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EMPLOYEE/LABOR RELATIONS TRAININGThe Office of Personnel Management's 2001 Symposium on Employee and Labor Relations (SOELR) will be held in Chicago, Illinois on March 27-30, 2001, at the Sheraton Chicago Hotel & Towers. This comprehensive conference is devoted to recent developments and emerging issues in employee relations, labor relations, dispute resolution, work/life, and partnership. The last SOELR was in Atlanta and was attended by 950 individuals from across the country and overseas. Attendees at SOELR 2001 will be able to choose from more that 40 different breakout topics and eleven optional pre-conference workshops. In addition, there will be four plenary sessions and a reception for all attendees. The conference brochure was mailed out and is now available on OPM's home page at www.opm.gov/er. The conference Registration Form is available on that site and may be completed on screen and mailed or faxed to OPM (see the brochure for details on how to register).The Federal Dispute Resolution Conference (FDR) is a conference oriented toward equal employment opportunity specialists, human resource specialists, managers, dispute resolution specialists, and attorneys. FDR XVI will be held in New Orleans, Louisiana on August 12-16, 2001. Brochures for the conference will be mailed out early in 2001. The brochure, along with any other conference information, will be available on FDR's Internet website at http://www.fdr-conference.org/. HATCH ACTThe Court of Appeals for the Federal Circuit upheld the Merit Systems Protection Board's finding that the appellant violated the Hatch Act when he ran for reelection as a Republican candidate for Tax Assessor in 1995 in New York. The court also upheld the Board's ruling that the Whistleblower Protection Act does not authorize the debarment of an individual in addition to a removal penalty. Kane v. Merit Systems Protection Board, U.S. Court of Appeals for the Federal Circuit, Appeal No. 98-3191, (Fed. Cir., April 27, 2000).INDEFINITE SUSPENSIONSThe agency indefinitely suspended the appellant from his Administrative Law Judge position under the authority of Title 5, Section 7521 of the United States Code and pending the outcome of a recommendation by the District of Columbia Bar Board of Professional Responsibility that the District of Columbia Court of Appeals suspend the appellant's law license for three years. This recommendation was based on the appellant's alleged misappropriation of over $10,000 from the Ancient Order of Hibernians. The Merit Systems Protection Board's Chief Administrative Law Judge upheld the suspension but the two Board members disagreed on whether the judge's decision was proper. Acting Chairman Slavet questioned whether the appellant had due process in the actions leading up to the recommended law license suspension and Member Marshall believed that appellant had had his "day in court." As a result of the this disagreement, the Chief Administrative Judge's decision becomes a nonprecedential decision of the Board. Labor v. Slattery, CB7521980047-T-1, November 30, 2000.JURISDICTION AND PROCEDUREThe agency requested authority to pass over the preference-eligible candidate because of his alleged falsification of his criminal history during a pre-employment interview, and characterized this as a "qualifications" determination. In his appeal, he argued that he was really subject to an appealable negative suitability determination, and the Board found he had made a prima facie case entitling him to a jurisdictional hearing on remand. The decision appears to say that if an agency has delegated authority to make suitability determinations, any negative hiring decision based on factors that could have been suitability factors will be viewed as a negative suitability determination. Edwards v. Justice, AT3443990743-I-1, August 8, 2000.The employee had been a Student Trainee (co-op) with the agency for more than 2 years at the time of her resignation. She appealed to the Board claiming constructive discharge. The administrative judge dismissed her appeal for lack of jurisdiction, citing Taylor v. Navy, 63 M.S.P.R. 99 (1994), which held that co-ops were not "employees" entitled to Chapter 75 due process and appeal rights. A month-and-a-half later, the appellant through counsel filed a petition for review based on her new awareness of the Federal Circuit's decision in Van Wersch v. Department of Health and Human Services, 197 F.3d 1144 (Fed. Cir. 1999), which had been issued the same day her appeal was dismissed. That decision "overruled the cases relied on by the administrative judge" by finding that an employee who is eligible to appeal under 7511(a)(1)(C)(ii) is covered despite ineligibility under 7511(a)(1)(C)(i). The Board found the petition for review untimely, citing its precedents which say the existence of new case law is not a basis to excuse an untimely filing. It then reopened the appeal on its own motion to correct the conflict between the initial decision and the controlling Federal Circuit precedent. In doing so, it took into account the fact that the initial decision was not yet the Board's "final" decision when the Federal Circuit issued the new precedent. The case was remanded for a full jurisdictional hearing. Beck v. General Services Administration, DE0752000063-I-1, August 22, 2000. The AJ had reversed the agency's removal, taken under 25 USC 3207. The statute requires the removal of a present employee or denial of a position to a prospective employee that has "regular contact or control over Indian Children" if the employee fails to meet the minimum standard of conduct. The agency must conduct a thorough criminal background investigation on each present or prospective employee whose duties include regular interaction with Indian children. The present or prospective employee can not "have been found guilty, entered a plea of nolo contendre or guilty to any offense under federal, state, or tribal law involving crimes of violence" including the crimes of sexual assault, molestation, exploitation, contact or prostitution, or crimes against the person. While the AJ found the agency retained some discretion in determining whether to remove, the Board disagreed, and reinstated the removal. The agency was right when it read the law as requiring that result, since