pester

Ruby N. Turner
Appellant

Response to Consolidation
Order and Request for
Briefing dated 7/25/2011

US Postal Mail

Arleather Reaves
Appellant

Response to Consolidation
Order and Request for
Briefing dated 7/25/2011

US Postal Mail

Cynthia E. Lundy
Appellant

Response to Consolidation
Order and Request for
Briefing dated 7/25/2011

US Postal Mail

J.R. Pritchett
Appellant Representative

Postal Employee Advocates 86 East
Merrill Road

McCammon, ID 83250

USA

Response to Consolidation
Order and Request for
Briefing dated 7/25/2011

US Postal Mail

Geraldine Manzo
Appellant Representative

7700 Edgewater Drive Suite 656
Oakland, CA 94621
[USA

Response to Consolidation
Order and Request for
Briefing dated 7/25/2011

US Postal Mail

James A. Penna
Appellant Representative

3212 Villa PI.
Amarillo, TX 79106
USA

Response to Consolidation
Order and Request for
Briefing dated 7/25/2011

US Postal Mail

Pleading Number QD, Submission date : 2011-08-18 23:15:00

Confirmation Nurber

page 14 of 14


Postal Service (USPS) is in violation of the ELM”. As noted by the Board in the Request
for Briefing, the ELM is a Postal regulation (39 C.F.R. § 211.2(a)(2) (1988)) and, as also
noted by the Board, the USPS must follow its own regulations. In fact, the USPS must
follow their own regulations even if the particular USPS regulation has more
requirements or is more onerous than the requirements of any similar Federal Statute. In
United States of America v. Clark Heffner (420 F.2d 809 (1969)), the United States Court
of Appeals, Fourth Circuit, noted that

An agency of the government must scrupulously observe rules,

regulations, or procedures which it has established. When it fails to do

so, its action cannot stand and courts will strike it down. This doctrine

was announced in United States ex rel. Accardi v. Shaughnessy, 347

U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). There, the Supreme

Court vacated a deportation order of the Board of Immigration because

the procedure leading to the order did not conform to the relevant

regulations. The failure of the Board and of the Department of Justice

to follow their own established procedures was held a violation of due

process. The Accardi doctrine was subsequently applied by the

Supreme Court in Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1

L.Ed.2d 1403 (1959), and Vitarelli v. Seaton, 359 U.S. 535, 79 S.Ct.

968, 3 L.Ed.2d 1012 (1959), to vacate the discharges of government
employees.

Clearly, the USPS must follow its own rules; for the USPS to do otherwise is arbitrary
and capricious and its decision runs counter to well-established law. When the USPS
ignores any Postal regulation, because such an “action cannot stand and courts will strike
it down”, the Board must decide that the USPS is acting arbitrarily and capriciously when
the USPS violates its own rules. Therefore, the Board has jurisdiction within the meaning
of 5 CER. § 353.304(c).

The second question asked by the board is:

What is the extent of the agency’s restoration obligation under the
ELM, i.e., under what circumstances does the ELM require the agency

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Pleading Nunc Qa, Submission date : 2011-08-18 23:15:00 Confirmation Number QMS. page 5 of 14


knowledgeable about the purpose of the proposed change and its impact

on employees. If the Union, after the meeting, believes the proposed

changes violate the National Agreement (including this Article), it may

then submit the issue to arbitration in accordance with the arbitration

procedure within ninety (90) days after receipt of the notice of proposed

change. Within fifteen (15) days after the issue has been submitted to

arbitration, each party shall provide the other with a statement in writing

of its understanding of the precise issues involved, and the facts giving

rise to such issues.
ELM § 546 and the EL 505 both affects hours and working conditions, therefore, the
ELM § 546 and the EL 505 cannot be changed without Union approval or through
arbitration because doing so would violate Article 19 of the CBA. It is worth noting that
the USPS has not even proposed, much less implemented, any changes to ELM § 546.
The MSPB has already determined that the language in the CBA is an “established
nondiscretionary policy under which the [agency] operates” (Giesler v DOT, 3 M.S.P.B.
367 (1980)), therefore, the USPS has no choice but to adhere to the both the ELM and the
EL 505.

