Aug 08 114 02:04p NALC BRANCH1037 8063743293

UNITED STATES OF AMERICA
MERIT |SYSTEMS PROTECTION BOARD

JAMES C. LATHAM,
RUBY N. TURNER, ;
ARLEATHER REAVES, |" DOCKET NUMBERS

CYNTHIA E. LUNDY, and | DA-0353-10-0408-I-1
MARCELLA ALBRIGHT, SF-0353-10-0329-I-1

i

i CH-0353-10-0823-I-1
Appellants, : . AT-0353-11-0369-T-L

i DC-0752-11-0196-F-1
!

Vv.

UNITED STATES POSTAL SERVICE,

Agency. DATE:

}

|
ORDER AMENDIN G BRIEFING SCHDULE

Having considered the motion of the United States Postal Service for an Order

amending the briefing schedule in (hese consolidated appeals and otherwise regulating

dered as follows:

the parties’ briefs, it is herel
1. Opening briefs must be sis no later than August 24, 2011 and reply briefs must be
filed no later than September 13, 2011.

2. Both opening briefs and reply briefs filed by the parties shall not exceed 30 double-
spaced pages.

3. The parties’ reply briefs onay reply to any or all amicus bricfs submitted in response to
the Board*s Notice of Opportunity to File Amicus Briefs ir these consolidated appeals.

4, The time permitted the parties to reply to eny advisory opinion of the Office of
Personnel Management (“OPM”) issued in response to the Board's July 25, 201) letter to

the Director of OPM shall be extended to September 13, 2011 to coincide with the date

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Aug 08 11 02:03p NALC BRANCH1037 * 8063743293 p.s

operating at a profit if they did not have to Prefund the retirement
accounts. The Agency has acted like a bailout party when the
Postmaster General Potter retired; he was given a 5.5 million
dollars retirement package and an incentive bonus Of 223, 000
dollars. The Agency reports and submits to the Government
Accounting Office The savings they are making with NRP.
The Agency is trying to show that by implementing NRP
they are profitable. The Agency does not however report the cost of
implementing the NRP which includes the cost for grievances, EEO’s,
MSPB's and any other forums available. The Agency also does not
report the costs of all remedies for cases that have been previously
settled. The Agency was ordered to return eighty (80) NRP letter
carriers at a cost of nearly 2,000,000 million dollars, only to put
these employees were put off the clock again two (2) weeks later.
We have brought up the Executive Order 13548 to the Agency only to
be told by the Agency Law Department, the Agency does not
have to honor the Executive Order 13548. One attorney said
“it does apply to the Agency”.
All the duties that | performed are still a vital function of the Agency.
ARGUMENT
1. Did the MSPB, lower hearing, error in the denial for not proving the 4"
Element of the Barrett vs. United States Postal Service, (2008 MSPB

19) i.e. “arbitrary and Capricious"?


Aug 08 1102:05p NALC BRANCH1037 8063743293 p.18

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

Box 12094

Pleasanton, CA 94588

Ruby N. Turner

J.R. Pritchett
86 East Merrill Road
McCammon 1D 83250

Andrew C. Friedman
222 Riverside Pl
Suite 1200

Chicago IL 60606

Cynthia E. 25

Earl L. Cotton, Sr., Esq.

3980 Dekalb Technology Pky
Suite 840

Atlanta, GA 30340

Geraldine Manzo
7700 Edgewater Drive
Suite 656

Oakland, CA 94621

Joshua T Klipp, Esq.
P.O. Box 883790
San Francisco, CA 94188

Arleather Reaves ;
Marcella a

Thomas Willam Albright


Aug 08 1! 02:04p NALC BRANCH 1037 8063743293 p.10

UNITED STATES OF AMERICA
MERIT SYSTEMS PROTECTION BOARD

Docket Numbers

James C, Latham DA-0353-10-0408-I-1

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

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

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

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

v.
United States Postal Service,

Agency Date: August.8, 2011

OBJECTION TO AMENDED BRIEFING SCHEDULE
AND DESIGNATION OF ADDITIONAL AGENCY
REPRESENTATIVE IN CONSOLIDATED APPEALS

| am objecting to Williarn D. Bubb’s motion to extend the schedule and
additional Agency Representative for the following reasons:

1. | have waited since August of 2010 (hearing) and September of 2010
(petition


Aug 08 11 02:03p

NALC BRANCH1037 8063743293 p.7

The Agency has abided by these rules, laws, regulations and
contracts for many years before NRP was set up to do harm to

these postal employees.