there was no other position into which the employee could be assigned that did not have contact with Indian children. The age of the present/prospective employee's conviction does not matter. Johnson v. Health and Human Services, DE0752990219-I- August 23, 2000. Replacing a deciding official who has come to a decision in relation to the charges and penalties in a pending action is a harmful error. In this case, the deciding official had not yet prepared a written decision, and the agency argued that it replaced her because she was about to leave the organization, but the Board found neither of these issues pertinent. A non-frivolous allegation of improper replacement requires a remand to allow the appellant to present evidence on his allegations. Wilkowski v. Treasury, DC0752990797-I-, August 23, 2000. The term employee had been in the position more than 1 year when his supervisor gave him a memorandum telling him his appointment would be terminated on a specific date. After receipt of the memorandum, the employee retired, and then appealed the termination decision. The agency argued for dismissal, claiming the appellant was not an "employee" under the law, and that his retirement was voluntary. The administrative judge found he was an employee, since he was a non-probationary, competitive service employee with more than 1 year in an appointment not limited to 1 year or less. However, he agreed that dismissal was warranted based on the voluntariness of the retirement. Upon review, the Board found it was error to consider voluntariness case law at all. The termination memorandum was clearly a final agency decision on its own terms. Therefore, under the plain language of 7701(j), appellant's decision to retire did not affect his right to appeal the termination. Remand was unnecessary, since the agency had not met the minimum Constitutional requirements of due process, and outright reversal was therefore required. Cunningham v. Veterans Affairs, PH0752990258-I-1, August 31, 2000. The appellant's petition alleged "numerous" errors by the administrative judge. The Board agreed on many points. It found the errors in dealing with the whistleblower reprisal claim required remand, and went on to address a number of procedural errors. These included: ex parte communications, between the AJ and the agency's Office of Inspector General, and between the AJ and the agency counsel; failures to keep a complete written record, and generally to keep all parties properly informed; and the issuance of severe sanctions, without first giving the party at fault an opportunity to correct the relevant defects. These, and the error allegations the Board rejected, make the case an unusually varied compendium regarding common bases for procedural dispute. Fickie v. Army, PH0752960442-I-1, August 31, 2000. The removal proposal outlined four charges against the employee, but at a prehearing conference, the parties agreed that "the sole issue at trial will be the 'candor' matter." (This related to the fourth charge.) At hearing, the administrative judge found the stipulation superseded the reasons for action given in the proposal, and defined the sole issue in the case. He then reversed the action, finding the agency did not prove the stipulated charge. In its petition for review, the agency raised several issues. One was its contention that the AJ misconstrued the meaning and effect of the prehearing stipulation. The agency believed it had agreed only as to the evidence it would present at hearing, and not as to the overall basis for adjudicating the case. Therefore, it argued, the evidence it had submitted in support of its other charges should have been considered. The Board sided with its AJ on this issue. It found Taylor v. Army, 44 M.S.P.R. 471 (1990) was exactly on point, since the agency did not object to the AJ's characterization of the stipulation or request clarification at the time. Ludlum v. Justice, NY0752990088-I-1, October 5, 2000. (See also Ludlum v. Justice under Charges and Penalties.) The Court of Appeals upheld the agency's nexus between the appellant's misconduct, engaging in an affair with a corpsman's wife while the corpsman's unit was deployed abroad, and the efficiency of the service. By a preponderance of the evidence, the agency showed the appellant's misconduct affected his trustworthiness in relation to the corpsmen and corpsmen families the appellant was employed to serve. Brown v. Navy, United States Court of Appeals for the Federal Circuit. Appeal No. 00-3003 (Fed. Cir., Oct. 20, 2000). (See also Brown v. Navy under Charges and Penalties.) The appellant's IRA appeal claimed that a 1999 appraisal was lowered as an act of retaliation against the employee for whistleblowing. The judge dismissed, saying the doctrine of collateral estoppel prevented consideration of this claim since it was adjudicated in a prior RIF appeal. Upon revew, the Board found this was error. Collateral estoppel applies when: (1) an issue is identical to one raised in a prior action, (2) the issue was actually litigated in the prior action, (3) the determination on the issue in the prior action was necessary to the resulting judgement, and (4) the party precluded was fully represented in the prior action. In this case, criteria (2) and (3) were not met. The judge who adjudicated the RIF appeal mentioned the reprisal allegation, but did not adjudicate it, and said consideration of that claim would not have affected the outcome of the case. Luna v. Air Force, DA1221000316-W-1, November 3, 2000. The appellant claimed the agency reassigned someone expresssly to make a position unavailable to him in the pending RIF, and did so as an act of reprisal for his protected disclosures. Throughout the appeal and subsequent petition for review, the agency maintained that the Board lacked jurisdiction. "The Board, however, 'assumed for purposes of argument that it [had] jurisdiction over [Mr. Schmittling's] IRA appeal in order to reject [his] claim on the merits.'" Upon review, the Court of Appeals for the Federal Circuit found this was error. The Board may assume certain jurisdictional elements are met if it ultimately concludes at least one is not met. However, it may not decide the merits of an appeal without finding it does have jurisdiction. Schmittling v. Army, 219 F.3d 1332 (Fed. Cir. 2000).
Created 27 February 2001 |