responsibility for and approach to the administration of the portions of FECA under its
jurisdiction.

The WILG Brief takes a contrary and implausible approach. [1 suggests with no
authority that the OWCP regulations require that “positions” under FECA’s restoration
provision must be read to mean “any work within the employee’s medical restrictions
that the employee can perform with or without reasonable accommodation.” WILG Brief
at 23 (emphasis in original). For all the reasons presented in the Postal Service’s opening
brief, it would be analytically difficult and inappropriate as a matter of public policy for
the Board to assert restoration jurisdiction under 5 U.S.C. § 8151 over limited and light
duty assignment provided by employers in conjunction and cooperation with the
OWCP’s efforts to administer FECA. But beyond those considerations, the Board has
already drawn the appropriate distinction between assignments provided under the
@WCP rules and assignments to regular positions in the workforce, and it has done so in
direct contradiction to the notion suggested in the WIIG Brief.

In a substantially identical analytical context, the Board in Anchera v. Office of
Personnel Management, 95 M.S.P.R. 343 (2003), distinguished between assignments that
may meet the suitable work requirements established by OWCP and “positions” within
the meaning of the disability retirement eligibility rules found at 5 U.S.C. § 8337 (a).
Coincidentally, Anchefa involved the Postal Service and required the Board to consider
the effect of the same ELM and Handbook EL-505 provisions at issuc here. In summary,
the Board explained that an employee could only be denied disability retirement if he or

she was offered a reg)

: posilion in the employer’s workforce, repardless of the fact that

the employer had offered an a

signment of some other kind, and even when the other

16
Pleading Number QQ Submission date : 2011-09-13 09:49:07 Confirmation Number: QIN —page 21 of 25


Chevron, U.S.A. v. National Resources Defense Council, 467 U.S. 837, 842-843
(1984)(footnotes omitted). As noted above, the question before the Board is not whether
the Postal Service rules must be followed or may be enforced. They must be followed
and they may be enforced, most notably through the binding grievance procedures in the

Postal Service collective-bargaining agreements. The question before the Board is

whether the Board has jurisdiction under FECA to enforce Postal Service rules providing

assignments to partially recovered employees, or assignments to any employees when the
assignments are to perform work that is other than a regular position, The text and
history of FECA make clear that it does not. Nothing offered by the amici, the
appellants, or OPM does anything to place this conclusion in doubt.
B, THE EMPLOYEE AND LABOR RELATIONS MANUAL

AND HANDBOOK EL-505 HAVE HISTORICALLY BEEN

INCORPORATED INTO THE POSTAL SERVICE'S

COLLECTIVE-BARGAINING AGREEMENTS AND

ENFORCED UNDER THEIR GRIEVANCE PROCEDURES.

THE BOARD SHOULD NOT INVADE THE COLLECTIVE-

BARGAINING RELATIONSHIP AND SHOULD DEFER

ENFORCEMENT OF THE POSTAL SERVICE'S LIMITED

DUTY RULES TO THE GRIEVANCE PROCEDURES AND

EXPERIENCE AND EXPERTISE OF ARBITRATORS.

Several of the amicus briefs emphasize a point contained in the Postal Service's
opening brief. As the APWU Brief explains, “| w]ith respect to the question of the (Postal
Service’s] restoration obligation? under the ELM, it is important for the Board to
recognize that this is fundamentally a contract question, that the ELM and [flandbook
EL-505} cannot conllict with and must be read in harmony with any applicable collective

bargaining agreement, and that the application of the ELM may require the interpretation

and application of more than one collective bargaining agreement.” APWU Brief at 18.

> Of course, the Postal Service disagrees with the characterization of the provisions of the ELM as
“restoration obligations” to the extent it implies that they are enforceable under FECA.

10

Pleading Nunber ‘Submission date ; 2011-09-13 09:49:07 Confirmation Number a page 15 of 25


Arleather Reaves
Appellant

Agency's Reply Brief

US Postal Mail

(Cynthia E. Lundy
Appellant

Agency's Reply Brief

US Postal Mail

J.R. Pritchett
Appellant Representative

Postal Employee Advocates 86 East
Merrill Road

McCammon, ID 83250

USA

Agency's Reply Brief

US Postal Mail

Geraldine Manzo
Appellant Representative

7700 Edgewater Drive Suite 656
Oakland, CA 94621
USA

[Agency's Reply Brief

US Postal Mail

James A. Penna
Appellant Representative

3212 Villa Pl.
Amarillo, TX 79106
USA.

Agency's Reply Brief

US Postal Mail

[Barton Jay Powell
Other

7559 Waterford Drive
Hanover Park, IL 60133

Agency's Reply Brief

US Postal Mail

Pleading Number: 00 Submission date : 2011-09-13 09:49:07

Confirmation Number aa

page 25 of 25


SUMMARY OF ARGUMENT

. There is no dispute about the force or enforceability of the Postal Service's
obligation under its collective-bargaining agreements, the Employee and Labor Relations
Manual (“ELM”) and Handbook EL-505, to search for and provide assignments to ill or
injured workers who may not be fully recovered. But it is the substance of those
obligations, and not their strength, that is relevant to the Board's inquiry. This is so

