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Bolton v. Merit Systems Protection Board

August 31, 1998

DAVID D. BOLTON, PETITIONER,
v.
MERIT SYSTEMS PROTECTION BOARD, RESPONDENT.



Mayer, Chief Judge, Michel, and Schall, Circuit Judges.

The opinion of the court was delivered by: Michel, Circuit Judge

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

This appeal presents yet another attempt by an employee of the United States Postal Service (the "postal service") to come within the narrow exception to the general rule that such employees' appeals from adverse personnel actions are not within the jurisdiction of the Merit Systems Protection Board (the "Board"). With our Disposition of this appeal, several open questions about the outer limits of Board jurisdiction and how relevant criteria are to be adjudicated by the Board in establishing that jurisdiction will be resolved.

David Bolton filed an appeal with the Board challenging his reduction in pay and grade by the postal service. After a hearing, an Administrative Judge (the "AJ") dismissed Bolton's appeal for lack of jurisdiction. See Bolton v. United States Postal Serv., No. AT-0752-96-0156-I-1 (Initial Decision Feb. 26, 1997). The AJ's decision became final on September 8, 1997, when the full Board denied Bolton's petition for review. Because the AJ correctly determined under applicable law that Bolton was neither a supervisor nor a manager, and because Bolton failed to demonstrate that, as a matter of law, he was ineligible for membership in a collective bargaining unit, we affirm the Board's dismissal of his appeal based on its decision that it lacked subject matter jurisdiction.

BACKGROUND

In his twenty-one years of employment with the postal service, Bolton held several positions, including Management Trainee, Superintendent Stations and Branch Operations, and Station Manager. In November 1990, Bolton was assigned to the position of Postal Operations Specialist Senior ("POSS"), a Level 18, Step 9 position and part of a specific Engineering Technical Unit (the "ETU"). There were four other postal service employees also assigned to the ETU who worked in the same building with Bolton, including C. Jerry Burris, a Senior Field Industrial Engineer. Samah HeLal, the supervisor of the ETU, worked in a different building.

The facts of Bolton's specific performance problems in the POSS position are not fully developed in the record, but it appears that he repeatedly refused to follow the instructions of management. On July 10, 1992, Bolton signed a "last chance" settlement agreement to avoid suspension, accepting one final opportunity to perform satisfactorily in the POSS position. Subsequently, on September 23, 1992, he received a notice proposing to reduce him in pay and grade for failure to maintain peaceful relationships with customers, supervisors, peers, and other agency employees. On October 21, 1992, the district manager decided to reduce Bolton to a Part Time Flexible Clerk, Level 5, Step 0, effective October 27, 1992. Bolton appealed this action to the Board over three years later, on November 15, 1995. *fn1

The postal service challenged the Board's jurisdiction to consider Bolton's appeal, asserting that Bolton was not an "employee" with the postal service as defined in 39 U.S.C. § 1005(a)(4)(A) (1994), and that, although Bolton was not a member of a collective bargaining unit, he was not ineligible for such membership as a matter of law. The AJ requested briefing on the jurisdictional question, and on April 17, 1996, conducted a hearing. Bolton, Burris, HeLal, and Larry Jones -- the Field Director of Operations Support and HeLal's immediate supervisor during the relevant time period -- all testified at the hearing. After considering the testimony of these witnesses as well as the documentary evidence presented, the AJ concluded that Bolton had failed to demonstrate, by a preponderance of the evidence, that he was a manager or a supervisor, and therefore dismissed Bolton's appeal as outside the scope of the Board's jurisdiction.

Bolton petitioned the Board for review of the AJ's jurisdictional decision, and the Board denied the petition. A timely appeal was filed with this court, and the case was submitted for decision after oral argument on July 8, 1998. We have jurisdiction under 28 U.S.C. § 1295(a)(9) (1994).

ANALYSIS

The Board's jurisdiction is not plenary; it is strictly defined and confined by statute and regulation. See 5 U.S.C. § 7701(a) (1994); Maddox v. Merit Sys. Protection Bd., 759 F.2d 9, 10 (Fed. Cir. 1985). Our ability to review a Board decision is similarly circumscribed by statute. See 5 U.S.C. § 7703(c) (1994); King v. Department of the Navy, 130 F.3d 1031, 1033 (Fed. Cir. 1997). We review the Board's legal conclusion regarding the scope of its own jurisdiction for correctness and without deference to the Board's determination. See Harants v. United States Postal Serv., 130 F.3d 1466, 1468 (Fed. Cir. 1997); King, 130 F.3d at 1033. Thus, although we may review freely the Board's conclusion that it did not have jurisdiction over Bolton's appeal, we are bound by the AJ's factual determinations unless those findings are not supported by substantial evidence.

As a general matter, the Board does not have jurisdiction over adverse actions taken against employees of the postal service. See 5 U.S.C. § 7511(b)(8) (1994). The Postal Service Employees Appeal Rights Act, Pub. L. No. 100-90, 101 Stat. 673 (1987) (codified as amended at 39 U.S.C. § 1005(a)(4) (1994)), however, authorizes the Board to consider appeals from adverse personnel actions, including reductions in pay or grade, filed by a postal service employee who "is in the position of a supervisor or a management employee in the Postal Service." *fn2 Bolton alleged that his POSS position was either supervisory or managerial within the meaning of the statute. He bore the burden of establishing Board jurisdiction by a preponderance of the evidence. See 5 C.F.R. § 1201.56(a)(2) (1998).

Bolton, on appeal, argues that the AJ improperly ignored or discredited the evidence he presented in support of his contention that he was either a "supervisor" or a "management employee." He further argues that, by concluding he was neither a supervisor nor a manager, the AJ unlawfully created a class of postal service employees that can neither obtain the protection of membership in a collective bargaining unit nor appeal any adverse personnel actions to the Board. We examine each of these arguments in turn.

I.

The postal service is the only federal entity subject to the jurisdiction of the National Labor Relations Board (the "NLRB"). See McCandless v. Merit Sys. Protection Bd., 996 F.2d 1193, 1198 (Fed. Cir. 1993). Because Congress used the same terms to define the scope of jurisdiction for both the NLRB and the Board with respect to all postal service employees, compare 39 U.S.C. § 1202 (1994) (the NLRB "shall not include in any [collective] bargaining unit . . . any management official or supervisor") with 39 U.S.C. § 1005(a)(4)(A), the Board and this court have looked to national labor relations law for guidance with respect to what job authority or function will bring a particular postal service employee within the scope of its jurisdiction rather than the NLRB's. See Waldau v. Merit Sys. Protection Bd., 19 F.3d 1395, 1398 (Fed. Cir. 1994); ...


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