Does MSPB Order Supersede Union Agreement?

By on October 26, 2007 in Current Events with 0 Comments

A postal supervisor won an order from the Merit Systems Protection Board overturning his removal and mitigating the penalty to  suspension and assignment to a non-supervisory position. He now challenges the agency’s failure to place him in a position that would have required the agency to breach its collective bargaining agreement. He sought an enforcement order, but the Board sided with the agency. Now, the Federal Circuit has affirmed, holding that the Board was correct in its interpretation that its reassignment order does not require the agency to breach its bargaining agreement. (Gutkowski v. United States Postal Service, C.A.F.C. No. 2007-3022, 10/23/07)

Let’s back up and look at the facts as outlined in the court’s decision.

USPS removed Gutkowski from his position as a Supervisor at the Wilkes Barre, Pennsylvania Post Office. The MSPB Administrative Judge mitigated the removal to a 90-day suspension and a demotion to the next-highest non-supervisory position, with retroactive restoration of pay and benefits. (Gutkowski v. U.S. Postal Serv., PH-0752-01-0218-I-1 [M.S.P.B. Apr. 19, 2002; “Initial Decision”]; 94 M.S.P.R. 481, Aug. 28, 2003; “Final Board Order”]) (Opinion, p. 2)

Gutkowski petitioned the Board to enforce its order, arguing that the agency had failed to place him in an acceptable non-supervisory position. The AJ determined that the agency had complied by directing him into a Part Time Flexible Distribution Clerk position. Following this decision, Gutkowski reported for duty, but later asked the Board to accept new evidence that showed other positions that had been open at higher levels that he should have been assigned to. To support his argument, he submitted a declaration signed by an American Postal Workers Union local official that included a printout of 76 full-time jobs that he arguably could have been reassigned into by the agency. (pp. 2-3)

Meanwhile the agency assigned Gutkowski to a non-supervisory position of Postmaster in Shawanese, Pennsylvania, and notified the MSPB. The agency also submitted evidence to the Board that the 76 positions identified by the APWU official were unsuitable because they were supervisory, or outside his commuting area, or would have caused the agency to violate its national level collective bargaining agreement with the APWU. (p. 3)

The Board ruled that the agency had complied with its order. It further held that the agency was not required by its previous order to violate its union agreement. To expect it to do so was unreasonable. Gutkowski’s petition for enforcement was denied. (p. 5)

Gutkowski took his case to the appeals court. He specifically argued that the Board erred by holding that the agency was not required to offer him a position where to do so would violate the union agreement. He contended that the Board’s order superseded the national union agreement. The court disagreed: “We reject this view. …[W]e agree that an agency is not required, pursuant to the terms of a Board order, to assign an employee to a particular position when that assignment would violate the applicable collective bargaining agreement.” (p. 6)

© 2016 Susan McGuire Smith. All rights reserved. This article may not be reproduced without express written consent from Susan McGuire Smith.


About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.