|
United States
Office of
Personnel Management |
New Developments in Employee
and Labor Relations |
March 2000 |
The Federal Circuit issued a decision impacting reduction in force procedures related to employee "retreat" rights during competition for placement. OPM regulations allow an employee to retreat three grade levels once released from his or her competitive level. The grade levels are either double-interval grades (grades 9, 7, 5) or single-interval grades (grades 10, 9, 8). Until this decision, the regulations had been interpreted to mean that an agency would consider the grade interval of the position held by the employee at the time of the reduction in force action. With this decision, the court held that an agency must also consider the grade interval of the position to which the individual may retreat. The appellant argued that she should have been placed in a GS-5 Secretary position when she was released from her GS-11 Alternative Enforcement Program Specialist position. The Merit Systems Protection Board and the Federal Circuit held that OPM's regulations must be interpreted in light of the grade interval of the position in which she would be placed. This would result in the appellant only being eligible for positions within three single-interval grades of her grade 11 position. Therefore, the GS-5 Secretary position was not within her reach. Henderson v. Interior, 98-3343, Fed. Cir., January 29, 2000.
Almost two years after her removal from Federal service, the appellant filed for disability retirement. The retirement application was denied because she had not met the statutory deadline for filing her application. OPM also determined that there was not sufficient evidence to warrant waiving the filing deadline because the appellant did not demonstrate that she was mentally incompetent during the one-year following her removal. The initial decision sustained OPM's determinations and the appellant filed a petition for review with the Merit Systems Protection Board. The full Board remanded the case for further adjudication under the standards set out in French v. OPM, 37 MSPR 496 (1988). The French case established the process the Board wants used when an appellant demonstrates that he or she is currently not mentally competent. Under the remand order the AJ will attempt to find pro bono representation for the appellant and OPM will join in a non-adversarial effort to determine if the appellant was mentally incompetent during the one year following her separation.
The Board also ordered the AJ to determine if the agency failed to meet the regulatory requirements for filing a disability retirement on behalf of the appellant. The Board took this opportunity to clarify its holding last year in Carillo v. Army, 82 MSPR 61 (1999). Carillo was another case that the Board remanded for a determination of whether or not the agency should have filed a disability retirement on the appellant's behalf. However, in the earlier case, the Board inferred that the agency should have filed the retirement claim before taking a removal action. Here, the Board referenced the regulatory requirements for both CSRS employees (5 CFR 831.1205(a)(1)) and FERS employees (5 CFR 844.202 (a)(1)) and noted that removal from the Federal service is a precondition to an agency filed disability application. Hall v. OPM, PH831E930312-I-1, March 7, 2000.
This is a case involving the appellant's challenge to the agency's determination that he should not receive Law Enforcement Officer (LEO) retirement credit. The administrative judge concurred with the agency determination and the appellant filed a petition for review with the full Board. The Board agreed that the appellant did not prove that he occupied a position "in which the duties are primarily the investigation, apprehension, or detention of individuals suspected or convicted of offenses against the criminal laws of the United States, or the protection of officials of the United States against threats to personal safety." This definition refers to a primary law enforcement position. However, employees can also qualify for LEO retirement credit if they can demonstrate that they occupy a secondary position, one that is in the law enforcement field but the duties of which are supervisory, managerial, or administrative. The full Board found that the appellant had not been informed of his burden in demonstrating that he qualified for LEO retirement credit on the basis of a secondary position and the case was remanded for further adjudication. Grimes v. GSA, SF0842980669-I-2, November 8, 1999.
The appellants challenged the agency's denial of Law Enforcement Officer (LEO) retirement credit and the Board conducted an extensive review of the appellants' evidence regarding their law enforcement duties. The Board found that the appellants carried out the type of work that would qualify them for LEO coverage but that the amount of time spent in those duties was not significant enough to prove that law enforcement duties constituted the primary reason for their positions. Lott and Robillard v. General Services Administration, SF0842980659-I-2 & SF0842980695-I-2, November 8, 1999.