because those rights transcend the civil service retention rights Congr

provided under

the Federal [:mployees’ Compensation Act (*FECA"). FECA limits retention and

restoration rights to regular_p¢

ions and fully recovered workers. As a result, Postal
Service rules and collective-bargaining agreements that either provide assignments to
FECA claimants who are not fully recovered or provide assignments that are not to
regular positions are not FECA retention or restoration rights that are enforceable by the
Board. Such rights are independent of and supplemental to the rights granted by
Congress under FECA, and, for the majority of the Postal Service’s workers, they are
enforceable through grievance procedures and ultimately by an arbitrator. To the extent
29 CIR. § 353.301(d) is read to grant retention or restoration rights under ECA to less
than fully recovered workers or to assignments other than to regular positions, it exceeds
its statutory authorization and cannot support the Board's exercise of jurisdiction.

‘The principle argument advanced by the amici and the appellants is in essence
that because the provisions of the ELM and Handbook EL-505 are incorporated into the
Postal Service's collective-bargaining agreements and are correspondingly enforceable as

a matter of contract, they equate to restoration obligations under FECA. Put another way,

because they involve the assignment of work to FECA claimants and are mandatory, they

I

Pleading Number SQM, Submission date 2011-09-13 09:49:07 Confirmation Number SQ, page 6 of 25


assignment fundamentally provided the employee with full employment, Ancheta, 95
M.S.P.R. 343, at 12. In Ancheta, the employee was offered a modified assignment
under the provisions of Chapter 11 of Handbook EL-S05, see Postal Service Opening
Brief at 22-23, but the Board explained that a modified position did not comprise a
regular position in the Postal Service’s workforce such that it would disqualify an
employee trom disability retirement. Anchera, 95 M.S.P.R. 343, at 4} 10. In addition, the
Board described the relevant provision of the ELM as follows: “[T]he matter in which
Section 546 of the El.M describes the agency's obligations to employees who have
partially overcome an injury or disability also suggests thal work to which such
employees may be assigned does not necessarily constitute the duties of a particular
‘position’ within the Postal Service.” fd. at 4 11. See also Bracey v. Office of Personnel
Management, 236 F.3d 1356 (Fed, Cir 2001); Suter v. Office of Personnel Management,
88 M.S.P:R. 80, at § 7 (2001) (OWCP determination of suitable work not dispositive of
whether appellant was offered a position within the meaning of disability retirement
rules).

The OWCP rules satisfy a distinct and important FECA objective — to encourage
interim assignments that are comprised of duties. other than a regular position as a means
of assisting the ECA claimant's recovery and reducing workers’ compensation expense.
If the Board were to transform such assignments into positions covered under FECA’s
restoration provisions, it would risk disrupting the OWCP’s processes and the goals of
FECA. And to do so would be inconsistent with the distinctions drawn by the Board in
Ancheta, an analysis that demonstrates that statutory references to positions mean

something other than Limited Duty assignments under the ELM and Handbook EL-505.

7
Pleading Number EEE Submission date : 2011-09-13 09:49:07 Confirmation Numb QIN) page 22 of 25


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 Agency's Reply Brief e-Appeal / e-Mail
Board

Marcella Albright Agency's Reply Brief e-Appeal / e-Mail
Appellant

Thomas William Albright Agency's Reply Brief e-Appeal / e-Mail
Appellant Representative

Earl L. Cotton, Sr., Esq. Agency's Reply Brief e-Appeal / e-Mail
Agency Representative

Joshua T. Klipp, Esq. Agency's Reply Brief e-Appeal / e-Mail
Agency Representative

Andrew C, Friedman, Esq. Agency's Reply Brief e-Appeal / e-Mail
Agency Representative

Theresa M. Gegen Agency's Reply Brief e-Appeal / e-Mail
Agency Representative

Ayoka Campbell Agency's Reply Brief e-Appeal / e-Mail
Agency Representative

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

Name & Address Documents Method of Service
James C. Latham Agency's Reply Brief US Postal Mail
Appellant

Ruby N. Turner Agency's Reply Brief US Postal Mail
Appellant

ee.

