## United States Court of Appeals for the Federal Circuit

2007-3022

DAVID L. GUTKOWSKI, Petitioner,

v.

UNITED STATES POSTAL SERVICE, Respondent.

Peter G. Loftus , The Loftus Law Firm, P.C., of Waverly, Pennsylvania, argued for petitioner. Ray E. Donahue , Attorney, Appellate Division, United States Postal Service, of Washington, DC, argued for re spondent. On the brief was Lori J. Dym , Chief Counsel. Also on the brief was Peter D. Keisler , Acting Attorney General , Commercial Litigation Branch, Civil Division, Unit ed States Department of Just ice, of Washington, DC, Appealed from: United States Merit Systems Protection Board

## United States Court of Appeals for the Federal Circuit

2007-3022 DAVID L. GUTKOWSKI, Petitioner,

v. UNITED STATES POSTAL SERVICE, Respondent.

_______________________ DECIDED: October 23, 2007

_______________________ Before DYK and MOORE, Circuit Judges , and COTE, District Judge

. * COTE, District Judge

. David L. Gutkowski (“Gutkowski”) petitions for review of the final decision of the Merit Systems Protection Board (“Board”), di smissing his petition for enforcement of a prior Board order. Gutkowski v. U.S. Postal Serv. , PH-0752-01-0218-C-3 (M.S.P.B. Aug. 3, 2006). We affirm. BACKGROUND Effective March 19, 2001, the United St ates Postal Service (“agency”) removed petitioner from his position of Supervisor Level 16, Customer Service, at the Wilkes Barre Post Office in Pennsylvania. Follo wing a hearing, an admini strative judge (“AJ”)

* Honorable Denise Cote, District Judge, United States District Court for the Southern District of New Yo rk, sitting by designation.in the Board’s Northeastern Regional Offi ce mitigated the removal to a 90-day suspension and a demotion to the next-highest non-supervisory position, and awarded back pay and related retroactive benefits. Gutkowski v. U.S. Postal Serv. , PH-0752-01- 0218-I-1 (M.S.P.B. Apr. 19, 2002) (the “Initial Decision”). The Initial Decision became final on August 28, 2003, when the Board denied the agency’s petition for review. Gutkowski v. U.S. Postal Serv. , 94 M.S.P.R. 481 (Table), 2003 MSPB LEXIS 494 (Aug. 28, 2003) (the “Final Board Order”). Following the Initial Decision, the agency di rected Gutkowski to report for duty on May 24, 2002, to the position of Distribution Clerk, Part-Time Flexible (“PTF”), PS-5, in the Tunkhannock Post Office. Gutkowski did not report for duty, requested leave, and was carried in a leave-without-pay status as of May 24, 2002. On October 24, 2003, Gutkowski filed a petition for enforcem ent of the Final Board Order, alleging that t he agency had failed to meet its obligations under the Final Board Order by placing him in the PTF PS-5 position. In a Recommendation issued on February 24, 2004, the AJ concluded that the agency had proved compliance with the Final Board Order, but directed the agency to submit further ev idence regarding its calculation of back pay and annual leave balance. On March 29, 2004, while briefing proc eeded on the back pay and annual leave balance issues, Gutkowski returned to the a gency in the PTF PS-5 position assigned to him following the Initial Decision. On January 12, 2005, Gutk owski filed a Motion to Accept and Consider New Evidence, in wh ich he (1) contended that the agency failed to provide him notice of higher-level employm ent opportunities pursuant to the Final Board Order, and (2) submitted a declaration from James Zielinski, Clerk Craft Director,

2007-3022 2American Postal Workers Unio n (APWU), Wilkes Barre Local , regarding the availability of positions within the agency, including a printout listing se venty-six full-time positions within the Harrisburg, Pennsyl vania District that were available between 2001 and August 2003. On February 2, 2005, the agency assigned Gutkowski to the non-supervisory, EAS-11 position of Postmaster, Shawanese, Pennsylvania. On February 11, 2005, the agency responded to Gutkowski’s January 12 moti on, informing the Board of his recent promotion to the EAS-11 position. The agency subsequently submitted, inter alia , a declaration from Paula McK ee, Manager, Labor Relations, Cent ral PA District (formerly the Harrisburg District), in which she expl ained that offering Gutkowski any of the higher-level, non-supervisory positions listed in the Zielinski declaration would have violated the collective bargaining agreem ent between the ag ency and the APWU (“National Agreement”). On April 4, 2006, the Board held that the agenc y had complied with the provisions of the Final B oard Order concerning Gutkowski’s back pay and annual leave balance, and further held that the agency had taken the necessary steps to ensure that his health coverage was continued. Gutkowski v. U.S. Postal Serv. , 101 M.S.P.R. 399, 402-03 (2006). The Board also held, however, that the evidence submitted by Gutkowski on January 12 constituted new allegations that the agency was in noncompliance with the Final Boar d Order for failure to (1) pl ace him in the next highestnon-supervisory position below his former EAS-16 position, and (2) notify him of highergraded positions for which he is qualified. The Board forwar ded these allegations to the

2007-3022 3Northeastern Regional Office for docketing as a new petition for enforcement. Id. at 406. Upon receipt of the Board’s decision, t he AJ issued an A cknowledgement Order directing petitioner and the agency to file wr itten responses regarding the placement and notification issues identified by the Board. In support of its contention that it had complied with the Final Board Order, the agency submitted an affidavit from Kathy L. Gill, Manager of Personnel Service for the Central PA District, who had been responsible for implementing the Initial Decision. Gill stated, inter alia , that the EAS-11 position to which Gutkowski was ultimately assigned was the “first position I became aware of that [Gutkowski] was qualified to f ill” following his return to the agency in the PTF PS-5 position in March of 2004. She conceded that other EAS-11 and -13 positions had been available prior to Gutkowsk i’s placement in the EAS-11 position, but averred that those positions were outside of Gutkowski’s commuting area, in which Gutkowski had stated his desire to remain, and thus had not been considered for him. She further stated that all of the EAS-15 positions that had been available during that time required supervision of another agency employee, and were thus not available to Gutkowski under the terms of t he Final Board Order. Gill al so detailed the efforts made to notify Gutkowski of available EAS vacanc ies before and after his placement in the EAS-11 position, and stat ed that Gutkowski had not applied for any of those positions despite such notification. Gutkowski re sponded by referring to the contents of the previously submitted Zielinski declaration as evidence t hat other EAS positions could have been made available to him sooner, and di sputed Gill’s representation regarding his unwillingness to work outsi de of his commuting area.