. The Agency erred in the search for work per the ELM'S 546 in its

own pecking order and the local commuting area of fifty (50) mile
radius of Amarillo TX which includes the following Zip Codes:
79101, 79102, 79103, 79104, 79105, 79106, 79107, 79108, 79109,
79110, 79141, 79114, 79116, 79117, 79118, 79119, 79120, 79121,
79124 and 79159.

. The NRP violated each individuals Dignity, Respect, Integrity,

Humiliated and Belittled each.

. The NRP violated our protection as creditable employees and tax

payers to our troubled economy.

. The NRP violated our skills to perform our duties while not having

to replace us with other employees, i.e. we were not taken off
other jobs to do our essential functions of a complete and separate

positions. These duties have been done since April 27, 2010.

TyiThe Agency and MSPB hearing erred in the NRP guidelines by taking

away injured on the job employees rights by placing several of the

employees off the clock with no work available.

wa


Aug 08 14 02:03p NALC BRANCH1037 8063743293 p.6

2. Did the MSPB, lower hearing, error in that NRP did not violate the
Rehabilitation Act of 1973, ADAAA of 2008, ELM and the National
Bargaining Agreement between NALC and APWU?

The NRP erred in making guidelines that violated its contractual
obligations, ELM obligations, ADAAA, Executive Order 13548,
the EEOC final rule of reasonable accommodations with a
compliance date of May 24, 2011 by placing employees “injured
on the job” off the clock, “no work available” or reduced in
work hours.
A. Qualified Individuals with Disability

1. a physical or mental impairment that substantially limits one
or more major life functions of such individual
Limits one or more major life activities of such individual
2. have a record of such impairment
3. being regarded as having such an impairment

I. “Injured on the job” employees have rights through these rules,

laws, regulations and contracts.


Aug 08 11 02:06p NALC BRANCH1037

Ayoka Campbell, Esq.
2901 Scott Futrell Drive
Charlotte, NC. 28228

Hand delivered:
James A. Penna
3212 Villa Place
Amarillo, TX. 79109

A
anes Yates,
<l) James Latham

8063743293

p.19

August 8, 2011


Aug 08 1102:03p NALC BRANCH 1037 8063743293 po

6, the layoff clause, of the National Bargaining Agreement (NALC and
APWIU) and other unions is the legal, non harming procedure to justify
downsizing.

CONCLUSION

For the foregoing reason, the decision of the MSPB lower hearing should
be reversed. Even for the lack of arguing the laws, a violation of their own
Handbooks and Manuals, it is a violation. There may be no limit to their
number of violations but for one violation it is wrong whether it is one

employee or 120,000 employees nationwide.

Respectfully submitted,

\erenso oboe
James C. Latha Date: August 8, 2011

Appellant & Non-Attorney

Representative


163743293 pt
Aug 08 11.02:02p NALC BRANCH1037 8063

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*aaty ace

ZT RUG
UNITED STATES OF AMERICA ,, ...,.
CLERK OF

MERIT SYSTEMS PROTECTION BOARD

BRIEF AND OBJECTION OF APPEALANT

Docket Numbers

James C, Latham DA-0353-10-0408-I-1
Ruby N. Turner SF-0353-10-0329-I-1
Arleather Reaves CH-0353-10-0823-i-1
Cynthia E. Lundy, and AT-0353-1 1-0369-1-1
Marcella Albright, . DC-0752-11-0196-I-1
Appellants,
v.

United States Postal Service,

Agency Date: August 8, 2011

BRIEF

On appeal from a lower MSPB hearing, for Dallas District, and the Clerk of

the Board requesting Advisory Opinion from OPM (John Berry).