The appellant argued before the Board that his disability retirement was involuntary because of coercion by the agency. He also argued that the agency had discriminated against him on the basis of his disability. The administrative judge found no coercion and no disability discrimination on the agency's part and the appeal went to the full Board. The Board reiterated its standard for reviewing arguments of involuntariness in cases involving disability discrimination (Nordhoff v. Navy, 78 MSPR 88 (1998), aff'd, 185 F.3d 886 (Fed. Cir. 1999) (Table)). The Board held that the appellant must demonstrate that accommodation was possible and that the agency failed to provide it. If no accommodation were possible, then there can be no coerced choice between working or not working because no such choice existed. However, if the appellant can show that accommodation was possible, but not offered, then the disability retirement might be deemed involuntary. In this case, the Board expanded this standard to include the requirement that an employee must show that he or she indicated to the agency a desire to continue working, with accommodation. The Board remanded the case to allow the appellant on opportunity to establish jurisdiction under the Board's more explicitly stated standard. Lorenz v. U.S. Postal Service, CH0752990362-I-1, January 19, 2000.
Following receipt of a proposed notice of removal for medical inability to perform his duties, the appellant filed for disability retirement benefits. His retirement was approved and the appellant went on to file an appeal with the Board that his retirement was involuntary because the agency failed to provide him with reasonable accommodation of his medical condition. The administrative judge rejected the appellant's argument but the full Board remanded the case, after reiterating its standard for review of involuntariness in disability retirement cases (Rule v. Veterans Affairs, 81 MSPR 282 (1999)). The administrative judge again found no jurisdiction and the appeal returned to the full Board. In its analysis, the Board noted that the agency had not looked for positions at a lower grade level after exhausting efforts to restructure the appellant's current job or reassign him to a position that would meet his medical restrictions.
In reviewing agency efforts at accommodation in relation to an application for retirement, OPM questions whether reassignment at the same grade was considered. EEOC's standard for accommodation includes reviewing vacancies at a lower grade. The Board held here that agencies should consider all possible accommodations, even those at a lower grade, so that the employee can be given the choice between continued employment or disability retirement. However, the Board noted in this case that the appellant had not met the requirement outlined in Lorenz v. USPS, CH-0752-99-0362-I-1, January 19, 2000. The appellant failed to inform the agency that he wanted to continue his employment, rather than accept retirement. Without this, the Board found that even the existence of lower graded position would not have rendered the retirement involuntary. Rule v. Veterans Affairs, DA0752980216-B-1, March 7, 2000.
In response to the agency's plan to centralize Department of Veterans Affairs contracting offices (which would result in employees currently working in dispersed locations losing their jobs unless hired to work at the central office), the union proposed that the agency be required to make selections for the centralized positions from among eligible employees based on seniority. (Relying, in part, on 5 CFR 335.103(b)(3), FLRA finds that eligible is a synonym for qualified.)
Although the proposal interferes with the agency's rights to determine its organization and to hire and select, FLRA found the proposal to be a mandatorily negotiable ' 7106(b)(3) appropriate arrangement. It is tailored to apply only to employees who would otherwise lose their jobs and its benefits to affected employees outweigh the burdens imposed on management's rights.
The seniority criterion itself doesn't interfere with any management rights. [W]here management has authority to determine that employees are equally qualified for work assignments, said FLRA, a proposal requiring selection based on seniority does not affect management's rights to assign employees and assign work. [51 FLRA No. 146.] No reason to depart from this precedent is argued or established in this case. FLRA noted that the proposal wouldn't require management to fill positions it doesn't intend to fill, nor to fill positions with employees it determines aren't qualified.
Note that the seniority criterion--customarily used in assigning, e.g., overtime, details, and shifts--in this case applies also to selections for positions management decides to fill from
among equally qualified employees who would otherwise be adversely affected by the centralizing decision. American Federation of Government Employees and Department of Veterans Affairs Medical Center, 0-NG-2466, December 9, 1999, 55 FLRA No. 185.
Among the reasons the appellant gave for filing her appeal 16 days late was that she suffered from depression. Citing Klages v. Defense, 80 M.S.P.R. 594 (1999), Lacy v. Navy, 78 M.S.P.R. 434 (1998), and Smith v. MSPB, 168 F.3d 1305 (Fed.Cir. 1999), the Board said that because she raised a claim of mental illness as the reason for the late filing, the administrative judge should have provided her with explicit information for establishing good cause for waiver on that basis. To establish that her late filing was the result of illness, she has to: identify the time period during which she suffered from the illness; submit medical and/or corroborating evidence showing that she suffered from the alleged illness during that time period; and explain how the illness prevented her from timely filing her appeal or a request for an extension of time. In this case, since the administrative judge did not provide the appellant with the necessary explicit notice of what she needed to prove to establish her medical excuse for her late filing, the Board remanded the appeal for further adjudication. Leslie v. USPS, AT0752981073-I-1, September 10, 1999.