Pleading Number ea, Submission date : 2011-09-13 09:49:07 Confirmation Number QU = page 24 of 25


vacant positions whose essential functions can be performed, with or without a
reasonable accommodation. Indeed, reassignment to a vacant position is specifically
mentioned by Congress as an example of a reasonable accommodation. 42 U.S.C. §
12111(9)(b).

However, it is clear that an employer's obligation under the Rehabilitation Act
stops there. An employer’s reasonable accommodation obligation never includes the
creation of a job for a disabled employee, see 29 C.F.R. pl. 1630 app. § 1630.2(0), Equal
Employment Opportunity Commission Enforcement Guidance: Reasonable
Accommodation and Undue Hardship Under the Americans with Disabilities Act 19
(October 17, 2002) [hereinafter EEOC Reasonable Accommodation Guidance}.
Similarly, an employer is never required to remove or “bump” another employee from a
position to make way for a disabled worker, le. See also S. Rep. No. 101-116, at 32
(1989).

Reassignment to a vacant position is not the preferred means of reasonable
accommodation. The EEOC instructs that reassignment as a reasonable accommodation
is a “last resort” and should be considered only alter determining that there is not a
reasonable accommodation that would allow an employce to remain in his or her current
position, EEOC Reasonable Accommodation Guidance 19. Nevertheless, reassignment
must be considered when a reasonable accommodation cannot otherwise be provided by
altering or climinating non-essential functions of the employee’s original position.

These are the requirements of the Rehabilitation Act that have been incorporated
into 5 C.F.R. § 353.301(d). In summary, the Rehabilitation Act only requires employers

to make an effort to accommodate an employee in his or her current position and, if that

14
Pleading Number Cs cela Submission date : 2011-09-13 09:49:07 Confirmation Numbe = page 19 of 25


cited above, jurisdiction to enforce an agency rule was never based on the rule itself and
was never in doubt. In this case, the jurisdiction being considered by the Board would be
based entirely on the existence of Postal Service's rules it would be enforcing under
FECA. In summary, this argument amounts to a contention that the Postal Service can
unilaterally amend FECA by expanding Congress* limited grant of restoration rights and
thereby grant jurisdiction to the Board to enforce those rights.

The Bricf of the National Association of Letter Carriers, AFL-CIO (*NALC
Brief’) makes a similar argument but suffers from similar analytical Maws.? It cites
Kachanis y. Dep't of Treasury, 212 F.3d (289 (Fed. Cir. 2000), for the proposition that
“an agency’s own policy or regulations regarding the filling of vacancies supersedes the
[OPM] regulations to the extent they afford greater rights.” Jd, at 1296. But Kachanis

dealt with a fully recovered employee who was challenging the agency’s failure to assign

him to a regular position under the Reemployment Priority List rules in 5 C.F.R. § 330
and related agency rules. Those circumstances fell within the restoration rights granted
by FECA, and they presented a situation that is reviewable by the Board under an
independent grant of jurisdiction, 5 C.FLR. § 330.209. In addition, the § 330 regulations
permit agencies to substitute placement procedures tor those contained in the regulations
themselves, but retain Board jurisdiction to review compliance with the alternate system.

Indeed, that was what happened in the case cited by the Kachanis court, Struck v. Dep't

of the Navy, 72 M.S.P.R. 153 (1996). So, like the authority cited above, the Board’s

* Several other briefs implicitly or expressly contain a similar contention ~ that the Board has general
authority to enforce agency rules, and that authority supports jurisdiction under 5. C.E.R. § 353,304(c)
based solely on the Postal Service's rules governing partially recovered workers and assignments other than
toregular positions, See Rriefof Amicus George Reyes, Brief of Appellant Arleather Reaves, Brief of
Appellant Marcella Albright.

6

Pleading Numbe QR, Submission date : 2011-09-13 09:48:07 Confirmation Nunbe QM page 11 of 25


ARGUME!

A. THE BOARD LACKS JURISDICTION
UNDER FECA TO ENFORCE AGENCY
RULES THAT PROVIDE ASSIGMENTS TO
PARTIALLY RECOVERED WORKERS OR
THAT PROVIDE ASSIGNMENTS OTHER
THAN TO REGULAR POSITIONS

The issue raised by the Board in these cases concemis its juri

ion under FECA.
lt has asked the parties, the amici, and the Office of Personnel Management to address
whether, in the case of partially recovered employees, the Board has “jurisdiction over a
restoration appeal under [5 C.I'.R. § 353,304(c) to enforce 5 C.F.R. § 353.301(d)] merely
on the basis that the denial ef restoration violated the agency’s own internal rules?”
Consolidation Order 4. The Postal Service “internal rules” at issue are the Employee and
Labor Relations Manual (“ELM”), Handbook EL-505, and the Postal Service collective-
bargaining agreements that incorporate them. As the Postal Service explained in its

opening brief, and as every other brief agrees, these rules grant rights to partially
iB y 6 8 8

ts and rights to assignments that are other than seeular positions.