Aug 03 7102:04p NALC BRANCH1037 8063743293 p.12

to their guidelines. The Board has given us ample opportunity to respond
to this advisory opinion issued by OPM.
10. The briefing schedule is already streamlined in that it is a brief and a
reasonable person could be expected to answer the Board in the time
frame given. The Agency already has the advantage over me, as they
have field law department's district wide and now the law department in
Washington DC. |
11. It would be hard for me to really understand the relationship and
theoretical interplay of the documents in weeks. Yet, the one week Mr.
Bubb is-asking for.
12. This extension would only improve the quality and efficiency of the
legal department. My brief stays in laymen terms to the best of my ability.
Setting September 13, 2011 as the date would give the Agency an
unequal opportunity to consicler and reply to all briefs. The Agency should
have a comolete picture of the analytical landscape and fallout prior to
2008.
13. Expanding the page limit of the parties reply briefs to 30 pages would
only produce replications, be overly burdensome and unduly cumbersome
verbiage to briefs and advisory opinion. The Agency should have
reasonably estimated the volume of briefs they created. This is nota
complex case, it just has multiple appellants which should have been
expected.

14, Mr. Bubb had plenty of time to submit this motion and designation of

“10:


Aug 08 11 02:04p NALC BRANCH 1037 8063743293, p.11

for review) for an amicable decision. ‘| am not an attorney, but have
volunteered my time for most of my career fo represent grievant,
appellants and others to the best of my ability.

2. The Agency is notorious for asking for extensions of the time in the gist

for settlement, only to have no settlement offers or counter offers, even
after agreeing to extent.

3. My opening brief will be ready on or before as the clerk of the board

orders as August 17, 2011 and my reply brief on Advisory Opinion will

be as schedule by September 6, 2011.

, 4. The Agency knew when they initiated the NRP guideline, it would
overload all available systems such as MSPB, grievances, EEO’s
and other forums. Most have been successful.

5. | have not received the “Boards Notice of Opportunity to file Amicus
Briefs” in their consolidated appeals.

6. | have no problem with the Boards consolidation rights and is a common
practice with other forums. The time limits are reasonable for attorneys,
appellants and non attorney representatives
7. Improving the quality of the legal presentation to the Board would be in
the interest of Mr. Bubb as he is an attorney
8. The Agency uses form letters and could synthesize the record in this
manner for these five (5) appeals as such. They could internally coordinate
its briefs also.

9. The Agency has been given an express opportunity since 2006 to reply


Aug 08 11 02:03p NALC BRANCH1037 8063743293 ps

2. The injured employees have contributed to the well fare of the Agency
for many years. These employees have been productive employees,
not as implied thru NRP and some supervisors sick, lame and lazy.

3. Working with permanent disabilities at the Agency has been a key way
for the Agency to discriminate and harass injured employees while
while implying this is legal.

B. Injured employees have been the backbone, not the scapegoat, of the
Agency. Although, there has been an employee that did take advantage
of the Situation, | find it hard to believe that employees would literally
go out to inflict injures on themselves to recover 100 % better or end
up with permanent disabilities.

While some court (hearings) are seeking to make the moral and ethical

decisions, other are Finding loop holes i.e. (arbitrary and capricious)

causing harm to individuals with disabilities, who are striving to be
productive members of society.

The injured on the job employees choose to be productive for the Agency

even though some could have medically retired at any point in their career,

The Agency seems to think they are following the FECA laws, the ADAAA,

the Rehabilitation Act and others not mentioned, but are they really going

by these laws?

C. At'this point, no one has adopted the NRP guidelines as a legal

process, to make informed decisions, rulings, etc. NRP is not the soluticn

to the downsizing of the man made economical crisis of the Agency. Article



Aug 08 11 02:03p NALC BRANCH1037 8063743293 p.4

as limited duty work?

CASES
Enclosed is a copy of an OPM letter received by another appellant who has
a pending petition for review. Her name is Kathy Davis, docket number:

DA-0752-10-0393-I-1. 1, James Latham am the representative on this
case.

STATEMENT OF FACTS

Before the early 1980,s the Agency had placed employees “injured on the
job" back to work as soon as possible as partially recovered individuals with
Disabilities and made job offers.

i.e. Limited duty essential function work or permanent rehabilitation job
offers were given after forcing the employee to give up their bid
positions they were hired to perform through the competitive
bidding process. We are qualified individuals as defined
earlier and most are partially recovered and returned

to essential jobs with less demanding physical

requirements than prior to our on the job injury. The Agency
express/blamed its manmade economical crisis on mail
volume while the Postmaster Generals (past and present)

are testifying before Congress that the Agency would be



Aug 08 11 02:05p NALC BRANCH1037 8063743293

the parties’ reply briefs are due, and the parties are free to incorporate their response to

any OPM advisory opinion into their reply briefs.

