be laws, rules, etc to protect the permanently injured employees as well. |
pray the Board take this brief to heart and make the laws supreme as they
were for 3 (three) decades. There is no excuse for breaking the laws.
There is ways to adjust the laws but these laws were written well and their
intentions lasted for 3 (three) decades or until the NRP became Blessed by
the Agency’s higher authorities to breach the laws in documentation form

and others missed through research.

IN CONCLUSION
Words were never spoken more eloquently than by NALC and the
attorneys for the appellants. With the advisory opinion not received and
unknown when it will be received, these opening briefs should make the
decision of the Board an easier one to make. The iaw, etc, are well
represented here and leave nothing to be construed as a gray area. The
only interruption here is, the one of the writers of laws, rules, regulations,
handbooks and manuals and policies not to be superseded by mere NRP
guidelines.
The intent here and all the amicus briefs is but for established laws, rules,
regulations, handbooks and manuals, policies and contracts of all involved

unions, to be upheld. | have spent my career working and helping others in

oed €6ZEPLEIOS LEQLHONVYS O1VN dgg:1o ib el des


4 district. As everyone possibly knows, Texas is wide opened but in some
parts of Texas, not many miles have to be traveled to access other districts.
Here in Amarillo, | would have to travel many miles to get to another
district. The bottom line is the violations of the laws. | proved in all the
hearings | was a part of that 12 to 14 zip codes in Amarillo did not respond
to the emails that were sent out. These emails were searching for work
only in our craft. The use of the pecking order though not needed here was
not adhered to. Again here legitimate job offers were taken away and
given to non-disabled employees causing excessive overtime and crossing
crafts. Mr. Reyes wording “quis custodiet ipsos custodes” from Latin could
never be truer. “Who will guard the guards”. “Who will watch the

watchman”?

As for the brief from Michael Hillings, operator of tractor/trailer. It is a
testimonial of situations that are common throughout the Agency. The
Agency has a one-tract mind and passes on these injustices nation wide.
Mr. Hillings got injured in November 2002 from an accident (not at his
fault). He partially overcame this massive injury through a few years. At
one point the Agency did away with his job and he transferred to another

city. To make this story short (with no disrespect to Mr. Hillings) it seems

14

ppd e6ZEpZE908 LEOLHONVES O1VN Spe:loLL er des


100% Disability Disability partially overcome Disability
fully overcome

none ors os ot
Zero recovery Partial recovery Full recovery
Total disability Partial disability Zero
disability

. The concept “overcome a disability” is plainly not an absolute, but rather is one
involving degrees. Unlike absolutes (€.g., death, pregnancy; one cannot be
partially pregnant), one may “overcome a disability” either partially or wholly. To
the extent that the PS appears to argue that the concept in 5 USC 8151 is an
absolute, the PS is wrong, as demonstrated by the above references to code and
regulations.

. The Postal Service argues as if 5 USC 8151 uses the phrase “if the disability is
fully overcame”. For example, on the bottom of page 26 it writes: “Congress has
restricted FECA reemployment rights to fully recovered employees.” (emphasis
added). The adjective ‘fully,” however, is not found in 5 USC 8151.

. The Postal Service argues that the context of 5 USC 8151 implies it covers only
employees who have fully overcome a disability. Here is the Postal Service
argument:

Under 8151(b), “overcoming” a disability can only mean that the ill or
injured employee has recovered to the point that the original position can
again be performed — in other words, that he or she is fully recovered -
since the entitlement is only to the original position or its equivalent...
Under 8151(b), rights are granted only fo employees who have recovered
sufficiently to perform their pre-injury or illness position. (Page 10)

This argument fails because the Postal Services disregards the
ambiguous phrase “or equivalent position within such department or
agency, or within any other department or agency.” Two points here.

1. Blacks Law dictionary defines “equivalent” as *... having equal or
corresponding import, meaning or significance” as well as other -
meanings. A partially recovered employee assigned by the Postal
Service to a modified assignment (tasks and subfunctions from
multiple positions) in accordance with EL 505 Section 11.7 will
receive saved rate (ELM 421) as well as other contractual
protections. Such an assignment will constitute an “equivalent”
position within the meaning of 5 USC 8151.