The Postal Service demonstrated in its opening brief that 5 C.F.R. § 353.301 (d)
on its face exceeds its statutory authorization because it purports to grant restoration
tights under FECA to partially recovered workers when FECA grants restoration rights
only to fully recovered workers. What’s more, even if FECA did grant restoration rights
to partially recovered workers, it is clear that the restoration rights granted by FECA to
ny worker are limited to rewular positions. To the extent 5 C.F.R. § 353.301(d) is read
to apply to other than lully recovered workers, to assignments other than to regular
positions, or to both, it is inconsistent with FECA and cannot support Board jurisdiction.

As a result, and for the reasons cxplaincd in the Postal Service’s opening brief, the

3

Pleading Nunbe Qi, Submission date : 2011-09-13 09:49:07 Confirmation | page 8 of 25


are transformed into a FECA-based restoration right. As demonstrated here, those
arguments miss the mark. The question before the Board is not whether the Postal
Service rules must be followed or are enforceable. ‘They must be and they are, as
evidenced by the arbitration decisions referenced in the Board’s Consolidation Order.
The Board is concerned with whether it has jurisdiction to enforce the Postal Service’s
rules under FECA. |t does not.

To the extent the appellants, the amici, or the Office of Personnel Management
allempt to argue that the Board has jurisdiction over the Postal Service, their arguments
are both unsupported by any authority and ignore the fundamental issue before the Board
~ that exercising jurisdiction over the Postal Service rules under consideration is directly
inconsistent with the Board’s statutory authority under FECA.

“Even if the Board had jurisdiction over assignments to partially recovered
workers, assignments to other than regular positions, or both, it would be imprudent and
unnecessary. to disturb the administration and enforcement of such assignments because
the OWCP and the Postal Service's grievance and arbitration mechanisms are effectively

and efficiently enforcing them today.

2

Pleading Number QB: date : 2011-09-13 09:49:07 Confirmation Numb SMM) page 7 of 25


is not possible, search for regular positions that the employee can perform. The Board’s
authority recognizes these limitations. See, eg, Sanchez v. US. Postal Service, 114
M.S.P.R. 345, 12 (2010). Indeed, by incorporating these Rehabilitation Act principles
into 5 C.F.R. § 353.30I{d), OPM was acting consistently with FECA’s restriction of
restoration rights to regular positions.

The WILC Brief suggests something to the contrary by contending that federal
employers’ reasonable accommodation obligation under the Rehabilitation Act requires
thal they afford opportunities to assiements. not positions, WILC Brief at 11 (emphasis
in original), and that “[{t]he only statutory limitation on the employer's obligation to
provide a reasonable accommodation is undue hardship.” /d. (footnote omitted).
Presumably, the WILC Brief advances this contention te bolster its argument that
assignments to other than regular positions are covered by 5 C.F.R. § 353.301(d). But the
law is clearly against the WILC on this point. ‘The Rehabilitation Act standards that have
been incorporated into 5 C.F.R. § 353.301(d) only impose a requirement (o accommodate
employees in their current position or in another regular position.

D. THE OWCP RULES GOVERNING SUITABLE WORK
AND GENERAL REHABILITATION EFFORTS ARE
ANALYTICALLY INDEPENDENT OF FECA
RESTORATION RIGHTS. THE BOARD SITOULD
NOT EXPAND ITS JURISDICTION IN A WAY THAT
WOULD INVADE THE PROVINCE OF THE OWCP
AND DISRUPT AN ESSENTIAL FUNCTION OF FECA.

In its opening brief, the Postal Service outlined OWCP’s rules concerning suitable
work and its efforts to encourage interim assignments to light or limited duty, see Postal

Service Opening Brief at 16-17, and urged the Board not to exercise jurisdiction over

FECA restoration rights under 5 U.S.C. § 8151 in a way that might collide with OWCP’s

15
Pleading Number QE Submission date : 2011-09-13 09:49:07 Confirmation Numb AEM page 20 of 25


Board jurisdiction. In each case cited in the NPMHU Briel, jurisdiction was not an issue

and was not itself based on the agency regulation being enforced by the Board. In

Campbell v. United States Postal Service, 75 M.S.P.R. 273 (1977), the Board considered

