 United States Court of Appeals for the Federal Circuit

                                      2007-3022


                               DAVID L. GUTKOWSKI,

                                                      Petitioner,

                                           v.


                        UNITED STATES POSTAL SERVICE,

                                                      Respondent.


        Peter G. Loftus, The Loftus Law Firm, P.C., of Waverly, Pennsylvania, argued for
petitioner.

      Ray E. Donahue, Attorney, Appellate Division, United States Postal Service, of
Washington, DC, argued for respondent. On the brief was Lori J. Dym, Chief Counsel.
Also on the brief was Peter D. Keisler, Acting Attorney General, Commercial Litigation
Branch, Civil Division, United States Department of Justice, of Washington, DC,

Appealed from: United States Merit Systems Protection Board
     United States Court of Appeals for the Federal Circuit


                                      2007-3022

                                DAVID L. GUTKOWSKI,

                                                      Petitioner,

                                           v.

                        UNITED STATES POSTAL SERVICE,

                                                      Respondent.

                            _______________________

                              DECIDED: October 23, 2007
                            _______________________


Before DYK and MOORE, Circuit Judges, and COTE, District Judge. *

COTE, District Judge.


      David L. Gutkowski (“Gutkowski”) petitions for review of the final decision of the

Merit Systems Protection Board (“Board”), dismissing his petition for enforcement of a

prior Board order. Gutkowski v. U.S. Postal Serv., PH-0752-01-0218-C-3 (M.S.P.B.

Aug. 3, 2006). We affirm.

                                    BACKGROUND

      Effective March 19, 2001, the United States Postal Service (“agency”) removed

petitioner from his position of Supervisor Level 16, Customer Service, at the Wilkes

Barre Post Office in Pennsylvania. Following a hearing, an administrative judge (“AJ”)


      *
             Honorable Denise Cote, District Judge, United States District Court for the
Southern District of New York, sitting by designation.
in the Board’s Northeastern Regional Office mitigated the removal to a 90-day

suspension and a demotion to the next-highest non-supervisory position, and awarded

back pay and related retroactive benefits. Gutkowski v. U.S. Postal Serv., PH-0752-01-

0218-I-1 (M.S.P.B. Apr. 19, 2002) (the “Initial Decision”). The Initial Decision became

final on August 28, 2003, when the Board denied the agency’s petition for review.

Gutkowski v. U.S. Postal Serv., 94 M.S.P.R. 481 (Table), 2003 MSPB LEXIS 494 (Aug.

28, 2003) (the “Final Board Order”).

      Following the Initial Decision, the agency directed Gutkowski to report for duty on

May 24, 2002, to the position of Distribution Clerk, Part-Time Flexible (“PTF”), PS-5, in

the Tunkhannock Post Office. Gutkowski did not report for duty, requested leave, and

was carried in a leave-without-pay status as of May 24, 2002.

      On October 24, 2003, Gutkowski filed a petition for enforcement of the Final

Board Order, alleging that the agency had failed to meet its obligations under the Final

Board Order by placing him in the PTF PS-5 position. In a Recommendation issued on

February 24, 2004, the AJ concluded that the agency had proved compliance with the

Final Board Order, but directed the agency to submit further evidence regarding its

calculation of back pay and annual leave balance.

      On March 29, 2004, while briefing proceeded on the back pay and annual leave

balance issues, Gutkowski returned to the agency in the PTF PS-5 position assigned to

him following the Initial Decision. On January 12, 2005, Gutkowski filed a Motion to

Accept and Consider New Evidence, in which he (1) contended that the agency failed to

provide him notice of higher-level employment opportunities pursuant to the Final Board

Order, and (2) submitted a declaration from James Zielinski, Clerk Craft Director,




2007-3022                                  2
American Postal Workers Union (APWU), Wilkes Barre Local, regarding the availability

of positions within the agency, including a printout listing seventy-six full-time positions

within the Harrisburg, Pennsylvania District that were available between 2001 and

August 2003.