Under the NRP, the USPS has tried to use the deference afforded to agencies when
agencies are interpreting their own rules to insert the terms “necessary work” and
“operationally necessary” into the EL 505 §11 and the ELM § 546.142(a). This new
interpretation of the EL 505 §11 and the ELM § 546.142(a) by the USPS is not entitled
too much deference for two reasons. First, the language in the EL 505 §11 and the ELM
§ 546.142(a) is not ambiguous. In Christensen v. Harris County, 529 US. 576, 590-91
(2000) the Supreme Court noted that the “deference is warranted only when the language
of the regulation is ambiguous.” Jd. at 588. Secondly, an agency cannot change their

interpretation of a regulation from an interpretation the agency has been using for years

because "an agency's interpretation of a statute or regulation that conflicts with a prior

1

Pleading Number C., Submission date : 2011-08-18 23:15:00 Confirmation vunbe: page 10 of 14


current and former employees may be offered a residual vacancy if
they can perform the core duties of the position with only minor
modification. Again, since the core duties are being performed, this
is not considered a modified assignment and the workhours are
charged to the regular operation LDC.

— Modified assignment. If a current or former employee’s
restrictions prohibit accommodation as described in the
categories above, individual tasks must be identified and
combined to develop a modified assignment consistent with the
employee’s medical restrictions. These tasks are usually
subfunctions and may be from multiple positions. The
workhours for employees accommodated in modified
assignments are charged to LDC 69. (emphasis added)

_ Ensure that:

— Any adverse or disruptive influence on the employee is minimized
(see Exhibit 11.7b, Rehabilitation Assignment Priority).

— Contractual obligations are honored (Exhibit 11.7c, Contractual
Obligations for Rehabilitation Positions).

Furthermore, in EL 505, in Exhibit 11.7b (Rehabilitation Assignment Priority) is the
following: “Whenever possible, assign qualified employees to rehabilitation job
assignments duty in their regular craft, during regular tour of duty, and in their regular
work facility” (emphasis in the original text) and “all reasonable efforts must be made to
assign the employee to a rehabilitation job assignment within the employee’s craft and to
keep the hours of the rehabilitation job assignment as close as possible to the employee’s
regular schedule”. In Exhibit 11.7c (Contractual Obligations for Rehabilitation Positions)
is: “However, the USPS guarantees that these employees do not lose pay as a result of the
assignment. Because they are entitled to at least the number of workhours (sic) earned at
the time of injury, it would benefit the USPS to schedule the employee the same number
of hours as his or her former assignment ...” According to the EL 505, if the USPS
cannot find a free-standing assignment for injured workers that provides enough hours to
keep the employee employed for the same number of hours the employee work before

they were injured, the USPS is required to look at existing positions to see if parts of the

4

Pleading Nunbe QE, Submission date : 2011-08-18 23:15:00 Confirmation nude QE page 7 of 14


to offer a given task to a given partially recovered employee as limited
duty work?

Well, the exact wording of the relevant part of the ELM § 546.142(a) is:

Current Employees. When an employee has partially overcome a
compensable disability, the Postal Service must make every effort
toward assigning the employee to limited duty consistent with the
employce’s medically defined work limitation tolerance (see 546.611).
In assigning such limited duty, the Postal Service should minimize any
adverse or disruptive impact on the employee.

Notice that the actual language does not include any qualifiers about the work that the

USPS must find for its injured workers other than the work must be within “the

employee’s medically defined work limitation tolerance". The language in ELM

§ 546.142(a) is clear and unambiguous; the USPS must make “every effort” to find work.

In order for the USPS to make every effort, the USPS must consider any work available.
In the Postal Handbook EL-505, in section 11.7 entitled “Identifying a Modified Job

Assignment”, is the following:

Assist management in identifying a suitable modified job assignment.
Review the injured employee’s medically defined work restrictions.
Each task within the identified assignment must comply with the
employee’s medical limitation.