Postal Service back pay regulations to determine damages arising out of an improper

demotion. Its jurisdiction was based on the general appellate jurisdiction conlerred by
chapter 75 of title 5. In Giesler vy. Department of Transportation, 3 M.S.P.R. 277 (1980),
the Board considered Federal Aviation Administration collectively-bargained discipline
procedures to determine whether harmful procedural ervor was committed under $ U.S.C.
§ 7701 (c)(2). Its jurisdiction was based on the general appellate jurisdiction conferred
by chapter 75 of title 5. In Miller v United States Postal Service, 105 M.S.P.R. 89
(2007), the Board considered Postal Service military leave rules to determine if they were
applied in a manner consistent with the Uniformed Services Fmployment and
Reemployment Righis Act (SUSERRA”). Its jurisdiction was based on its general
authority. to consider allegations of USERRA violations granted by 38 U.S.C. § 4324.
And in Ricketts v, United States Postal Service, 94 M.S.P.R. 257 (2003), the Board
considered Postal Service collectively-bargained rules to determine the appropriateness
of back pay in an appeal of an indefinite suspension without pay. Its jurisdiction was
based on chapter 75 of title 5.

Assigned their true significance, these cases are unhelpful to the resolution of the
instant question. When the Board has jurisdiction, it can generally examine agency
conduct, particularly when the Board's jurisdiction is based on chapter 75, which gives
the Board plenary authority to review the overall circumstances of the agency action. Cf.

Bodus v. Department of the Air Force. 82 M.S.P.R. 508. at {§ 14 -16 (1999). In the cases

5
Pleading Number Ek, kien Submission date : 2011-09-13 09:49:07 Confirmation Number page 10 of 25


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

Docket Number : DA-0353-10-0408-I-1
Pleading Title : Agency's Reply Brief
Filer's Name : William D, Bubb, Esq.

Filer's Pleading Role : Agency Representative

N/A

Pleading Nun Submission date : 2011-09-13 09:49:07

Confirmation Number page 1 of 25

a


FECA at 5 U.S.C. § 8151(b) — to describe the rights granted by the Postal Service rules
that provide Limited Duty assignments. These features of the OPM opinion confuse, not
clarify, the jurisdictional issues under consideration by the Board.

OPM’s opinion cites three cases it found instructive, but these cases merely stand
for the general proposition that the federal courts have jurisdiction to require agencies to
follow their own procedural rules, even when the agencies were not compelled to adopt
them. See Service v. Dulles, 354 U.S. 363, 373-76 (1957); Vitarelli v. Seaton, 359 US.
535, 545 (1959); Lopez v. Federal Aviation Administration, 318 F.3d 242, 246-47 (B.C.
Cir. 2003). The third case cited by OPM, Lopez v. Federal Aviation Administration,
actually discusses Service v. Dulles and Vitarelli v. Seaton and confinns this analysis.
The court intended to Mesh out the principle that “federal agencies are required to ‘follow
their ewn rules, even gratuitous procedural rules that limit otherwise discretionary
actions.” Lopez, 318 I'.3d at 246 (citing Steenholdt v. Federal Aviation Administration,
314 F.3d 633, 639). As with the theories advanced by the amici, apart from the
questionable basis for OPM’s assertion, it is a red herring. The Board is not focused on
whether the Postal Service must follow it regulations or whether they are enforceable.
The issue here is whether certain Postal Service regulations provide rights under FECA.
that can be enforced by the Board.

The OPM opinion notes that OPM’s interpretation of its own rules is entitled to
substantial deference, citing Thomas Jefferson University v. Shalala, 512 U.S. 504, 512
(1994). Shalala discussed a situation where deference was paid to an administrative
interpretation of a regulation in the face of conflicting views of the meaning of the

regulation itself. Here, the issue is whether OPM's FECA restoration regulations, either

8

Pleading Nunber Submission date : 2011-09-13 09:49:07 Confirmation Number QM page 13 of 25


jurisdiction in Kachanis was not at issue, and was not based on the very regulations it
sought to enforce.

The Board has also received an opinion from the Office of Personnel
Management ("OPM") which generally concludes that an agency would violate 5 C.F.R.

§ 353.301(d) “if it failed to comply with agency’s own internal rules in connection with

denying restoration to a partially recovered individual.” OPM Advisory Opinion |
(emphasis added), With respect, OPM's opinion is simply unreliable and unhelpful to the
Board’s consideration of its jurisdiction under § C.F.R. § 353.304 (c).