2. The actual language of 5 USC 8151 includes assignment to an
equivalent position in any other department or agency. Plainly, the

€6cebLE908 LEOLHONVYS OWN die:LoLb et des


need. | have not written any policies or other binding instruments. | have
only tried to enforce the existing ones. When these binding instruments are
agreed upon by the Parties, they are not for over zealous management to
interrupt them, their selves. Since there has been no answer from OPM to
justify their reasoning by answering the Board’s 2 (two) questions, it can
only be a concession of violation and trying to save face on what would be
verbiage as to their answers. If you are caught red handed, there are
consequences to your actions. This NRP process is a truly right or wrong
doings at the detriment of a protected class of employees. All employees
are protected against an alleged incident and have the right for their day.in
court. This is finally my day in court.

On September 8, 2011, | finally received the Advisory Opinion from OPM.
Ms. Kaplan answered the first question from the Board in a truthful, honest
and lawful manner. The Agency in its brief answered question 2 (two) in
the affirmative. The answer was, the Agency has set to having a higher
standard. The 2 (two) questions go hand in hand. If the answer to the first
question is the Agency acted “arbitrary and capricious” for having an
internal rule they violated, there has to be an obligation to those affected by

their acts of harm. For these reasons and the facts of jaws, etc., along with

Led €62Er2E908 LEOLHONVYS OTWN dge:bo Lb eL des


CERTIFICATE OF SERVICE

I certify that the attached Document(s) was (were) sent First Class

mail this day to each of the following:

FAX:
The Clerk of the Board

U.S. Merit Systems Protection Board

5" Floor Mail Room
1615 M Street, NW
Washington, DC 20419
(202) 653-7130

FAX:

Therese Gegen

USPS

Law Department-SW Office
PO Box 227078

Dallas TX 75222-7078
(214) 252-6169

Ruby Turner

Marcella oe

atham

ev e6zerLesogs

Cynthia E. Lundy

Arleather Reaves

Hand delivered:

James A. Penna
3212 Villa Place
Axmarillo, TX. 79109

September 13, 2011

ZEOLHONVYS O1VN

dze:LorL et des


“make every effort” clause. NRP is an instrument that tried to get around
its legal obligation and the Agency secretly concluded this harmful process
on January 31, 2011, unbeknown to masses of employees harmed by this .
process. Although the Agency says it has done away with NRP, they are
still practicing the illegal guideline principle to date. Those with reduced
hours are still reduced, those with job offers made April 26, 2010 prior to
the April 27, 2010 (No work available) and still working unless retired.
Discontinuing, doing away with etc. means in all situations, return as
before. Mr. Lerner is correct when he says, “the examples could continue,
but there is no reason to belabor the point”. | pray the Board take to heart

Mr. Lerner's amicus brief.

As for the brief from Mr. Richard M. Gallos with APWU union in Wisconsin.
| feel Mr. Gallos brief has the intent of Darryl Anderson’s brief that is
correct. Refer to the brief from Mr. Anderson. Mr. Gallos brings to the
Board the same instruments of legal authority and answers the 1° question
as “unequivocally yes”. Mr. Gallos answered the 2” question by using a
brief on behalf of NALC advocate, Jeffery Fults. Mr. Fults as is Mr. Gallos
brief is completely on point. Mr. Gallos alludes to the Agency trying to

suggest that their actions are somehow justified due to some financial

18

gyd e6Z7EpLE08 LEOLHONVUYE O1VN dge:10 1b eb des


Service. She is correct in her conclusion. Ms. Manzo also confirms the
NRP is obsolete (January 31, 2011), yet the Postal Service is still not

making it right for the harm they have done. | pray the Board take this brief

to heart.

As for the brief by J.R. Pritchett, representative for appellant, Arleather
Reaves, he defined the words arbitrary and capricious. He is correct in the
search for work (50-mile radius) except that twelve (12) zip codes were not
searched in the Amarillo city limits. Mr. Pritchett probably does not know
my case very well, but theses zip codes were testified to in three (3)
hearings for employees in Amarillo TX. He is well versed in the Black Law
Dictionary as it helps me in my non-attorney representation for employees
of the Postal Service in violation of EEOC, MSPB’s and other forums in the
past. Ms. Reaves is well represented with Mr. Pritchett. He to is well
versed on.law, rule, regulations, etc. | pray the Board take this brief to

heart.

As for the brief written by Thomas Albright for Marcella Albright. Mr.
Albright answers the Boards two (2) questions with strong persuasion. Mr.