Consider the following possible placements:

— Employee's current position. If the employee is a current employee
(was never separated from the USPS rolls) and is capable of
performing his or her core duties with only minor modification,
assignment to the current position may be feasible. This type of
accommodation is not considered a modified assignment, and the
workhours are charged to the regular operation LDC.

— Reassignment to an existing position. If a current employee can no
longer perform the core duties of his or her position but is capable
of performing the core duties of another authorized position for
which he or she is qualified, reassignment may be offered. Since
the employee is performing the core duties of the position, the
workhours are charged to the regular operation LDC.

— Residual vacancy. If a vacancy has been posted for bid or
application and there are no successful bidders or applicants, both

3

Pleading Number GE Submission date : 2011-08-18 23:15:00 Confirmation nuro QR page 6 of 14


regular job assignments so that the less strenuous parts of the assignment(s) could be
done by injured employee(s) while the more strenuous work is completed by a different
employee(s) who can do the more strenuous part of the assignments(s). The USPS did not
find work for its injured employees through the goodness of its ice-cold corporate heart.
The reason that the USPS found some type of work for its injured employees for years is
because the USPS knew that finding work for injured USPS employees is required under
the EL 505 §11 and the ELM § 546.142(a).

The USPS cannot unilaterally re-define the ELM § 546.142(a) or the EL 505 to
include the terms “necessary work” or “operationally necessary”. Article 19 of the
Collective Bargaining Agreement (CBA) between the USPS and its various unions, both
in the previous Agreement as well as in the current Agreement, states:

Section 1. General

Those parts of all handbooks, manuals and published regulations of the
Postal Service, that directly relate to wages, hours or working
conditions, as they apply to employees covered by this Agreement, shall
contain nothing that conflicts with this Agreement, and shall be
continued in effect except that the Employer shall have the right to make
changes that are not inconsistent with this Agreement and that are fair,
reasonable, and equitable. This includes, but is not limited to, the Postal
Service Manual and the F-21, Timekeeper’s Instructions. Notice of such
proposed changes that directly relate to wages, hours, or working
conditions will be furnished to the Union at the national level at least
sixty (60) days prior to issuance.

Notice of such proposed changes that directly relate to wages, hours, or
working conditions will be furnished to the Union at the national level at
least sixty (60) days prior to issuance. The Employer shall furnish the
Union with the following information about each proposed change: a
narrative explanation of the purpose and impact on employees and any
documentation concerning the proposed change from the manager(s)
who requested the change addressing its purpose and effect. Proposed
changes will be furnished to the Union by hard copy or, if available, by
electronic file. At the request of the Union, the parties shall meet
concerning such changes. If the Union requests a meeting concerning
proposed changes, the meeting will be attended by manager(s) who are

6
Pleading Number QM — Submission date : 2011-08-18 23:15:00 Confirmation Number Qs, page 9 of 14


Case Title : JAMES C. LATHAM v. UNITED STATES POSTAL SERVICE

Docket Number : DA-0353-10-0408-I-1

Pleading Title : Response to Consolidation Order and Request for Briefing dated 7/25/2011

Filer's Name : Marcella Albright

Filer's Pleading Role : Secondary Appellant

N/A

Pleading Number SAGRMEEIMEM submission date : 2011-08-18 23:16:00 Confirmation Numbe MQM, page 10114


a few, arbitration decision(s). There are a “large number of arbitration decisions” (to
quote the Board), and more are being decided with the same conclusion everyday, and all
of these arbitration decisions are consistent with the EL 505 § 11 and the ELM § 546 and
with each other. Unless here is some serious flaw in each and every one of these
arbitration decisions, the MSPB should interpret the EL 505 § 11 and the ELM § 546 to
require “any work available” in the same vein as the arbitration decisions. Only an
interpretation of “any work available” will insure consistency between the MSPB and the

arbitration decisions.

