Effective March 19, 2001, USPS removed David Gutkowski from his position of Supervisor Level 16, Customer Service, at the Wilkes Barre Post Office in Pennsylvania. Following a hearing, a Merit System Protection Board administrative judge 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.
At issue in this enforcement proceeding was the Postal Service’s compliance with a final MSPB order that mitigated a removal action to a 90-day suspension and a demotion to the “next-highest non-supervisory position. “Initially, the agency assigned Gutkowski to a Part-Time Flexible PS-5 Distribution Clerk position. The agency later appointed him to the non-supervisory, EAS-11 position of Postmaster, Shawanese, Pennsylvania. In response to Gutkowski’s contention that he should have been considered for a number of identified vacancies, the agency averred that offering him any of these positions would have violated the applicable collective bargaining agreement. In the initial decision that became the Board’s final decision, the AJ ruled 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.”
The Federal Circuit court agreed that an agency is not required, pursuant to the terms of a MSPB order, to assign an employee to a particular position when that assignment would violate the applicable collective bargaining agreement. The court stated that it need not decide, however, whether the Board has the authority to order an assignment that would violate the CBA because an agency’s interpretation of its own orders is entitled to significant deference, and the Board reasonably construed the term “next highest non-supervisory position” as excluding positions that were unavailable under the CBA.”