dissenting.
In this eighth action occupying over six years during which Mr. Carrier has sought access to the appellate path to which his position commits him, this court now decides, in essence, that Mr. Carrier has no path of appeal. That can not be correct, for by statute he is authorized, depending on his position with the Postal Service, either to appeal to the Merit Systems Protection Board or to seek relief through a collective bargaining procedure. The panel majority has imposed an unreasonable and incorrect burden, and has defeated the purposes, as applied to Postal Service employees, of both the MSPB and the NLRB statutes.
A
The path of appeal by Postal Service employees is established by statute. It is neither discretionary nor flexible. Before the Postal Reorganization Act of 1970(PRA), 39 U.S.C. § 101 et seq., non-bargaining employees of the Postal Service could appeal an adverse personnel action to the United States Civil Service Commission. See H.R. Rep. 99-400, at 2 (1985). However, after the Postal Service reorganization and before enactment of the Postal Employees Appeal Rights Act (PEARA) of 1987, Pub.L. No. 100-90, 101 Stat. 673, codified at 39 U.S.C. § 1005, only Postal employees who were veterans (ie., “preference eligibles”) or who were covered by *1381collective bargaining agreements that provided for arbitration could appeal adverse personnel actions to the MSPB. Specifically, before enactment of the PEARA, preference eligibles had the right to appeal adverse personnel actions to the MSPB, but supervisors, management, and other nonbargaining unit employees who were not veterans were limited to the Postal Service’s internal grievance procedure — a limitation that Congress found to be flawed. See id. at 2, 4. In short, prior to the PEARA, supervisors and management employees who were veterans had the right to appeal to the MSPB while their non-veteran counterparts did not. See id. at 2-3. The PEARA was designed to remedy this inequity.
Congressman Dymally, the principal sponsor of the legislation, explained that the PEARA was designed to cover only employees who did not have a choice as to whether to join a collective bargaining unit, that is, those employees “who do not have the right, under Title 39, U.S.C., to join a bargaining unit.” Postal Employees Appeal Rights: Hearing on S. 54-1 Before the Subcomm. on Federal Services, Post Office, and Civil Service of the Comm, on Governmental Affairs, United States Senate, 100th Cong. 79-81 (1987) (emphasis in original). Congressman Dy-mally recognized that some employees eligible to join a bargaining unit could choose not to do so, and explained that if an employee did not have the right to choose to join a collective bargaining unit, then under the PEARA that employee could appeal to the MSPB. Id. at 80-81.
Whether a Postal Service employee is in a nonbargaining position is determined in accordance with the rules of the National Labor Relations Board (NLRB), a relationship that flowed from the independent status of the Postal Service. See 39 U.S.C. § 1202; McCandless v. Merit Sys. Protection Bd., 996 F.2d 1193, 1198 (Fed.Cir.1993). Pursuant to the PRA, the NLRB rules control the determination of which Postal Service employees are entitled to participate in collective bargaining and the grievance procedures thereby established. The NLRB rules exclude from access to ' collective bargaining certain classes of employees, including supervisors, management, and confidential employees. See 39 U.S.C.§ 1202. These excluded employees do not have access to the grievance procedures accorded to bargaining positions. However, the PEARA authorizes these employees to appeal an adverse employment action to the MSPB. See 39 U.S.C. § 1005(a)(4) (A)(ii). This is the appeal right that Mr. Carrier has been attempting to pursue.
B
The PRA and the PEARA together created a system whereby employees in bargaining positions may file grievances under the jurisdiction of the NLRB, while supervisors, managers, and confidential employees^ — who are ineligible for membership in bargaining units — have the right of appeal to the MSPB. McCandless, 996 F.2d at 1201-02. Thus the path whereby Postal Service employees may contest an adverse action depends on whether they are employed in a position entitled to or excluded from membership in a collective bargaining unit. Id.