Albright is also knowledgeable in law, rule, regulations, etc. He is correct

10

ord L6ZEPLELOS LEQLHONWUYE OWN dee:rorrerdes


As for the APWU amicus brief, Mr. Darryl J. Anderson, either received
some wrong information or did not read the case thoroughly. He states that
| would have made a non-frivolous allegation had | shown other employees :
were still doing the duties | was performing, which in fact is the case. All
the effected employees in my local area did just that. Uniquely created
jobs for injured-on-duty employees were taken away and given to younger
and less qualified employees. Doing this has created more overtime,
shifting employees from their bid positions. A clerk covered by APWU was
put off the clock, no work available from one of the facilities. She was a
boxing clerk. Boxing mail for customers is a must do job daily for the nation
as a whole. Letter Carriers, custodian and management are still doing her
duties daily. APWU has filed one (1) grievance on the NRP for this
employee since or after April 27, 2010. The APWU lacks

much as to its representation for its membership. The fact is their amicus
brief deals with their thought that these uniquely created job duties should
be placed for bid positions under Article 37 of the CBA. APWU filed a
grievance on this very issue stating a uniquely created position for injured
on duty employees should be thru seniority and go thru the bidding process
first. NALC intervened and agreed with the Agency, stating once the

injured employee left that position would no longer exist. APWU lost this

ida CSzerZesoes LEQLHONVYE O1VN dZe10 LL EL des


statute envisions assignments to jobs other than the pre-injury
position.

Conclusion

Since the language of 5 USC 8151 is ambiguous regarding application to all degrees of
“disability overcome”, it should be construed consistent with the stated intent of its drafters. It
should also be construed in a broad manner to effect the remedial intent of the FECA.

Additional Note

in a secondary argument (that expanding the Board's jurisdiction would inappropriately
involve the Board in the activities of OWCP) the Postal Service incorrectly asserts that
OWCP regulations provide that job offers of less than 4 hours and/or to temporary

positions are unsuitable, and that an employee's decision to refuse such an unsuitable

job does not impact the receipt of compensation. (See pages 17 & 30)

In support of that argument, the Postal Service claimed that OWCP regulations provide that job
offers of less than 4 hours and/or to temporary positions are unsuitable, and that an
employee's decision to refuse such an unsuitable job does not impact the receipt of
compensation. (See pages 17 & 30)

The Postal Service is wrong when it claims that an injured employee who refuses a temporary
(or less than 4 hour) job offer will not have his or her compensation.

in fact, OWCP holds that while a job offer that is medically unsuitable need not be accepted,
and wage-loss compensation will be paid. However, OWCP holds that if a job offer is medically
suitable, but not otherwise (temporary, less than 4 hors) suitable, it must be accepted - and
that wage-loss compensation is not payable if the job offer is not accepted. OWCP recently
amended 20 CFR 10.500 to reinforce the above (the newly added language is italicized):

§ 10.500 What are the basic rules governing continuing receipt of compensation
benefits and return to work?

(a) Benefits are available only while the effects of a work-related condition
continue. Compensation for wage loss due to disability is available only for
any periods during which an employee’s work-related medical condition
prevents him or her from earning the wages earned before the work-related
injury. For example, an employee is not entitled to compensation for any
wage-loss claimed on a CA-7 to the extent that evidence
contemporaneous with the period claimed on a CA-7 establishes that an
employee had medical work restrictions in place; that light duty within those
work restrictions was available; and that the employee was previously
notified in writing that such duty was available.

gd e6zerdesoes ZEOLHONVYS O1VN digLoLLer des


hardship. Mr. Gallos is on point on this claim. "There is no hard evidence
to support that claim". The Agency's financial situation is man made and
goes to the credit of the Postmaster General. Potter seemed to have
retired at the right time with a 5.5 million dollar retirement package anda
bonus of over 270,000 dollars. Postmaster General Donahoe is
contributing to the Agency’s demise. Mr. Gallos states “the ultimate result
of the NRP has been to reduce the number of employees on the Agency's
roles at the expense of “only injured employees”. Mr. Gallos brings to the
Board as | have; the Agency has other non-discriminatory relief at its
disposal to accomplish that result. That is the bargaining agreements.
Specifically, the lay off provisions of Article 6 says in time of need you lay
off what is needed with employees under 6 (six) years of service. Article
12, the Agency can excess positions not bid on if a reduction is needed.
These 2 (two) articles agreed upon has a nondiscrimination instrument
because everyone knows when hired, they could be involved in a reduction
if they have less than 6 (six) years. Mr. Gallos assertion is correct in the
Board ruling for me. | have not worked this hard with my counterparts to
only include us few in any settlement, rather the laws have been in effect
for everyone. It is our research that gives the laws back to the injured on