When the agency notified the union that it planned to transfer certain staffing functions from the Defense Contract Audit Agency (CDAA) to the Defense Finance and Accounting Service (DFAS), the union advanced two proposals--one applicable to unit positions and the other to both unit and non-unit positions. Both proposals required that the staffing function not be accomplished before August 2, 1998.
FLRA found that both proposals excessively interfered with the right to determine the agency's organization. When the union argued that management's right to determine organization wasn't affected because its proposals didn't require a transfer of any personnel, FLRA responded by noting that Athe Authority focuses on whether work functions are transferred, rather than on whether personnel are transferred. At any rate, [b]ecause both proposals would dictate where, organizationally, the Agency's staffing function is established, we find that the proposals affect management's right to determine the organization of the Agency . . . .
FLRA then applied its excessive interference balancing test (in footnote 3) and concluded that the proposals were nonnegotiable because they excessively interefered with the right to determine the agency's organization.
FLRA also rejected the union's claim that the proposals dealt with 7106(b)(1) matters. The proposals, said FLRA, do not involve the grade of staff to be assigned to a particular subdivision. Nor did they concern methods and means. Neither proposal prescribes the way in which the Agency must perform its work. Nor does either proposal concern the means that the Agency will use in performing its work . . . . American Federation of Government Employees, Local 3529 and Defense Contract Audit Agency, Central Region, 0-NG-2459, September 24, 1999, 55 FLRA No. 143.
The Board has issued a new Part 1208 of its regulations in 5 CFR for the processing of appeals filed under the Uniformed Services Employment and Reemployment Rights Act (USERRA) and the Veterans Employment Opportunities Act (VEOA). 65 FR 5410, February 4, 2000 (PDF.137kb).
The Board also issued revisions to 5 CFR Part 1201 to conform provisions of that part to the new Part 1208. 65 FR 5409, February 4, 2000 (PDF.120kb). Part 1208 is issued as an interim rule with request for comments, which are due by April 4, 2000. The Part 1201 revisions are ussed as a final rule. Both are effective upon publication.
The Board examined the appeals of two applicants who applied for civilian positions with the Department of Navy after retiring from the Navy Judge Advocate General Corps. The appeals were filed under the Uniformed Services Employment and Reemployment Rights Act of 1994 because the applicants alleged that they were not selected for the civilian positions due to their prior military service. The full Board found that the 1994 statute covered these employees even though they were retired from the military. Additionally, the Board found that the appeals were timely filed and noted that the Board recently dropped its 180 day deadline for filing under the Act when it issued regulations in October, 1999 (64 Fed. Reg. 54507 (1999)). After a detailed review of the qualifications of both applicants and the qualifications of the individuals selected for the vacancies, the
Board found no evidence that the appellants had been discriminated against based on their prior military service. Fahrenbacher and Sheehan, CH3443980656-I-1 & CH3443980724-I-1, March 22, 2000.
In a case decided as a result of a 4th Circuit remand (prompted by the Supreme Court's decision in NFFE v. Interior, 526 U.S. 86 (1999)), the Authority, Member Cabaniss dissenting in part, in effect reaffirmed the position it held prior to the 4th Circuit decision. [W]e hold that agencies are obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters not contained in or covered by the existing agreement unless the union has waived its right to bargain about the subject matter involved.
The majority didn't find it necessary to decide whether zipper clauses are a mandatory subject of bargaining. Member Cabaniss disagreed with this determination: the majority consciously chooses not to address possibly the most crucial aspect of midterm bargaining by refusing to even seek information regarding zipper clauses and their effect, if any, on union midterm bargaining. She also didn't agree with the majority's conclusion that union midterm bargaining, even in the absence of a contractual entitlement to do so, is a matter of statutory right. U. S. Department of the Interior, Washington, D.C. and U. S. Geological Survey, Reston, Virginia and National Federation of Federal Employees, Local 1309, WA-CA-30451 (52 FLRA 475 (1996)), February 28, 2000, 56 FLRA No. 6.
Created 27 February 2001
|
|