OPM’s opinion is most deficient because: a) it assumes that 5 C.F.R. §
353.301(d)’s coverage of partially recovered employees is authorized by FECA, and; b) it
ignores the circumstances that are at the heart of the Board’s jurisdictional concem —
whether an agency rule that provides “medically suitable work to partially recovered

employees regar

_of a

complete and separate position” is enforceable by the Board as a restoration right under
FECA. Consolidation Order 3 (emphasis added). OPM’s opinion claims that $C.F.R. §
353.301(d) was adopted under its “authority” under FECA, 5 U.S.C. § 8151(b), but it
does nothing to explain or rationalize how it could have adopted a regulation granting
FECA restoration rights to partially recovered employees, a right that is not authorized by
FECA itself, which limits restoration rights to fully recovered employegs. And it fails to
address how a Limited Duty assignment under the Postal Service’ rules (by definition
work that is not a regular position) fits within /ECA’s limitation to assignments to

regular positions. Indeed, on the latter point, the OPM opinion creates confusion because

it uses the term “restoration rights” — presumably a reference to the rights granted by

7

Pleading Number Es asl ‘Submission date : 2011-09-13 09:49:07 Confirmation Number QE page 12 of 25


benefits provided in the Postal Service's internal rules under consideration in this case
transcend the restoration rights guaranteed by FECA and are not enforceable by the
Board.

The briefs of the amici and the appellants do not directly address 5 C.F.R. §
353.301 (d)’s ultra vires nature and resulting jurisdictional flaws. Instead, they exhort the
Board to enforce the Postal Service’s rules under the mantle of FECA based on two
general principles:

* An agency must follow its own rules; and

¢ The Board's precedent establishes ils authority to enforce agency rules.
The first principle is axiomatic and unassailable in general, but it is unrelated to the issue
here ~ whether the Board has jurisdiction under FECA to enforce the Postal Service’s
tules concerning the assignment of partially recovered workers to other than regular
positions. ' The second principle is an incomplete expression of the authority cited in its
support. What the various cited authorities actually reveal is that the Board will enforce
agency rules when their enforcement is ancillary to. the fundamental claim over which the

Board's jurisdiction independently exists. Mere, the Board’s jurisdiction dep

This mischaracterization of the Board precedent is most prominently displayed
in the Brief of the National Postal Mail Handlers Union (*“NPMUHU Brief"). {In addition
to overlooking the fundamental jurisdictional defects in 5 C.F.R. §§ 353.301(d) &

.303(c), the NPMHIU Brief embellishes the authority it cites to suggest a precedent tor

* Several briefs devote substantial effort to describing the relevant provisions of the ELM, tlandbook EL-
505, and the Postal Service collective-bargaining agreements. By and large, they restate the description
contained in the Postal Service's opening brief, There is no material dispute concerning the content of
these documents and in particular what the Postal Service has said it willdo. The issue is whether they
comprise rights under FECA that the Board has jurisdiction to enforce.

4

Pleading Nunber C, Submission date : 2011-09-13 09:49:07 Confirmation Nunbe page 9 of 25


CONCLUSION

The Postal Service maintains substantial policies — incorporated into, and
enforceable under, its collective-bargaining agreements — that provide important benefits
to its workers with job-related illnesses or injuries. But their fundamental nature ~
providing assignments to partially recovered workers and assignments thal are to other
than regular ‘positions ~ exclude them from the FECA restoration rights delineated by
Congress in 5 U.S.C. § 8151. Asa result, they are beyond the reach of OPM’s restoration
regulations and cannot confer jurisdiction on the Board under FECA.

Even if the Board did have jurisdiction under FECA to enforce the Postal
Service’s rules, the interplay of the Postal Service’s rules with OWCP’s administration of
FECA and their incorporation into the Postal Service’s collective-bargaining agreements
strongly counsel in favor of deferring enforcement to the Postal Service’s grievance and
arbitration mechanisms.

Respectfully submitted,

Mh Lae
William D. Bubb
Ageucy Representative

18

Pleading Number QIN = Submission date : 2011-09-13 09:49:07 Confirmation Number QM page 23 of 25


Table of Contents

SUMMARY OF ARGUMENT: |
ARGUMENT, 3

A. THE BOARD LACKS JURISDICTION 3
UNDER FECA TO ENFORCE AGENCY
RULES THAT PROVIDE ASSIGMENTS TO
PARTIALLY RECOVERED WORKERS OR
THAT PROVIDE ASSIGNMENTS OTHER
THAN TO REGULAR POSITIONS.

B. THE EMPLOYEE AND LABOR RELATIONS MANUAL 10
AND HANDBOOK EL-505 HAVE HISTORICALLY BEEN
INCORPORATED INTO THE POSTAL SERVICE'S
COLLECTIVE-BARGAINING AGREEMENTS AND
ENFORCED UNDER TIIEIR GRIEVANCE PROCEDURES.

THE BOARD SHOULD NOT INVADE THE COLLECTIVE-
BARGAINING RELATIONSHIP AND SHOULD DEFER
ENFORCEMENT OF THE POSTAL SERVICE'S LIMITED
DUTY RULES TO THE GRIEVANCE PROCEDURES AND
EXPERIENCE AND EXPERTISE OF ARBITRATORS.