duty employees. Hopefully, most can recover completely, but there had to

19

ord e€6ZEyLEL08 LEOLHONVES O1VN OSE:LO LL EL des


reaching decisions es for protecting the work force even if that meant to go
to binding arbitration. If we lose a case, NALC strives to correct the
problem, not dwell on the issue for years to come. The NALC stands
supreme as does the Agency’s handbooks and manuals, rules, regulations
and policies. If the Agency needs to change a handbook, manual or policy,
there is a process that involves all the unions to make the Agency last an
eternity. As for the Agency, they are striving to bring down the
constitutional monopoly daily. The lose of mail volume is a scapegoat for
poor management from top to bottom. You cannot save those who do not
want to save themselves.

NALC negotiated with the Agency in 1979 to change some of the wording
in the ELM. NALC has introduced all pertinent information to help in the
decision of the Board dealing with partially recovered employees. The

NRP was/is a discretionary guideline instead of the obligatory situation.

As for Ms. Geraldine L. Manzo, representative for Ruby Turner, she stated
positive and correct information dealing with partially recovered employees. .
Ms. Turner is well represented in her full and fair quest for adjudication.

Ms. Manzo is knowledgeable in the rules (internal), laws, etc. of the Postal

6d €6ZEbLE908 LEOLHONVYS O1VN dze:LO LL el des


UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BO.

Docket Numbers

James C. Latham DA-0353-10-0408-1-1

~ Ruby N. Turner SF-0353-10-0329-1-1

Arleather Reaves CH-0353-10-0823-1-1

Cynthia E. Lundy, and AT-0353-11-0369-1-1

Marcella Albright, DC-0752-11-0196-1-1
Appellants,

v.
United States Postal Service,

Date: September 13, 2011

APPELLANTS CLOSING/REPLY BRIEF

STATEMENT OF TH E CASE

On July 25, 2011, The Clerk of the Board, William D. Spencer, respectfully
tequested from the Honorable John Berry (Director of OPM) to submit an
advisory opinion to answer two (2) questions.

On August 17, 2011, Elanie Kaplan (General Counsel) responded to Mr.

Spencer request for the advisory opinion. This being three (3) weeks.of

Vd €62Cv2E908 LEOLHONVYS O1VN doe:10 LL eb des


opinion about applicable laws. Mr. Brown as some of the others uses the
Black Law Dictionary. Mr. Brown also brings up “constructively
suspended”. This is were this case originally started after May 26, 2010.
Mr. Brown also footnotes (page 12-8) failure to accommodate in violation of
the Rehabilitation Act of 1973 is a Prohibited Personnel Practice under 5
USC 2302(b)(1)(d). Mr. Brown cites (page 13, 1% paragraph) that the
appellant argued thal the Agency's failure to follow the ELM constituted
harmful error. This NRP has not only been harmful to me but to the
approximately 120,000 employees that have been injured on the job. Mr.
Brown also talks about the AJ appearing to focus on my inability to perform
the duties of my position, yet, was improper inquiry when determining
whether the Agency violated the relevant ELM provisions. With no
disrespect to the AJ this was done and appeared to have my case
dismissed before a hearing ever took place. This seemed to be the case in
two (2) other hearings that | was a part of. In Mr. Brown’s conclusion, he
reiterates that the ELM language is supreme and the Agency's action must
be considered “arbitrary and capricious’. | pray the Board takes this stand

and without mention of the man made economic condition rule on the

merits and violation of law.

12

ad e6zEpLeo08 LEGLHONVYS OWN dee:1o LL et des


also in his defense of Ms. Albright and the consolidated cases. | have tried
to find attorneys like these for sixteen (16) months but not one would touch
my case. It is a thanks from the bottom of my heart that attorneys like
these exist and perform a service so needed by Postal employees. | pray
the Board take this brief to heart.

