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MITIGATIONThe agency removed appellant based on a charge of "unacceptable conduct." The specification involved an incident where appellant became angry and threw a partially-filled soda can against the wall which hit about one foot from where her supervisor was standing. On appeal to the MSPB, the administrative judge mitigated the removal to a 14 day suspension. The agency petitioned for review, and the full Board reviewed the reasonableness of the penalty. The Board noted that although the agency's "Zero Tolerance" policy did not state that any violation, no matter how minor or what the circumstances, will result in removal of the offending employee, the supervisor in this case interpreted it to mean this. When asked during the hearing to explain the zero tolerancy policy, the supervisor said, "...to me, zero tolerance means removal." He also testified that he did not seriously consider a lesser penalty than removal. In weighing the reasonableness of the penalty, the Board considered, among other things, the fact that her misconduct did not constitute an intentional threat or assault on her supervisor nor did it intimidate or place her supervisors in fear. In fact, her supervisor testified that he had a good working relationship with her and still considered her a friend. The Board decided that a 45-day suspension was the maximum reasonable penalty under all the circumstances of the case. Omites v. Postal Service, CH0752000241-1-1, November 2, 2000OFFICIAL TIME TO LOBBY CONGRESS ON DESIRED (BUT NOT PENDING) LEGISLATIONThe agency, citing several National Guard cases, disapproved a provision authorizing official time to union officials to lobby Congress on desired legislation on the ground it was inconsistent with the 1999 DOD Appropriations Act. The union filed a negotiability appeal, arguing, among other things, that the case law didn't apply because the provision did not authorize official time to lobby Congress on pending legislation, but rather official time to lobby Congress on desired legislation--i.e., legislation that the union officials wish to see enacted, but that has not yet been introduced by the House of Representatives or Senate at the time of the officials' lobbying activities.The Authority concluded that the plain wording of section 8012 of the DOD Appropriations Act isn't inconsistent with the use of appropriated funds to influence desired legislation. It rejected the agency's contention that the disapproved provision was contrary to either section 8801 or the 1999 DOD Appropriations Act or 18 U.S.C. 1913. "The Authority has consistently held that both section 8001 and 18 U.S.C. 1913 contain express exceptions that permit the use of appropriated funds for representational lobbying concerning legislation or appropriations." (See Corps of Engineers, 52 FLRA No. 93, where FLRA stated that 7102(1) and 7131(d) constitute congressional authorization for agencies to grant official time for employee union representatives to lobby Congress on representational issues.) In a separate concurring opinion, Member Cabaniss said that the plain language of the DOD appropriations bill precluded FLRA from finding the disapproved provision inconsistent with it. But she added: It is unlikely that Congress would place a ban on lobbying for legislation at a point so midway in the legislative process that much of the lobbying activity regarding a piece of legislation has already taken place. If the intent was to indeed ban the use of appropriated funds for all lobbying activities, both before and after a piece of legislation has been introduced, it needs to be more clearly and conclusively set out by Congress if the desire is to avoid the legislative interpretation I feel constrained to agree with today. Association of Civilian Technicians, Razorback Chapter 117 and Arkansas National Guard, 0-NG-2498, June 6, 2000, 56 FLRA No. 62. PERFORMANCE MANAGEMENTPerformance Management Clearinghouse. The Performance Management Clearinghouse is now operational. The Clearinghouse is a new resource tool available through the Performance Management Technical Assistance Center on the Office of Personnel Management web site. You can access the Clearinghouse in the Additional Resources section of http://www.opm.gov/perform.The Clearinghouse presents an excellent opportunity for Federal agencies to share information about performance management programs, processes, and practices that have worked well in their respective agencies. To submit data to the Clearinghouse, you must: be a Federal employee; and include the name of a contact who can provide further information upon request. To submit descriptions of effective performance management programs, processes, and practices, complete the Performance Management Clearinghouse Form that is available on the website. Please note that we cannot post anonymous submissions. Therefore, prior to posting data, we will inform the applicable agency headquarters human resources office. To make submissions: Mail your submissions to: Performance Management Workshops. The Performance Management and Incentive Awards Division is offering a series of workshops. The workshops are intended for Federal human resources professionals, managers, supervisors, and employees with responsibilities for the program-related areas. The cost of each workshop is $150 per person. Attendance will be limited to 50 participants for each workshop. Registrations must be received in the Performance Management and Incentive Awards Division at least five business days before the workshop start date. Confirmation letters will be sent in advance of the workshop date. The workshops being offered are: Basic Performance Management: A workshop designed to provide a basic understanding of performance management and its various components. The workshop is intended for anyone new to performance appraisal or awards or who just wants to brush up on them. The workshop will cover the requirements and flexibilities found in the Governmentwide regulations. It also will address the fundamentals and principles involved in planning, monitoring, developing, rating, and rewarding performance. Measuring Employee Performance: How to Develop Employee Performance Plans That Align With Organizational Goals: Agencies are urged to align employee performance with organizational goals and to focus on results. Writing individual and work unit performance plans that support those goals is one way to make that happen. Workshop participants will learn how to determine what objectives to measure at the work unit level, develop performance elements to support those objectives, develop work unit and individual measures and standards, and determine how performance will be monitored. Understanding Awards: A workshop designed to provide a solid understanding of the bases and forms of awards. The workshop will cover eligibility issues and the distinction between recognition and incentives. It also will address aligning awards with organizational goals, and looking at what is legal vs. what is appropriate. At the conclusion of the workshop participants will be able to identify effective awards strategies and understand the boundaries and limitations for using different types of awards. How to Register: Submit a completed SF-182, DD1556, or equivalent to: PROMOTION APPRAISALS BY THE WRONG OFFICIAL ... BEP TESTThe arbitrator found that the agency violated the contract's requirement that it apply competitive promotion procedures in filling positions. Specifically, the grievants had been improperly ranked because their appraisals weren't made by their immediate supervisors but instead by a management official serving on the promotion board. As a remedy he ordered the selectees removed from the affected positions, the positions re-advertised, and the appraisals completed by each applicant's supervisor.