dissenting.
I respectfully dissent, for this decision contravenes statute and controlling precedent. After Mr. Coursen had ten years of employment in a position classified by the Postal Service as a non-bargaining, management position, it is not appropriate for the MSPB and this court to require him to prove that he is entitled to non-bargaining status, for example by having attempted and failed to join a bargaining unit.
A
The MSPB has now taken unto itself the authority to review Postal Service position classifications. These MSPB reviews are not based on Fair Labor Standards Act standards or National Labor Relations Board criteria, or even on Postal Service classification guidelines. In Mr. Coursen’s case, the reclassification appears to be based on an undefined concept of what a “manager” does, unencumbered by the *1358paraphernalia of decades of labor law and practices.
By its holding that Mr. Coursen should not have been classified as a non-bargaining management employee, the MSPB removes him from the MSPB appeal path, although the Postal Service classification entitles him to this appeal path. In this curious posture the Postal Service is an apparently willing accomplice, for it has neither asserted that the MSPB is intruding beyond its authority, nor attempted to defend the correctness of the Postal Service classification. However, the Postal Service has not reclassified Mr. Coursen’s position, or admitted to error in its classification. Nonetheless, the Postal Service presses the litigation position that Mr. Coursen must now prove that he was correctly classified by the Postal Service. The result of this opportunistic and now successful argument is that the MSPB and this court have denied Mr. Coursen the appeal rights of a non-bargaining employee; and since he was a non-bargaining employee throughout his employment, he is also barred from invoking the grievance procedures available to bargaining unit employees.
The statutory plan of the PRA (Postal Reorganization Act of 1970) and the PEARA (Postal Employees Appeal Rights Act) deliberately and carefully avoids, the creation of Postal Service employees “with neither grievance nor appeal rights.” McCandless v. Merit Sys. Prot. Bd., 996 F.2d 1193, 1201-02 (Fed.Cir.1993). The overreaching by the MSPB and departure from statute insert unwarranted uncertainty into a once-straightforward designation of the applicable path of appeal, for now the aggrieved employee may first have to litigate the Postal Service’s classification, before the MSPB will accept his appeal.
Position classification as “bargaining” or “non-bargaining” is performed by the Postal Service in accordance with the Fair Labor Standards Act and NLRB rules. The rules for such classification are rigorous and well-established, and they are administered by a complex of laws and agencies. Classification for purposes of collective bargaining eligibility, when challenged, is decided through procedures administered by the NLRB. Courts having jurisdiction of such disputes will not disturb the NLRB’s classification unless it is clearly arbitrary or unreasonable. See National Alliance of Postal and Federal Emp. v. Klassen, 514 F.2d 189 (D.C.Cir. 1975).
When the Postal Service has classified a position as non-bargaining in accordance with the requisite FLSA criteria, the employer and the employee are committed to the rights and burdens of that classification. The MSPB has no authority to change a Postal Service position classification. Further, the Postal Service’s classification of Mr. Coursen’s position is not directly reviewable by the courts. See American Federation of Labor v. Nat’l Labor Relations Bd., 308 U.S. 401, 409-11, 60 S.Ct. 300, 84 L.Ed. 347 (1940) (Direct judicial review of representation determinations is unavailable.) Nor is it indirectly reviewable by the MSPB and the Federal Circuit.
The panel majority, in undertaking to analyze Mr. Coursen’s position description and responsibilities in order to review the MSPB decision, misperceives the issue. The framework of Postal Service labor practices does not authorize MSPB review of Postal Service classification of positions as bargaining or non-bargaining. The MSPB has jurisdiction neither to review the Postal Service criteria, nor to set its own criteria.
The Postal Service, having officially classified the position held by Mr. Coursen, and maintained the classification without challenge by union or agency, can not now *1359impeach its own classification in order to bar Mr. Coursen’s appeal. Nonetheless, my colleagues hold that Mr. Coursen had to establish that he was “precluded as a matter of law” from joining a collective bargaining unit in order to exercise his right to appeal to the MSPB. However, the Postal Service designated his status as non-bargaining, and his employment records designate “management” status. There was no evidence of his eligibility and right to join a bargaining unit. Indeed, at oral argument the Postal Service conceded that it knew of no bargaining unit for which Mr. Coursen might have been eligible. On the undisputed premises, Mr. Coursen’s designated status as a non-bargaining management employee must be accepted by the MSPB.
B
Even if the MSPB and this court do have authority to change the Postal Service’s classification of Mr. Coursen’s' position, the burden of proof was incorrectly placed. The panel majority holds that Mr. Coursen was required to demonstrate, by “a preponderance of evidence,” that the Postal Service correctly classified his position. However, the proper placement of the burden is on the attacker of the classification. In National Labor Relations Board v. Kentucky River Community Care, Inc., — U.S. -, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001) the Court confirmed that the burden of proof in a challenge of supervisory status is on the party presenting the challenge, whether the classification is challenged by the employer, the Court citing Masterform Tool Co., 327 N.L.R.B. 1071, 1071-72 (1999), or by the union, the Court citing Panaro and Grimes, 321 N.L.R.B. 811, 812 (1996). Id., — U.S. at -, 121 S.Ct. at 1866. Thus the Postal Service bore the burden of showing that it misclassified Mr. Coursen.1 The Postal Service did not show that it had made a mistake.
It contravenes Kentucky River for the MSPB to place the burden on Mr. Cour-sen, whose position was classified as “non-bargaining” by the Postal Service, to prove that the Postal Service had correctly classified his position. And as I have discussed, the matter of erroneous classification, if raised by the Postal Service, is resolved in accordance with the FLSA and NLRB procedures, not by the MSPB.
The Federal Circuit should correct, not endorse, these errors.
. The panel majority takes issue with the applicability of the burden of proof placement by Kentucky River on the party that seeks to establish supervisory (or management) status in accordance with NLRB rules. However, the Postal Service has already classified Mr. Coursen as "management” under NLRB rules. See, e .g., Notification of Personnel Action showing "management increase” from May 10, 1985; "management increase” July 19, 1986; "management cola” Nov.- 4, 1989; "management cola” May 5, 1990; "management increase” July 15, 1990. In 1987, 1988, and 1991 Mr. Coursen attended Bolger Management Academy in Potomac, Maryland. In 1993 he took the course "Administrative Management for Postmasters.” It is not that Mr. Coursen asserts management status that he does not have; rather, the Postal Service so classified Mr. Coursen at least as early as December 21, 1985. It is the Postal Service that now proposes to change his status, not Mr. Coursen. It is not disputed that throughout the period of his employment he was classified as management, his position was non-bargaining, and he was precluded by law from joining a bargaining unit.