These attorneys representation at a time in need is honorable and just. |
say little about these attarneys and congratulate them for their service.
Few words are needed to commend them. Lots of words were needed for

briefs in dispute.

As for the brief by Steven E. Brown for W.I.L:G. Mr. Brown does a great
job as well as all writers, to show who, what, where and why the Postal
Service is acting arbitrary and capricious in their actions under the NRP.
process. Mr. Brown not only cites the laws, etc that have been violated but
also brings up lower MSPB rulings not in favor of the appellant. This
amicus brief as well as the others are a good read. The attorneys are
assembling the language for the most part in ways that a layman like me
can understand. Although its not simple language and takes me 2 or 3
times to read, it is in my opinion excellent for these attorneys to take time

out of their days to investigate the resources and write the facts and

Lid €6ZEPLE908 LEOLHONVYS O1VN dee:1o Lt eL des


grievance in arbitration. NALC was trying to take care of all injured on the
job employees by doing the fair and just remedy. APWU is still trying to
piggyback their losses into this instant case. Where APWU fails in their
quest, they do not have knowledge of this instant case. | did not fail the
jurisdiction process. This Judge dismissed my case because | did not
prove arbitrary and capricious in taking away my permanent rehabilitation
job offer. The Board has stated that withdrawing job offers is arbitrary and
capricious. APWU makes it sound like | would be taking duties away from
the clerk craft. At this time, Mr. Anderson is far away from the truth. NALC
strives to protect all employees by fair and just Jaws, rules and regulations;
etc without affecting the rights of other employees. | cannot say as much
for APWU. They are lost in seniority biding principle, while | am an injured
on the job employee that had a permanent Rehabilitation job offer. APWU
and the Postal Service should be treating these injured employees with

Dignity and Respect, which is what the CBA’s are based on.

As for the NALC amicus brief, it is a true and representative brief. This
brief is how unions ought to write and defend all employees of the Postal
Service. Not all grievances are won, the representation far exceeds that of

our sister union. The NALC has for many years worked with the Agency in

gd e6ZEP2E908 LEOLHONVYS O1VN dze:10 1b eb des


the amicus briefs submitted, | pray the Board will rule what is right and just

for all involved.

Regards,

James Latham

Date

22

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In response to Issue #1, the Postal Service argues that the Board does not have
jurisdiction over 5 CFR 353.304(c) appeals on the basis of agency denial of restoration
in violation of the agency's own internal rules (e.g., ELM 546). According the Postal
Service, this is because the Board should have no jurisdiction over 5 CFR 353.304(c) at
all. In making this argument, the Postal Service attacks the very foundation of the 5
CFR 353 language regarding partially recovered employees.

The Postal Service argues in its brief that 5 USC 8151 unambiguously limits OPM to
promulgation of regulations providing for restoration only af fully recovered employees,
and therefore the regulations in 5 CFR 353 regarding partially recovered employees “is
beyond the regulatory authonity granted OPM by FECA and cannot form the basis of
Board jurisdiction.” (p. 3). It argues that 5 CFR 353.301 (d) is therefore unenforceable.

The Postal Service acknowledges that the legislative history of 5 USC 8151 (see page 9
— 10 & 13) supports that its intent included promulgation of regulations (i.e. 5 CFR 353)
protecting the rights of partially as well as fully recovered employees. But the Postal
Service argues that legislative history should be disregarded because the language of
8151 is unambiguously limited to fully recovered employees.

Analysis of Postal Service Position on 5 CFR 353

4. 5 USC 8151 does not unambiguously limit the OPM to promulgation of regulations
regarding fully recovered employees only.

a. Consider the various legal and regulatory iterations of the key concept:

i. The operative phrase in 5 USC 8151: __ if the injury or disability is
overcome.

ii. The implementing regulations at 5 CFR 353 use the synonymous concept
recovered, and dissect it to include fully recovered and partially recovered
(see 5 CFR 353.102 Definitions).

iii. The FECA itself at 5 USC 8105 and 8106 employs the same concept
using the terms total disability and partial disability as the headings of
subsections 5 USC 8105 and 5 USC 8106 respectively.

iv. Implementing regulations at 20 CFR 10.5(f) define “disability”: Disability
means the incapacity, because of an employment injury, to earn the
wages the employee was receiving at the time of injury. It may be partial
ar total.

