“[A]s

a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved

in favor of arbitration, whether the problem at hand is the construction of the contract language

itself or an allegation of waiver, delay, or a like defense to arbitrability.”); United States Steel

Workers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 584-85 (1960) (“In the absence

of any express provision excluding a particular grievance from arbitration, we think only the

most forceful evidence of a purpose to exclude the claim from arbitration can prevail.”). It

clearly was in the minds of both parties to delay the question for another day, and as such, the

Union’s argument that arbitration is not required fails.




                                                  19
     B. A Dispute Exists Regarding The Remedy For Pre-Global Settlement Conduct

       Having concluded that a dispute about how the Global Settlement applies to conduct

preceding the agreement is arbitrable under Article 15, the Court next must determine whether

such a dispute actually exists. If no dispute exists, the APWU may be correct that the Court

should enforce the Global Settlement. But if there is a dispute, the Court cannot enforce the

settlement until arbitration is exhausted and the dispute is resolved. This is because to be

enforceable by a court, “a settlement agreement, like an arbitration award, must not only be final

and [b]inding by the terms of the collective bargaining agreement, but it must also be sufficiently

specific as to be capable of implementation.” United Mine Workers of Am., Dist. No. 2 v. Barnes

& Tucker Co., 561 F.2d 1093, 1097 (3d Cir. 1977) (citation omitted). As a result, “[c]ourts will

not enforce a settlement agreement that is vague, ambiguous, incomplete, or unclear in its

meaning and effect.” Id. (citations omitted).

       Rather than seek enforcement of an unclear provision in a collectively bargained-for

settlement agreement, “[t]he clarification of uncertainties … is a task to be first performed

according to the parties’ chosen machinery for dispute resolution.” Id.; see also Hanford Atomic

Metal Trades Council v. General Elect. Co., 353 F.2d 302, 307-08 (9th Cir. 1966) (explaining

that interpretation of an unclear labor agreement is not the function of a district court). Thus,

because the Court must “know exactly what it is being asked to enforce,” it cannot enforce a

settlement agreement under 39 U.S.C. § 1208 until a dispute is resolved fully through the

grievance-arbitration process. See, e.g., Roman v. U.S. Postal Serv., 821 F.2d 382, 386-89 (7th

Cir. 1987) (explaining that exhaustion of contractual remedies is a prerequisite for a claim under

39 U.S.C. § 1208); Nat’l Postal Prof’l Nurses v. U.S. Postal Serv., 461 F. Supp. 2d 24, 31

(D.D.C. 2006) (“To bring suit under [39 U.S.C. § 1208] plaintiffs would first have to have




                                                 20
exhausted the provisions of their collective bargaining agreement.”); Sullivan v. Potter, No.

CIV.A. 05-00818, 2006 WL 785289, at *3 (D.D.C. Mar. 28, 2006) (“Until the arbitration is final

and the procedures set forth in the collective bargaining agreement are completed, this claim is

premature and must be dismissed for failure to exhaust administrative remedies.”).

       The APWU argues that no dispute exists based on a statement made by a Postal Service

representative under oath during arbitration about how to measure the hour limitations

established in the Global Settlement, which eventually was resolved in the March 2013

arbitration award. Mike Mlakar, the Manager of Field Labor Relations for the Postal Service,

was asked whether the Postal Service was “supposed to use this global settlement retroactively to

go back and settle those grievances” held in abeyance. See June 27, 2012, Arbitration Tr., ECF

No. 12-3, Ex. 2 at 29. Mr. Mlakar replied to this question,

       Yeah. Essentially if a postmaster had been — let’s just say had been doing five
       hours more than that, then five hours would have been the appropriate remedy in
       that case. Likewise, if the postmaster had been doing five hours less than that,
       then our expectation would be that the union would withdraw that because they
       were applying the settlement.

Id. at 29-30. The APWU asserts that this testimony conclusively establishes that the Postal

Service interprets the Global Settlement as applying retroactively to all conduct, which would

appear to mirror the Union’s interpretation.