Because of the NLRB’s authority in Postal Service labor relations, the MSPB has recognized that in determining for appeal purposes whether a postal employee is a supervisor, manager, or confidential employee, the law of the NLRB shall govern. See Anmuth v. United States Postal Serv., 45 M.S.P.R. 656, 660 (1990), aff'd, 932 F.2d 980, 1991 WL 46520 (Fed.Cir.1991) (Table); Benifield v. United States Postal Serv., 40 M.S.P.R. 50, 52 (1989). However, the Federal Circuit has explained that “MSPB reliance on NLRB precedent may not be rote, but must be *1382informed by an interpretation of the PRA and the PE ARA....” McCandless, 996 F.2d at 1199. In particular, NLRB precedent is relevant only when the National Labor Relations Act is consistent with the PRA. Id, (citing Nat’l Labor Relations Bd. v. United States Postal Serv., 833 F.2d 1195, 1198 (6th Cir.1987)).
The McCandless decision illustrates this relationship. The Postal Service had stipulated that Ms. McCandless was a confidential employee and that she could not join a bargaining unit, but the MSPB refused to accept that the Postal Service could determine the Board’s jurisdiction. The Federal Circuit rejected the MSPB position:
The Postal Service and the NLRB are not strangers to the statutory scheme that defines the jurisdiction of the MSPB. The MSPB inquiry into whether it has jurisdiction cannot be, as it was in McCandless, divorced from the factual record and the determination of the Postal Service or the NLRB as to the classification of the employee.
McCandless, 996 F.2d at 1202. We held that the MSPB was required to consider the job descriptions of the Postal Service employees and whether they were excluded from a bargaining unit. Id.
Acknowledging the significance of the employee’s job description and the Postal Service’s interpretation of an employee’s bargaining rights, we held in Carrier V that “Carrier made a prima facie showing that the position he [held was] a 'nonbar-gaining’ position.” Carrier v. Merit Sys. Protection Bd., 79 F.3d 1165, 1996 WL 91647, at *1 (Fed.Cir.1996) (Table). We then remanded to the Board for the finding of whether the prima facie showing was rebutted, that is, whether Mr. Carrier could nonetheless have joined a bargaining unit. We held that if Mr. Carrier was ineligible for membership in a bargaining unit, then the Board was “obligated to follow our holding in McCandless and assume jurisdiction over Carrier’s appeal.”
On remand the administrative judge ruled that “[b]ecause the appellant [was] not shown to be a management official or supervisor or an employee engaged in personnel work, he was not excluded as a matter of law from a collective bargaining unit pursuant to 39 U.S.C. § 1202.” Carrier v. United States Postal Serv., Docket No. DC0752930121-M-1, slip op. at 3-4 (M.S.P.B. August 13, 1996) (Carrier VI). Adopting the reasoning of his earlier, vacated decision, the administrative judge analyzed Mr. Carrier’s position description, which referred to Mr. Carrier’s position as “nonbargaining.” The description stated that the position was to be filled in accordance with “Handbook EL-311, Section 540-Selection Policies for Nonbargain-ing Positions.” The administrative judge ruled that Mr. Carrier had provided no evidence “that this notation should be construed as precluding the appellant’s membership in a collective bargaining unit,” and thus that Mr. Carrier “has not met his burden of establishing that he was ineligible to join a collective bargaining unit....” Id. at 4. The full Board affirmed, with the following analysis:
This evidence indicates that selection rules arrived at by collective bargaining did not apply to the appellant’s position because it was not currently covered by the collective bargaining agreement. It does not resolve the question of whether the incumbent of the position was ineligible for collective bargaining as a matter of law. If it answered this question the court’s remand would have been unnecessary.
Carrier v. United States Postal Serv., 78 M.S.P.R. 404, slip op. at 9 (1998) (Carrier VII). This is the decision now before us.