While the terms differ, the concept is the same. The concept concerns the

ability to do work to earn wages. It is fundamentally an economic, not a
medical concept.

vd €62EPLE908 LEQLHONVYS OTVN deLo rb e des


he was treated fairly in regards to the laws, rules, regulations, etc. until
NRP. Mr. Hillings story is like most others that preceded him or were
injured after him. His doctors did the best they could to help him partially
recover and assigning him with restrictions. Although his pain was
inconceivable, Mr. Hillings tried to continue working te be a productive
member of society. But 6H the other hand the Agency punished him for
getting hurt. They even tried several times to get him to go beyond his
physical capabilities (with documented proof as to injury) and perform task
that were merely, not quite as bad as the Holy cost. | applaud Mr. Hillings
doctors and tell them | am sorry for the crap the Agency did him. This ergo
links with this Smith lady ought to be closed and the people associated with
it not be permitted to be in any kind of medical field. | fell people like Ms.
Fitzpatrick and all postal management associated with NRP should be put
out on the street. But that’s my call and another story. Employees that get
injured in any of the special occupations of the Agency are expected to (if
carrier) carry the rest of the mail that day and come back to the office.
Managers play with the doctors expertise and decide if the injured
employee needs treated. If you are a clerk, finish the job at hand and then
the Agency will decide if you need to go to the Agency’s doctors. If you go

that doctor twice, he becomes the doctor of record. The Agency can

gid e62ep2eg0e LEOLHONVYE O1VN dpe:LolLeLdes


As to the brief from Bruce R. Lerner who is with the Mail Handlers Union.
Mr. Lerner and others have alluded to a phrase that “the Board has not yet
addressed the issue whether the failure of the Agency to apply a provision
of the ELM may qualify as arbitrary and capricious conduct sufficient to
establish Board jurisdiction under 5 CFR 353.304(c). If this be the case |
pray the Board will rule on this issue in my favor, help the Agency start
cutting their losses and put an end to this harmful breach. 120,000
employees on the roles of OWCP and not paying taxes is detrimental to our
national economy. Make whole to the fullest extent of the laws and return
rie to my job as | was prior to April 27, 2010 and make whole the
employees involved in NRP since its inception. Return us to be productive
members of society or a chance to. Others may not want to return and are
happy with whatever they are doing. Mr. Lerner again brings to the Board
the laws, rules and arbitrations and opinion that “there can be no question
that the Agency's failure to comply with the ELM would be “arbitrary and
capricious". Mr. Lerner also says the “Agency’s failure to comply with the
restoration rules that are set forth in the ELM therefore would be clear
evidence of “arbitrary and capricious Agency conduct”. Mr. Lerner brings
up the “make every effort” clause. Every effort is on going and never ends.

The Agency's one time effort by doing a few emails does not satisfy the

avd eezerzegues LEOLHONVYS OTWN dge:10 LL gL des


1) May a denial of restoration be “arbitrary and capricious” within the meaning of 5 CFR
353.304(c) solely for being in violation of the ELM, i.¢., may the Board have jurisdiction
over a restoration appeal under that section merely.on the basis that the denial of
restoration violated the agency’s own internal rules?

2) What is the extent of the agency’s restoration obligation under the ELM, i.e., under
what circumstances does the ELM require the agency to offer a given task to a given
partially recovered as limited duty work?

Let's look at how the Postal Service addressed these issues in its brief in reverse order.

Isuue #2: The Postal Service fully acknowledges in its brief that the ELM
obligation goes beyond the 5 CFR 353 restoration obligation.

There should be no doubt that the Postal Service's obligation under the ELM and its
own internal rules goes beyond the 5 CFR 353 restoration obligation. The Postal
Service fully acknowledges this in its brief.

On pages 4 and 5 of its brief it writes

The provisions of ELM 546 and Handbook EL-505 afford FECA claimanis the right to be
considered for assignments other than assignments to regular positions. In doing so,
they exceed FECA’s promise of restoration — or priority consideration for restoration
~ only to regular positions. They are also incorporated into the Postal Service's
collective-bargaining agreements, agreements that cover the overwhelming majority of
the Postal Service’s workforce. ELM 546 and Handbook EL-505 are integral to (he
Postal Service’s collective-bargaining agreements as a substantive... Depending on the
circumstances, ELM 546 and Handbook EL-505 obligate the Postal Service to
search for work that is not a regular position and offer work if it is found.
(emphasis added)

Later in its brief, the Postal Service cites Handbook EL-505 to make the point that
limited duty assignments “are comprised, not of regular positions in the workforce, but of
duties assembled to match the employee’s temporary need." (p. 21) And “Handbook
EL-505 authorizes the creation of a new position in the workforce to which the employee
can be permanently assigned.” (p. 23)

Clearly, the Postal Service concedes in its brief that its obligations under the El.M and
EL-505 go beyond the 5 CFR 353 restoration obligation.