2007-3022 4In a decision on August 3, 2006, the AJ denied Gutk owski’s petition and found that the agency had complied wit h the Final Board Order. Gutkowski v. U.S. Postal Serv. , PH-0752-01-0218-C-3 (M.S.P. B. Aug. 3, 2006). Bas ed on a review of the Zielinski and McKee declarations, the Gill affidavit, and Gutkowski’s submissions, the AJ found that the agency had complied with its obligation to provide Gutkowski notice of EAS vacancies within his district, and that ot her EAS positions identified by Gutkowski required supervision of another employee, and thus were not available to him. The AJ also held that it would not have been “reasonable to require the agency to violate the National Agreement in seeking to place” Gu tkowski following the Final Board Order, citing Smith v. U.S. Postal Service , 55 M.S.P.R. 348 (1992), and Hicks v. U.S. Postal Service , 52 M.S.P.R. 561 (1992), and that the agency had theref ore acted appropriately in not assigning him to higher-level, non-super visory positions that would have placed the agency in breach of that Agreement. Gutkowski did not file a petition for review to the full Board, and the AJ’s decision became the final decision of the Board on S eptember 7, 2006. This appeal followed. DISCUSSION We will reverse the Board’s decision if it is, inter alia , “arbitrary, capricious, an abuse of discretion, or otherwis e not in accordance with law . . . [or] unsupported by substantial evidence.” 5 U. S.C. § 7703(c). On appeal, pet itioner does not contest the Board’s conclusions regarding (1) the adequacy of the agency’s notice of available EAS positions; (2) the status of ot her potentially available EAS-11, -13, and -15 positions; or

2007-3022 5(3) petitioner’s preference to work within a fifty-mile commuting distance. 1 Petitioner’s sole contention is that the AJ erred as a matter of law in holding that the Final Board Order did not require the agency to assi gn him to higher-level, non-supervisory positions if such assignment would have put the agency in breach of the collective bargaining agreement. The Final Board Order directed the agency to place petitioner, who had held an EAS-16 supervisory position prior to his removal, in “the next highest non-supervisory position.” Gutkowski , 2003 MSPB LEXIS 494, at *2. As established by the McKee declaration and not disputed here, following petitioner’s return to the agency in March of 2004, he was assigned to a PTF PS-5 position and not immediately promoted to certain higher-level, non-supervisory positions that were otherwise available because such placement would have been in violation of the National Agreement between the agency and the APWU. Petitioner contends that this represents a failure to enforce the Final Board Order because, under 5 U.S.C. § 1204(a)(2), the Bo ard has the authority to “order any Federal agency or em ployee to comply with any or der or decision” it issues, and therefore the provisions of the Final Board Order regar ding petitioner’s employment superseded any obligation the agency may have had under the relevant collective bargaining agreement. We reject this view. The Board has c onsistently held that “the provisions of a collective bargaining agreemen t have the weight of regulations and agencies must

1 Petitioner’s brief makes passing refe rence to the notice issue, and his counsel raised this issue at oral argument. To the extent that these statements can be construed as a challenge to the AJ’s conclusion that, in light of the facts presented in the Gill affidavit, the agency provided him with notice of all relevant EAS vacancies, we find that the AJ’s conclusion was support ed by substantial evidence and petitioner’s contention is therefore rejected.

2007-3022 62007-3022 7 comply with them.” Smith , 55 M.S.P.R. at 356; see also Hicks , 52 M.S.P.R. at 564; Poirier v. Dep’t of the Navy , 31 M.S.P.R. 214, 217 n.3 (1986); Giesler v. Dep’t of Transp. , 3 M.S.P.B. 367, 368 (1980); cf. Vitanza v. U.S. Postal Serv. , 94 M.S.P.R. 385, 390 (2003). While recognizing that these dec isions are not binding upon us, we agree that an agency is not required, pursuant to the terms of a Board order, to assign an employee to a particular position when that assignment would violate the applicable collective bargaining agreement. As highlighted by Hicks , requiring the agency to take action in violation of such an agreement can adversely affect third-parties and expose the agency to grievance actions under t he agreement. 52 M.S.P.R. at 563. We need not decide, however, whether the Board has the authority to order an assignment that would viol ate the applicable collectiv e bargaining agreement. An agency’s interpretation of its own orders is entitled to significant deference. See Ericsson GE Mobile Commc’ns, Inc. v. United States , 60 F.3d 778, 782 (Fed. Cir. 1995). Here, the Board reasonably construed the term “next highest non-supervisory position” in the Initial Decision as excluding positi ons that were unavaila ble under the collective bargaining agreement. Gutkowski , PH-0752-01-0218-C-3, slip op. at 8 (M.S.P.B. Aug. 3, 2006). Thus, it was not error for the AJ to find that the agency had complied with the Final Board Order with respect to the placement of the petitioner fo llowing his return to the agency. CONCLUSION The opinion of the Board in this matter is AFFIRMED. COSTS No costs.