For Marcella Albright

Thomas Albright

9

Pleading Nurbe Qa Submission date : 2011-08-18 23:18:00 Confirmation nurbe page 12 of 14


interpretation is ‘entitled to considerably less deference’ than a consistently held agency
view ...." Thomas Jefferson Univ., 512 U.S. at 515, 114 S.Ct. 2381. As noted above, for
years, the USPS has used the criteria of “any work available” when the USPS interpreted
the EL 505 §11 and the ELM § 546.142(a). Therefore, the proper interpretation of the EL
505 §11 and the ELM § 546.142(a) is “any work available” and not “necessary work” or
“operationally necessary”.

This interpretation of “any work available” for the EL 505 § 11 and the ELM § 546 is
the basis for the arbitration decisions listed by Marcella Albright in her appeal to the
Board. This interpretation of “any work available” for the EL 505 § 11 and the ELM
§ 546 is the basis for each and every one of the arbitration decisions listed by the Board.
In each and every one of these arbitration decisions, along with many more not listed, the
arbitrators have found that the USPS must assign any available work that an injured
employee can perform to that employee, regardless of whether or not the work is
“necessary” as long as the assigned work doesn’t violate the CBA.

While there is no rule or law that requires that the decisions made by the MSPB and
the decisions made by the arbitrators be consistent, there is the expectation of
consistency. In Local 2578, American Federation of Government Employees v. General
Services Administration 711 F.2d 261 (1983) the United States Court of Appeals, District
of Columbia Circuit, noted that “Congress intended that there be some symmetry
between the arbitration and MSPB processes in order ‘[t]o promote consistency and to
discourage forum shopping.’" (Devine v. White, 697 F.2d at 428). Not only does the
Congress expect consistency, so do the USPS, other Federal agencies, Postal employees,

and every single Federal employee. In this case, we are not talking about a single, or even

8

Pleading Numbe Qa Submission date : 2011-08-18 23:15:00 Confirmation numb QT, page 11 of 14


existing assignments contains subtasks that can be assigned to injured workers so that the
injured worker does not lose any pay or hours. Keep in mind that the EL 505 is a Postal
regulation (39 C.F.R. § 211.2(a)(2) (1988)) and, therefore, the USPS must follow the
rules and regulation contained in EL 505 (Accardi v. Shaughnessy (cited above)). Under
EL 505, the USPS must find any work available for workers who have suffered
compensateable injuries when the employee is at least partially recovered, the work
found must contain the same number of hours, the same start and end times (i.e., same
tour) and same days off as the employee was being assigned before their injury. That is, if
the Office of Workers Compensation Programs (OWCP) finds that a Postal employee
has, through no fault of their own, been injured while working for the USPS, and the
employee is at least partially recovered, the USPS is obligated to find work for the
employee within the employee’s restrictions, during the employee’s original tour, and
without a loss in pay. (Once a Postal work is fully recovered, they are returned to service
under different parts of the ELM)

For years, the USPS has found work for injured Postal employees within the
employee’s restrictions without requiring that the work found being strictly “necessary”.
In fact, on CA-17 forms, the USPS told examining physicians that the USPS “can
accommodate all restriction with the exception of total bedrest(sic)” (see USPS original
filing to the Board in Albright v USPS Tab 4(c) Exhibit 5, Tab 4(d) pp. 1469 and pp
1492). Some of the work found has been work that includes some type of accommodation
to reduce the physical effort required to complete the work. In some cases, the USPS
found work that it wouldn’t necessarily assign to healthy employees because the work

isn’t strictly “necessary”. In some other cases, the USPS would split-up one or more

5

Pleading Number GM, Submission date : 2011-08-18 23:15:00 Confirmation NumberSQQNNM, page 8 of 14


JAMES C. LATHAM, DOCKET NUMBERS

RUBY N. TURNER, DA-0353-10-0408-I-1
ARLEATHER REAVES, SF-0353-10-0329-I-1
CYNTHIA E. LUNDY, AND CH-0353-10-0823-I-1
MARCELLA ALBRIGHT, AT-0353-11-0369-I-1

Appellants, DC-0752-11-0196-I-1

Vv.