C. 5S C.PR. §353.301(d)’s REFERENCE TO THE 12
THE REHABILITATION ACT SUPPORTS AN
INTREPRETATION THAT § 353.301(d) ONLY
REQUIRES PLACEMENT IN REGULAR POSITIONS.
THE AMICI’S REFERENCES TO THE
REHABILITATION ACT ARE EITHER MISLEADING
OR IRRELEVANT TO THE ISSUE BEFORE
THE BOARD.

D. THE OWCP RULES GOVERNING SUITABLE WORK 15
AND GENERAL REHABILITATION EFFORTS ARE
ANALYTICALLY INDEPENDENT OF FECA
RESTORATION RIGHTS. THE BOARD SHOULD
NOT EXPAND ITS JURISDICTION IN A WAY THAT
WOULD INVADE THE PROVINCE OF THE OWCP
AND DISRUPT AN ESSENTIAL FUNCTION OF FECA.

CONCLUSION 18

Pleading Number SQM. Submission date : 2011-09-13 09:49:07 Confirmation Number: a, page 5 of 25


The APWU, NALC, and NPMHU make clear that the interpretation and enforcement of
the ELM and Handbook EL-505 have historically been in the efficient and forceful hands
of the parties’ collective-bargaining relationships and respective grievance procedures.
Indeed, beyond the fact that the ELM is incorporated into the collective-bargaining
agreements, the amici point out that the current version of the ELM was influenced
bilaterally by a grievance settlement between the Postal Service and the NALC. See, ¢.g.,
NPMHU Brief at 8. The rights of Postal Service workers to Limited Duty assignments
provided under the El.M and Handbook EL.-505 have been crafied and are being
enforced in the context where enforcement makes the most sense ~ the parties’ collective-
bargaining relationships.

Postal Service labor relations are unique in the federal scctor in that they are
subject to the National Labor Relations Act (“NLRA”) and the federal labor policy it
embodies. See 39 U.S.C. § 1209(a). Under the NLRA,

[aJrbitration as a means of resolving labor disputes has gained
widespread acceptance over the years and now occupies a
respected and firmly established place in Federal labor policy. The
reason for its success is the underlying conviction that the parties
to a collective-bargaining agreement are in the best position (o
resolve, with the help of a ncutral third party if necessary, disputes
concerning the correct interpretation of their contract.
United Technologies Corporation. 268 N.L.R.B. 557, 558 (1984). In recognition of this
federal preference for arbitration, the National Labor Relations Board established criteria
for deferring the resolution of statutory rights under the NLRA to a grievance procedure.
The seminal case is Collyer Insulated Wire, 192 N.L.R.B. 837 (1971).
The Collyer majority articulated several factors favoring deferral:
The dispute arose within the confines of a tong and productive

collective-bargaining relationship; there was no claim of employer
animosity to the employees’ exercise of protected rights; the

1}

Pleading Number Va, ‘Submission date : 2011-09-13 09:49:07 Confirmation Number: (a page 16 of 25


synonymous with the Americans with Disabilities Act (*ADA”) -- which prohibits
employment discrimination based on disability in the balance of the nation’s workforce —
Congress in 1990 unified the federal prohibition against employment discrimination
based on disability by declaring that the “standards used to determine whether [the
Rehabilitation Act] has been violated . . . shall be the standards applied under . . . the
Americans with Disabilities Act.” 29 U.S.C. § 79I(g). As a result, the Rehabilitation
Act relics on the ADA to inform its requirements.

One form of prohibited employment discrimination is the failure to reasonably
accommodate an employee’s disability, 42 U.S.C. § 12112(b)(5). When a disabled
employee cannot perform his or her job, this feature of the ADA (and, therefore, the
Rehabilitation Act) requires an employer to consider restructuring the job so that the
employee can perform it. This requires consideration of changes to or elimination of job
functions, but only those functions that are non-“essential.”” The obligation to reasonably
accommodate is limited in this way because the right to be reasonably accommodated is
enjoyed only by “qualified individuals,” which means employees who “with or without
reasonable accommodation, can perlorm the essential functions of the employment
position” in question. 42 U.S.C. § 12111(8) (emphasis added). In most cases, an
employer's obligation to reasonably accommodate a disability can be accomplished by
altering a disabled employee’s current position.

But when there is no reasonable accommodation that will permit an employee to
perform the essential functions of his or her current position, there is another possibility
an employer is obligated to consider. An employer must consider reassignment to vacant

positions with respect to which the employee meets the “qualified individual” standard ~

13
Pleading Number QQEEEEER, Submission date : 2011-00-13 09:49:07 Confirmation Number QM page 18 of 25


JAMES:C. LATHAM,
RUBY N. TURNER,

UNITED STATES:OF AMERICA

ARLEATHER REAVES,
CYNTHIA E. LUNDY, and
MARCELLA ALBRIGHT,

Appellants,

ve

UNITED STATES POSTAL SERVICE,

Agency.