Issue #1: The Postal Service erroneously argues that OPM exceeded its
authority when it promulgated 5 CFR 353.304{c).

w

ed £62EpLe908 LEOLHONVYS O1VN dLeLOLL el des



elapsed time. Ms. Kaplan explained that OPM would write the opinion at
the earliest possible time, anticipating that would occur within the next
week. | have already submitted the letter to Kathy Davis

from OPM, explaining that the Agency does have an obligation to find work
per the Collective Bargaining Agreement (CBA).

As of today, September 8, 2011, | have not received a response from OPM
concerning the advisory opinion. As for the amicus brief from Mr. Bubb
(Agency representative) he is saying even though there have been laws,
rules and regulations; etc. that have been in place for more than three (3)
decades, that some of these laws, rules; etc have over extended their
authority. This is not the first time these laws, rules; etc have been brought
up in various forums and decisions were made. The Agency has had more
than thirty (30) years to decide if one or more of their policies have
extended their authority and chose not to do so. Now in a last ditch effort,

the Agency is drawing straws and gasping for air.

To make this point in more detail, please consider the following analysis of the Postal
Service's position.

Under current MSPB precedent, agencies are required “to search within the local
commuting area for vacant positions to which an agency can restore’ a partially
recovered employee and to consider the employee for any such vacancies” but are not
required to assemble available tasks from multiple positions to create a unique
appropriate assignment. In order to address whether Postat Service regulations create
additional restoration rights for Postal employees appealing to the MSPB, the Board
asked the parties to the conjoined case to address the following issues:

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As for the brief submitted by George Reyes with the Dispute resolution
Team for USPS/NALC. , He again complies documents and language in a
professional manner. He sets the stage as to answering four (4) questions
breaking down the Boards two (2) questions, which | feel was appropriate.
Mr. Reyes bases his opinion again off of well-established law and
decisions. Mr. Reyes incorporated the CBA into other laws and places
articles of contest into proper order and violations into retrospect. Mr.
Reyes brings to fact the other forums available such as EEO and the
Supreme Court rendering decision even though the aggrieved filed a
grievance. Mr. Reyes also brings to the table the NLRB. We have recently
won several cases with that Board. We will go to hearing in November for
local management refusing to furnish requested information. The NLRB
has jurisdiction over these cases. Mr. Reyes brings up the ELM 513.361,
which states Documentation for absences for three (3) days or less.
Locally we are facing some similar situations. These altered egos that
managers have cost the Agency enormous monies that could be applied to
its economy in other ways. Altered egos even for the Postmaster General
Donahoe need fixed where the Agency can exist into the 22" century.
Even in New Orleans, LA, the inconsistency of the commuting area is

present. In Amarillo TX the commuting area consisted of 50 miles and only

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manipulate them to write, say or treat however they deem. Playing doctor
by the Agency's management is not covered under the ELM, the Rehab
Act, the ADAAA, EL 307, the EL 505 or any other handbook or manual.
Although it is covered in the grievance procedure, the EEO process, MSPB
process and any other forum where neglect or mismanagement,
discrimination and these factors are concerned. | pray in Mr. Hillings case
and all other cases unjustly prosecuted by the Agency that the Board will

do the right and just rulings.

As for the brief submitted by Harvey Orr, Member of the National Alliance
of Postal and Federal Employees. He took the time to research and write
this brief with heart felt words and proper documentation pertaining to the
unjust treatment by the NRP. Mr. Orr is to be commended for a job well
done. Mr. Orr even researched enough to know that the Agency secretly
concluded NRP on January 31, 2011. The Agency claims it has renamed
NRP to ELM 546. How smart is that? This and other violations of laws,
rules, regulations, etc. is why we have got to this point in the process. Mr.
Orr is well schooled in these processes that | pray will get justice of all

involved.

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