UNITED STATES POSTAL SERVICE,

Agency. DATE: August 18, 2011

James A. Penna, Amarillo, Texas, for appellant Latham.
Geraldine Manzo, Oakland, California, for appellant Turner.
JR. Pritchett, Esquire, McCammon, Idaho, for appellant Reaves.
Cynthia E. Lundy, Lithonia, Georgia, pro se.

Thomas William Albright, Garner, North Carolina, for appellant
Albright.

Theresa M. Gegen, Esquire, Dallas, Texas, Joshua T. Klipp, Esquire,
San Francisco, California, Andrew C. Friedman, Esquire, Chicago,
Illinois, Earl L. Cotton, Sr., Esquire, Atlanta, Georgia, and Ayoka
Campbell, Esquire, Charlotte, North Carolina, for the agency.

ANSWER TO THE REQUEST FOR BRIEFING

The Board has asked for briefs to help answer two questions. The first question is:
(1) May a denial of restoration be “arbitrary and capricious” within the
meaning 5 C.F.R. § 353.304(c) solely for being in violation of the
ELM, i.e., 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?
The answer to the first question asked by the Board is emphatically “Yes, the Board can

find that it has jurisdiction under 5 C.F.R. § 353.304(c) solely because the United States

1

Pleading Number : AUMUND — Submission date : 2011-08-18 23:15:00 Confirmation vn page 4 of 14


1, Would you like to enter the text online or upload the file containing the pleading?

See attached pleading text document

2. Does your pleading assert facts that you know from your personal knowledge?

Yes

3. Do you declare, under penalty of perjury, that the facts stated in this pleading are true and correct?

Yes

Pleading Number -<@GGNMP © Submission date : 2011-08-18 23:15:00 Confirmation Number SE page 3 of 14


Table of Contents

Pleading Interview
Uploaded Pleading Text Document

Certificate of Service 13

Pleading Number @3QQSEENREN> © Submission date : 2011-08-18 23:15:00 Confirmation Number QE = page 2 0f 14


Certificate Of Service

e-Appeal has handled service of the assembled pleading to MSPB and the following Parties.

Name & Address

Documents

Method of Service

MSPB: Office of the Clerk of the

Response to Consolidation

e-Appeal / e-Mail

Appellant Representative

Order and Request for
Briefing dated 7/25/2011

Board Order and Request for
Briefing dated 7/25/2011
Thomas William Albright Response to Consolidation e-Appeal / e-Mail

Earl L. Cotton, Sr., Esq.

Response to Consolidation

e-Appeal / e-Mail

Agency Representative

Order and Request for
Briefing dated 7/25/2011

Agency Representative Order and Request for

Briefing dated 7/25/2011
Joshua T. Klipp, Esq. Response to Consolidation e-Appeal / e-Mail
Agency Representative Order and Request for

Briefing dated 7/25/2011
Andrew C. Friedman, Esq. Response to Consolidation e-Appeal / e-Mail
Agency Representative Order and Request for

Briefing dated 7/25/2011
Theresa M. Gegen Response to Consolidation | e-Appeal / e-Mail
Agency Representative Order and Request for

Briefing dated 7/25/2011
Ayoka Campbell Response to Consolidation e-Appeal / e-Mail

William D. Bubb, Esq.
Agency Representative

Response to Consolidation
Order and Request for
Briefing dated 7/25/2011

e-Appeal / e-Mail

I agree to send a printed copy of the electronic pleading with attachments to non-efilers by the
end of next business day, as follows:

eee

Briefing dated 7/25/2011

Name & Address Documents Method of Service
James C. Latham Response to Consolidation |US Postal Mail
Appellant Order and Request for

Pleading Nurbe QD, Submission date : 2011-08-18 23:15:00

Confirmation Nunbe Qi,

page 13 of 14