September 13, 2011

Pleading Number aa,

AGENCY'S REPLY

Submission date : 2011-09-13 09:49:07

MERIT SYSTEMS PROTECTION BOARD

DOCKET NUMBERS
IA-0353-10-0408-I-1
SF-0353-10-0329-I-1

CH-0353-10-0823-I-1
AT-0353-11-0369-I-1
DC-0752-11-0196-I-1

BRIEF

Forthe Agency:

William D. Bubb
Ayoka Campbell
Earl L. Cotton, Sr.
Andrew C, Friedman
Theresa M. Gegen
Joshua T. Klipp

United States Postal Service
475 L’ Enfant Plaza, SW
Washington, DC 20260-1150
202.268.3076 (telephone)
202.268.5402 (facsimile)

Confirmation Number i.

page 4 of 25


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

See attached pleading text document

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

No

Pleading Number I, ‘Submission date : 2011-09-13 09:49:07 Confirmation Number, page 3 of25


on their face or as interpreted, exceed the statutory authority on which they are based to
the extent they grant FECA restoration rights to partially recovered employees or to
assignments other than to regular positions. No interpretation by OPM is necessary on
the former point. ‘The regulations on their face apply to partially recovered employees, a
fact that makes them unenforceable because they exceed FECA's own restoration
provisions. And assuming OPM has opined that assignments other than to regular
positions under Postal Service rules amount to restoration rights under FECA, that
interpretation renders the regulation similarly unenforceable because FECA does not
authorize a right to any assignment other than to a regular position.

The Board is, of course, the final arbiter of its own jurisdiction. In this case, and
given the glaring inconsistencies between FECA and the OPM regulations concerning
partially recovered employees and assignments other than to regular positions, the Board
must look to the statute. As noted in the Postal Service’s opening brief, the Board must
presume that Congress said what it meant and meant what it said in 5 U.S.C, § 8151(b).
See BedRoc Limited, LLC v. United States. 541 U.S. 176, 183 (2004).

When a court reviews an agency's construction of the
statute which it administers, it is confronted with two questions.
First, always, is the question whether Congress has directly spoken
fo the precise question at issue. If the intent of Congress is clear,
that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of
Congress. If, however, the court determines Congress has not
directly addressed the precise question at issue, the court does not
simply impose its own construction on the statute, as would be
necessary in the absence of an administrative interpretation.
Rather, if the statute is silent or ambiguous with respect to the

specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.

9

Pleading Nunber ‘Submission date : 2011-09-13 09:49:07 Confirmation Number page 14 of 25


parties’ contract provided for arbitration in a very broad range of
disputes; the arbitration clause clearly encompassed the dispute at
issue; the employer had asserted its willingness to utilize
arbitration to resolve the dispute; and the dispule was eminently
well suited to resolution by arbitration.

United Technelegies, 268 N.L.R.B al 558.

Even if the Board had jurisdiction under FECA to enforce the ELM and
Handbook EL-505, it should adopt a Cellyer-like policy of deferral to the grievance
machinery in the Postal Service’s collective-bargaining agreements. Each of the Ce//yer
criteria is present with respect to the relevant provision of the ELM and Handbook EL-
505. In any grievance, it would necessarily be decided whether an employee was entitled
to a Limited Duty assignment under the ELM and Handbook EL-505. That result would
be conclusive on the question of whether the Postal Service acted arbitrarily or
capriciously. It will either be found to have acted appropriately, or it will be ordered to
provide an assignment. Indeed, as the Board's Consolidation Order discloses, there is
already a substantial track record of successful enforcement of the Postal Service rules
through the grievance procedure and arbitration.

C. 5S C.APR. § 353.301 (d)’s REFERENCE TO THE
THE REHABILITATION ACT SUPPORTS AN
INTREPRETATION THAT § 353.301(d) ONLY
REQUIRES PLACEMENT IN REGULAR POSITIONS.
THE AMICI’S REFERENCES TO THE
REHABILITATION ACT ARE EITHER MISLEADING
ORIRRELEVANT TO THE ISSUES BEFORE
THE BOARD.

The brief of the Workers’ Injury Law & Advocacy Group (“WILG Brief)
comments on the Rehabilitation Act in ways that require contradiction or clarification.

The Rehabilitation Act prohibits federal sector employment discrimination based

on disability. Although its history and content are not temporally or substantially

12
Pleading Number QM, Submission date : 2011-09-19 09:49:07 Confirmation Numbe QIN page 17 of 25