       The Postal Service, however, took a different position in its remedy briefing to Arbitrator

Das following the March 2013 arbitration award. Initially, the APWU had argued through its

briefing that “the rule established in and by the Global Settlement is unrebutted in fact and leads

to only one reasonable interpretation — the Postal Service is obligated to apply the Global

Settlement substantively, as affirmed and clarified by the Arbitrator’s Merits Award, to all

pending grievances held in abeyance behind Case No. Q06-4Q-C 10005587.” APWU Remedy

Reply Brief, ECF No. 8-7, Reimer Decl., Ex. 5 at 10. Writing in response, the Postal Service


                                                21
explained that “[o]nce the parties exchanged remedy briefs, it became clear that the parties have

a fundamental disagreement over the effect of the Global Settlement on the cases held in

abeyance.” Postal Service Resp. Brief, ECF No. 8-8, Reimer Decl., Ex. 6 at 7-8. This is because

the Postal Service took the position that “cases pending Q06-4Q-C 10005587 were resolved by

the terms of the Global Settlement and therefore not eligible for any additional remedy.” Id. at 6;

see also Postal Service Post-Award Brief, ECF No. 8-6, Reimer Decl., Ex. 4 at 9-10 (arguing that

the Global Settlement does not apply as a remedy for conduct in the years preceding the

agreement).

       As an initial matter, the APWU provides no reason for why Mr. Mlakar’s statement

should be taken as the Postal Service’s authoritative interpretation rather than its position in the

remedy briefs, which were prepared later in time. If the Union is making some sort of estoppel

argument, it cites no legal support for such a position. Nonetheless, the story is not so simple. In

its opposition to the APWU’s cross-motion for summary judgment, the Postal Service backs

away from its position in the arbitration briefs that the Global Settlement was intended to close

the cases held in abeyance without any remedy and offers a new position on the issue. See Def.’s

Opp’n Pl.’s Mot. Summ. J., ECF No. 15, at 14 n.5.

       As evidence of the Postal Service’s revised position, it provides a declaration from Mr.

Mlakar clarifying his prior testimony and describing the Postal Service’s stance moving forward.

Specifically, Mr. Mlakar attests that in June 2011 he met with the APWU’s Mike Morris, and the

two of them agreed that parties in the field offices should resolve the cases held in abeyance by

“using their best judgment,” rather than applying one, catch-all remedy:

       We agreed that the parties in the field should be allowed the opportunity to
       resolve the cases on their own accord using their best judgment, and the global
       settlement as a guideline. There was no agreement that the parties must apply the




                                                 22
         new work hour limits of the Global Settlement for an hour by hour payout remedy
         in every grievance.

Mlakar Decl., ECF No. 15-2, at ¶ 7. Based on Mr. Mlakar’s explanation, the Postal Service

asserts that it “no longer maintains that the parties agreed to close all the cases with no remedy.”

Def.’s Opp’n Pl.’s Mot. Summ. J., ECF No. 15, at 14 n.5. Instead, it now argues that the Global

Settlement “language at most requires that the cases held in abeyance be decided on a case-by-

case basis with the Global Statement as a guideline, but not a bright line rule applicable to all

cases.” Id. Furthermore, the Postal Service explains that “if Arbitrator Das agrees with [its]

interpretation, [he] will then have to address the process for conducting a case-by-case

assessment of the cases held in abeyance.” Id.

         It is well established in this Circuit that a party “cannot create or resurrect a genuine issue

of material fact and thereby defeat summary judgment by filing a self-serving affidavit that

contradicts previous sworn testimony.” Thompson v. Islam, No. Civ.A. 01-0585, 2005 WL

3262926, at *3 (D.D.C. July 29, 2005); see also St. Paul Mercury Ins. Co. v. Capitol Sprinkler

Inspection, Inc., 573 F. Supp. 2d 152, 160 (D.D.C. 2008). However, “[i]f the supplemental

affidavit [or declaration] does not contradict but instead clarifies the prior sworn statement, then

it is usually considered admissible.” Galvin v. Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir.

2007).

         Although the position the Postal Service adopts through the declaration is different than

the stance it took in earlier briefing to the arbitrator and this Court, Mr. Mlakar’s declaration

does not so squarely contradict his prior statement that it is inadmissible. Instead, the declaration

appears to clarify the ambiguity embedded in his testimony. The Court also notes that Mr.