FOR THE BOARD:

William D. Spencer
Clerk of the Board

Washington, D.C.

p.15


i
{
{

Aug 08 11 02:05p NALC BRANCH1037 8063743293 p.17

Ms, Kathy Davis 2,

~ Further, you may also contact the Department of Labor’s Office of Worker’s Compensation
Program who may advise you of your rights under Worker’s Compensation. You may contact
them at www.dol.govlowep or toll free al {-866-487-2365.

We appreciate the opportunity to respond to your inquiry and hope this information is helpful.

Sinverely,

Doaect os fo

'4osenh S. Kennedy
Deputy Associate Director
Agency. and Veterans Support



Aug 08 11 .02:03p NALC BRANCH1037 8053743293, p.3

TABLE OF AUTHORITIES
ELM’s 546.142
Rehabilitation Act of 1973
ADAAA
Executive Order 13548
Arbitrations Cases
MSPB Cases
Barrett v. United States Postal Service

All have been submitted into record.

STATEMENT OF THE ISSUES

1. May denial of restoration be “arbitrary and capricious’ within the
meaning of 5CFR 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 violated the Agency's

own internal rules?

2. What is the extent of the Agency's restoration obligation under the
3. ELM, i.e. under what circumstances does the ELM require the

4. Agency to offer a given task to a given partially recovered employee


Aug 08 11 02:03p NALC BRANCH1037

TABLE OF CONTENTS

TABLE OF AUTHORITIES
STATEMENT OF ISSUES
CASES

STATEMENT OF FACTS
ARGUMENT
CONCLUSION
OBJECTION

80637432¢3

Pg 1
Pg 1
Pg 2
Pg 2-3
Pg 3-7
Pg 7
Pg 8-11

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Aug 08 11 02:04p NALC BRANCH1037 8063743293 p.13

representation (order dated July 25, 2011) and thru e-file, received on the
same date. He responded on July 29, 2011 with 10 pages.

| also object to Mr. Bubb's simultaneously adding himself to this instant
case as an Agency representative within the same envelope as an “Order
Amending Briefing Schedule” that was not signed by the clerk of the board
and his motion of Amended Briefing Schedule.

For these reasons, | James C. Latham, one of the five (5) appellants

request that this motion not be granted.

Respectfully submitted,

(\
t
James C. Latham Date: August 8, 2011

Appellant & Non-Attorney

Representative

-ll-


Aug 08 11 02:05p NALC BRANCH1037 8053743253 p.16

UNITED STATES OFFICE OF PERSONNEL MANAGEMENT
Washington, DC 20415

Employee Services

Ms. Kathy Davis

Dear Ms. Davis:

This is in response to your August 19, 2010 letter to Director John Berry regarding the U.S.
Postal Service (USPS) allegedly informing you that no work is available to you per the USPS’
National Reassessment Process (NRP). Your letter has been referred to the U.S. Office of
Personnel Management's (OPM) Agency and Veterans Support for review and response. I am
pleased to provide you with the following information.

We regret to hear that you are unable to find employment with the USPS while you are on
Worker’s Compensation. According to your letter, the NRP is a national program administered
by USPS with the intent to target individuals who have on-the-job injuries, disabled veterans,

im and disabled persons over the age of 40. You were informed by USPS’ NRP that no further
work was available.

The USPS is an independent executive agency. OPM does not have jurisdiction over the
agency’s employment or hiring practices. Allegations of employment or hiring violations should
be directed to the USPS Office of Inspector General (OLG). You may access the USPS OIG
Web site at: http://www.uspsoig.gov for more information on how to report alleged acts of
abuse of authority.

e covered by a USPS collective bargaining agreement
(CBA). The CBA documents the agency's obligation to place you in another USPS position.
You ray cuuiact yuu appiicabic idumaa Kesources Ostice on (505) 294-2204 or (877) 477-3273
to clarify what steps the USPS must follow in placing you in another position.

In addition, as a USPS employee, you ar

American People

) World-Class Warktorce to Ses

wewopm.gov