       On February 2, 2005, the agency assigned Gutkowski to the non-supervisory,

EAS-11 position of Postmaster, Shawanese, Pennsylvania. On February 11, 2005, the

agency responded to Gutkowski’s January 12 motion, informing the Board of his recent

promotion to the EAS-11 position. The agency subsequently submitted, inter alia, a

declaration from Paula McKee, Manager, Labor Relations, Central PA District (formerly

the Harrisburg District), in which she explained that offering Gutkowski any of the

higher-level, non-supervisory positions listed in the Zielinski declaration would have

violated the collective bargaining agreement between the agency and the APWU

(“National Agreement”).

       On April 4, 2006, the Board held that the agency had complied with the

provisions of the Final Board Order concerning Gutkowski’s back pay and annual leave

balance, and further held that the agency had taken the necessary steps to ensure that

his health coverage was continued. Gutkowski v. U.S. Postal Serv., 101 M.S.P.R. 399,

402-03 (2006).     The Board also held, however, that the evidence submitted by

Gutkowski on January 12 constituted new allegations that the agency was in

noncompliance with the Final Board Order for failure to (1) place him in the next highest

non-supervisory position below his former EAS-16 position, and (2) notify him of higher-

graded positions for which he is qualified. The Board forwarded these allegations to the




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Northeastern Regional Office for docketing as a new petition for enforcement. Id. at

406.

       Upon receipt of the Board’s decision, the AJ issued an Acknowledgement Order

directing petitioner and the agency to file written responses regarding the placement

and notification issues identified by the Board. In support of its contention that it had

complied with the Final Board Order, the agency submitted an affidavit from Kathy L.

Gill, Manager of Personnel Service for the Central PA District, who had been

responsible for implementing the Initial Decision. Gill stated, inter alia, that the EAS-11

position to which Gutkowski was ultimately assigned was the “first position I became

aware of that [Gutkowski] was qualified to fill” following his return to the agency in the

PTF PS-5 position in March of 2004.         She conceded that other EAS-11 and -13

positions had been available prior to Gutkowski’s placement in the EAS-11 position, but

averred that those positions were outside of Gutkowski’s commuting area, in which

Gutkowski had stated his desire to remain, and thus had not been considered for him.

She further stated that all of the EAS-15 positions that had been available during that

time required supervision of another agency employee, and were thus not available to

Gutkowski under the terms of the Final Board Order. Gill also detailed the efforts made

to notify Gutkowski of available EAS vacancies before and after his placement in the

EAS-11 position, and stated that Gutkowski had not applied for any of those positions

despite such notification.   Gutkowski responded by referring to the contents of the

previously submitted Zielinski declaration as evidence that other EAS positions could

have been made available to him sooner, and disputed Gill’s representation regarding

his unwillingness to work outside of his commuting area.




2007-3022                                   4
       In a decision on August 3, 2006, the AJ denied Gutkowski’s petition and found

that the agency had complied with the Final Board Order. Gutkowski v. U.S. Postal

Serv., PH-0752-01-0218-C-3 (M.S.P.B. Aug. 3, 2006).           Based on a review of the

Zielinski and McKee declarations, the Gill affidavit, and Gutkowski’s submissions, the

AJ found that the agency had complied with its obligation to provide Gutkowski notice of

EAS vacancies within his district, and that other EAS positions identified by Gutkowski

required supervision of another employee, and thus were not available to him. The AJ

also held that it would not have been “reasonable to require the agency to violate the

National Agreement in seeking to place” Gutkowski following the Final Board Order,

citing Smith v. U.S. Postal Service, 55 M.S.P.R. 348 (1992), and Hicks v. U.S. Postal

Service, 52 M.S.P.R. 561 (1992), and that the agency had therefore acted appropriately

in not assigning him to higher-level, non-supervisory positions that would have placed

the agency in breach of that Agreement.