C
Mr. Carrier bears the burden of establishing that the MSPB has jurisdiction of *1383his appeal.- See 5 C.F.R. § 1201.56(a)(2) (1998); Link v. Department of the Treasury, 51 F.3d 1577, 1581 (Fed.Cir.1995). He presented evidence that, prima facie, met this burden. It was not disputed that the Postal Service described the position as a “nonbargaining position.” The Postal Service does not dispute that this designation would have barred him from joining a bargaining unit. Mr. Carrier was a senior employee with over 23 years of service, and his personnel documents in the record state that he received “management increases” in pay. He was employed at the national headquarters of the Postal Service in Washington, D.C.' and was shown to have served as Acting General Manager for the Service/Quality Performance Division. One of his superiors testified that he played a role in formulating high level policies, at least some of which required approval at the highest levels of the Postal Service. These facts were undisputed, and comprised the prima facie case that-shifted to the Postal Service the burden of coming forward with contrary evidence. No sufficient evidence was forthcoming from which the Board could reasonably support its conclusion that Mr. Carrier was somehow eligible for a collective bargaining remedy.
In its brief on appeal, the Postal Service concedes that “Mr. Carrier was a nonbar-gaining employee.” Nonetheless, the MSPB argues that he must show that he had demanded and had been refused bargaining rights, pointing to the case of United States Postal Service, 232 N.L.R.B. 556, 1978 WL 7148 (1978). In that case a group of Postal Service employees had, after extensive effort and litigation, obtained from the NLRB the right to organize into a bargaining unit. The MSPB, and my colleagues on this panel, suggest that Mr. Carrier had to engage in unsuccessful attempts to join a bargaining unit before the Postal Service’s designation of his position as “nonbargaining” could be recognized by the MSPB.
That is not an appropriate burden to impose on an employee as a prerequisite to access to the statutory path of appeal. Jurisdictional access to the allocated appeal rights, as between collective bargaining procedures and the MSPB, does not contemplate that an employee who is explicitly designated as nonbargaining must engage in a unionizing revolt and NLRB litigation before he can embark on the path- of appeal to which the statute has assigned him.
The Postal Service‘does not suggest that Mr. Carrier could unilaterally transform his position from nonbargaining to bargaining. Instead, he would have to either be admitted to a bargaining unit from which he is now excluded, or start a new union and obtain NLRB approval; neither path is acknowledged by the Postal Service as appropriate. Nonetheless, now that Mr. Carrier is no longer employed, the Postal Service has taken the litigation position that despite the longstanding and unchallenged “nonbargaining” official description of his position and despite the other evidence of record, he must prove that no bargaining unit would accept him. The panel majority agrees with this curious position.
The evidence established prima facie that Mr. Carrier was not eligible to join a bargaining unit. The burden of coming forward with contrary evidence shifted to the Postal Service. The Postal Service presented no evidence whatsoever that Mr. Carrier was eligible to join a bargaining unit during his employment. Its own documents and the undisputed evidence of record point in the opposite direction. Thus, the Postal Service did not meet its evidentiary burden. The argument that Mr. Carrier “chose” not to exercise his bargaining rights comes with poor grace, for the Postal Service documents state plainly that this position was nonbargain-ing. By classifying Mr. Carrier’s position as nonbargaining, the Postal Service ne*1384gated any choice to join a bargaining unit. The purpose of the PEARA was to assure appeal rights to the MSPB, to those Postal Service employees who had no right to choose the collective bargaining procedure.
The McCandless decision directs the MSPB, in deciding whether an appeal is properly before it, to consider the relevant official documents. See McCandless, 996 F.2d at 1202 (vacating and remanding because, among other things, the MSPB “failed to consider the job descriptions of the affected Postal Service employees with respect to their exclusion from any collective bargaining unit and significance of that exclusion to the affected employees’ appeal rights to the MSPB”). When the Postal Service classified Mr. Carrier’s position as “nonbargaining,” in administration of the standards set by the National Labor Relations Act and in recognition of the management nature of this position, see Waldau, 19 F.3d at 1399 (describing NLRB management criteria), the Postal Service excluded Mr. Carrier from membership in a bargaining unit. This status can not, years later, be casually denied by the Postal Service when the employee seeks to follow the appeal path to which the Postal Service committed him.
Barring Mr. Carrier from access to the MSPB path of appeal thwarts the PRA-PEARA statutory plan. I must, respectfully, dissent.