(In an interim award, the arbitrator rejected the agency's claim that the union couldn't grieve nonselection from properly ranked candidates, noting that in his view the candidates weren't properly ranked.) FLRA rejected the agency's essence, exceed authority, and contrary to law exceptions to the award. Regarding the later, it agreed that the directed remedy affected management's right to make selections. But, as in any award ordering a remedy that affects a management right, FLRA applied its 2-prong BEP test under which it first determines whether the arbitrator was enforcing an "applicable law" or a contract provision that constitutes one of the three types of exceptions to management's rights mentioned in section 7106(b) and then determines whether the remedy constitutes a reconstruction of what the agency would have done had it not violated the applicable law or section 7106(b) contraction provision. In the case at bar it found that a contractual requirement to apply competitive promotion procedures is a section 7106(b)(2) negotiable procedure (satisfying prong I). And it also found that the directed rerun order satisfied prong II because it was a proper reconstruction of what the agency would have done had it not violated the competitive procedures. Panama Canal Commission and Marine Engineers Beneficial Association, District No. 1, 0-AR-3223, June 22, 2000, 56 FLRA No. 67. REDUCTION-IN-FORCEThe appellant had been injured on the job and was returned to employment through the agency's program to reemploy injured workers. Although the employee could not perform in his previous function, he continued working through the reemployment program for six years before he was separated under reduction in force procedures. The appellant challenged the competitive area established by the agency. The agency had created one competitive area for all employees who were reemployed under the agency's Reemployment Initiative Program, regardless of where these employees were assigned. The Board decided that it was unclear whether or not the appellant's competitive area met the definition and requirements in OPM's regulations. Therefore, the Board remanded to allow the agency to defend its competitive area determination and for the appellant to provide additional argument on how he was impacted by his placement in the competitive area designated for all the employees hired under the reemployment initiative. Foster v. Tennessee Valley Authority, AT0351990352-I-1, September 27, 2000.The appellant challenged the agency's reduction in force action that separated him from Federal service. The appellant argued that the agency had not provided him with appropriate veterans preference when assigning his tenure group. The Board found that it was not clear whether or the employee was receiving a military retirement benefit based on 20 years of service. Such a pension would prohibit the employee from receiving veterans preference. The appellant had indicated to the agency that he served 19 years, six months and received a "20 year retirement." Since it is possible to receive a military retirement benefit that includes both actual and constructive service, the Board remanded the case for a clarification of the nature of the appellant's military annuity. Kizer v. Navy, AT0351990637-I-1, November 6, 2000. SETTLEMENT/LAST CHANCE AGREEMENTSIn this case the Court emphasizes its discomfort with settlement agreements where if the agency gives a recommendation that is unresponsive or qualified in some respect, the employee is likely to conclude that the agency has done something to signal that his tenure was other than a happy one, and that the agency has therefore breached the settlement agreement. On the other hand, if the agency misrepresents its true views as to the employee's performance, it deceives prospective employers who are relying on the agency for an accurate recommendation. For that reason, the court concluded, it will not readily construe such an agreement to require an agency to deceive prospective employers; indeed, if an agreement were construed in such a fashion, it might well be unenforceable as a matter of public policy. Instead, the court held it will construe such agreements strictly according to their terms, and will not assume that silence in response to particular inquiries necessarily constitutes a "negative comment" on the employee's performance.The settlement agreement imposed only three specific obligations, where pertinent, the designated officials were to "advise that the appellant resigned from the agency for personal reasons," to state that she "was rated at the highly successful level," and to make "no negative statements." The appellant's complaint was the refusal to answer certain questions left a negative impression on the prospective employers, and that the statement that he (Mr. Mitchell) "took the 5th" with respect to the questions he declined to answer had an even greater negative effect. The Court sustained the Board's decision that the agency did not breach the terms of the settlement agreement. Godwin v. Defense, United States Court of Appeals for the Federal Circuit, Appeal No. 99-3333, (Fed. Cir., October 3, 2000) On May 5, 1999, the appellant and the agency entered into an agreement settling appellant's removal from Federal service. The appellant was to be reinstated in June 1999 as a correction officer. The appellant was also to receive back pay. In the time between his removal and the settlement, the appellant took a part-time job as a limo driver. 5 UCS 5596 (b)(1)(A)(i) entitles an employee who was removed from Federal service and who is being reinstated to amounts equal to the amount the employee would have received if not removed minus "any amounts earned by the employee through other employment during that period." The appellant argued and the MSPB AJ agreed that the monies received by the appellant from his part-time job constituted "moonlighting" pay (which is not deducted from any backpay award) rather than replacement pay (which would be deducted from any backpay award). The AJ made this finding notwithstanding the fact that prior to his removal, the appellant had been ordered by his supervisors to cease all moonlighting activities, and the fact that the post removal part-time job was different from any part-time employment he had engaged in prior to his removal. Weber v. Justice, NY-0752-98-0020-X-1, October 17, 2000. (See also Weber v. Justice under Back Pay).
Created 27 February 2001 |