Mlakar’s testimony already contradicted the Postal Service’s position in its arbitration remedy

briefs, which inherently created a feeling of uncertainty about its interpretation. The declaration,



                                                   23
moreover, provides a thorough explanation about the question Mr. Mlakar thought he was

answering in the testimony and how that affected what he meant when speaking under oath. See

Mlakar Decl., ECF No. 15-2, at ¶ 9 (“I did not intend to say that every case held in abeyance

should be settled by applying the work hour limits of the Global Settlement. My assumption was

that Patrick Devine (the Postal Service advocate) was asking me about a hypothetical situation

where the parties in the field already had decided to apply the Global Settlement’s work hour

limitations.”); cf. Pyramid Sec. Ltd. v. IB Resolution, Inc., 924 F.2d 1114, 1123 (D.C. Cir. 1991)

(“[T]he prior sworn statement will receive controlling weight unless the shifting party can offer

persuasive reasons for believing the supposed correction.”). For these reasons, the Court accepts

the declaration as admissible evidence clarifying the Postal Service’s position regarding

application of the Global Settlement to the cases held in abeyance. 4

       The question remains, however, whether a dispute now exists between the APWU’s

position and the Postal Service’s stance, as clarified through Mr. Mlakar’s declaration. Indeed,

the Postal Service’s revised position appears to be more similar to that of the APWU than it

initially was, given that the Postal Service now concedes that some remedy may be appropriate

in certain circumstances. Nonetheless, the Court finds that, at the very least, a sliver of light

remains between the parties’ interpretations because the Postal Service believes that the Global
       4
                The APWU also suggests that the explanation in the Joint Contract Interpretation
Manual (“JCIM”) is evidence that the Global Settlement does not require further interpretation.
See Pl.’s Mem. Supp. Mot. Sum. J., ECF No. 12, at 9. During each collective bargaining
agreement period, the parties jointly issue a JCIM “as a resource for administrating the National
Agreement.” McKinnon Decl., ECF No. 12-4, at ¶ 14. The JCIM has a section referencing the
work hour limits of the Global Settlement which states that “[w]here bargaining unit work which
would have been assigned to employees is performed by a supervisor and such work hours are
not de minimus, the bargaining unit employee(s) who would have been assigned the work shall
be paid for the time involved at the applicable rate.” 2012 JCIM, ECF No. 12-6, McKinnon
Decl., Ex. B at 36. As the Postal Service points out, however, there is nothing in the JCIM that
resolves the present dispute about the remedy for pre-Global Settlement conduct. See Def.’s
Opp’n Pl.’s Mot. Summ. J., ECF No. 15, at 12 n.3.



                                                 24
Settlement was intended to be applied on a case-by-case basis as a guideline, while the APWU

argues that the settlement established bright-line rules applicable to all cases held in abeyance.

When such a gap exists, the grievance-arbitration process must fill it, not a court.

                                          *      *       *

       Article 15 of the APWU-Postal Service 2010 National Agreement establishes a

collectively bargained-for grievance-arbitration process that applies to disputes about the

interpretation and application of the Global Settlement. Here, there is no genuine dispute of

material fact that a disagreement exists between the APWU and the Postal Service regarding how

the Global Settlement applies to a specific set of cases that were held in abeyance while the

settlement was being negotiated, and it is clear that the APWU has failed to exhaust the

necessary grievance-arbitration process to resolve that dispute before filing the instant lawsuit.

As such, the APWU’s action is premature, and the Court cannot grant the relief the Union seeks.

See Am. Postal Workers’ Union, AFL-CIO v. U.S. Postal Serv., 646 F. Supp. 2d 1, 4 (D.D.C.

2009) (granting motion to dismiss for lack of jurisdiction when the APWU failed to exhaust

Article 15’s grievance-arbitration process because “[u]nder the Postal Reorganization Act,

contractual remedies must be exhausted before judicial intervention can occur”).


                                       V. CONCLUSION

       For the foregoing reasons, the Postal Service’s motion to dismiss or, in the alternative, for

summary judgment, is GRANTED, and the APWU’s cross-motion for summary judgment is

DENIED. An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.


Dated: August 26, 2014                                              RUDOLPH CONTRERAS
                                                                    United States District Judge


                                                 25