       Gutkowski did not file a petition for review to the full Board, and the AJ’s decision

became the final decision of the Board on September 7, 2006. This appeal followed.

                                      DISCUSSION

       We will reverse the Board’s decision if it is, inter alia, “arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law . . . [or] unsupported by

substantial evidence.” 5 U.S.C. § 7703(c). On appeal, petitioner does not contest the

Board’s conclusions regarding (1) the adequacy of the agency’s notice of available EAS

positions; (2) the status of other potentially available EAS-11, -13, and -15 positions; or




2007-3022                                    5
(3) petitioner’s preference to work within a fifty-mile commuting distance. 1 Petitioner’s

sole contention is that the AJ erred as a matter of law in holding that the Final Board

Order did not require the agency to assign him to higher-level, non-supervisory

positions if such assignment would have put the agency in breach of the collective

bargaining agreement.

      The Final Board Order directed the agency to place petitioner, who had held an

EAS-16 supervisory position prior to his removal, in “the next highest non-supervisory

position.” Gutkowski, 2003 MSPB LEXIS 494, at *2. As established by the McKee

declaration and not disputed here, following petitioner’s return to the agency in March of

2004, he was assigned to a PTF PS-5 position and not immediately promoted to certain

higher-level, non-supervisory positions that were otherwise available because such

placement would have been in violation of the National Agreement between the agency

and the APWU. Petitioner contends that this represents a failure to enforce the Final

Board Order because, under 5 U.S.C. § 1204(a)(2), the Board has the authority to

“order any Federal agency or employee to comply with any order or decision” it issues,

and therefore the provisions of the Final Board Order regarding petitioner’s employment

superseded any obligation the agency may have had under the relevant collective

bargaining agreement.

      We reject this view. The Board has consistently held that “the provisions of a

collective bargaining agreement have the weight of regulations and agencies must

      1
               Petitioner’s brief makes passing reference to the notice issue, and his
counsel raised this issue at oral argument. To the extent that these statements can be
construed as a challenge to the AJ’s conclusion that, in light of the facts presented in
the Gill affidavit, the agency provided him with notice of all relevant EAS vacancies, we
find that the AJ’s conclusion was supported by substantial evidence and petitioner’s
contention is therefore rejected.


2007-3022                                   6
comply with them.” Smith, 55 M.S.P.R. at 356; see also Hicks, 52 M.S.P.R. at 564;

Poirier v. Dep’t of the Navy, 31 M.S.P.R. 214, 217 n.3 (1986); Giesler v. Dep’t of

Transp., 3 M.S.P.B. 367, 368 (1980); cf. Vitanza v. U.S. Postal Serv., 94 M.S.P.R. 385,

390 (2003). While recognizing that these decisions are not binding upon us, we 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. As highlighted by Hicks, requiring the agency to take

action in violation of such an agreement can adversely affect third-parties and expose

the agency to grievance actions under the agreement. 52 M.S.P.R. at 563.

      We need not decide, however, whether the Board has the authority to order an

assignment that would violate the applicable collective bargaining agreement.         An

agency’s interpretation of its own orders is entitled to significant deference.     See

Ericsson GE Mobile Commc’ns, Inc. v. United States, 60 F.3d 778, 782 (Fed. Cir. 1995).

Here, the Board reasonably construed the term “next highest non-supervisory position”

in the Initial Decision as excluding positions that were unavailable under the collective

bargaining agreement. Gutkowski, PH-0752-01-0218-C-3, slip op. at 8 (M.S.P.B. Aug.

3, 2006). Thus, it was not error for the AJ to find that the agency had complied with the

Final Board Order with respect to the placement of the petitioner following his return to

the agency.

                                    CONCLUSION

      The opinion of the Board in this matter is AFFIRMED.

                                        COSTS

      No costs.




2007-3022                                  7
