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SUSPENSION FOR DISCOURTESYThe Federal Labor Relations Authority turned down the agency's exceptions to an award in which the arbitrator found that a 2-day suspension for discourtesy to a member of the public wasn't for just cause within the meaning of 5 USC 7503(a). In the arbitrator's view, the suspension was inconsistent with section 7503(a) because the alleged discourtesy didn't constitute a pattern of discourteous conduct and because it was based on only two examples within the previous year.Although the award affected management's right to discipline, it was affirmed because it passed the BEP test. (See writeup of 56 FLRA No. 67 in this issue of New Developments.) In this connection, it said the following about section 7503(a): We conclude that the most straightforward reading of section 7503(a) is that it limits an agency's ability to impose suspensions based on discourteous conduct to the two situations specified in the section. That is, fewer that four instances of discourteous conduct in 1 year does not constitute cause for suspension unless such instances constitute a pattern of such conduct. This is the interpretation that the Arbitrator adopted, finding no cause for the disputed suspension because there were only two charges of discourteous conduct against the grievant and because the charges did not constitute a pattern of discourtesy . . . .The Authority found nothing in the legislative history contradicting its interpretation. Indeed, it noted that there were indications in the legislative history that section 7503(a) wasn't to be broadly construed to permit agencies to suspend employees for any number of instances of discourtesy. FLRA continued as follows: With respect to the Agency's argument that, under the Arbitrator's interpretation of section 7503(a), it would have the discretion to impose discipline for fewer than four instances of discourteous conduct to anyone except a member of the public, nothing in section 7503(a) prohibits an Agency from disciplining an employee either for a pattern of discourtesy or for discourtesy that is linked to another offense. . . . Further, section 7503(a) applies only to suspensions of 14 days or less, not other disciplinary actions. Social Security Administration, Detroit Northwest Regional Office and American Federation of Government Employees, Local 3239, 0-AR-3251, July 7, 2000, 56 FLRA No. 74. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT/VETERANS EMPLOYMENT OPPORTUNITY ACTThe Board clarified its role in adjudicating claims brought under the Uniformed Services Employment and Reemployment Rights Act of 1994 but which occurred prior to 1994. The appellant in this case claimed that the agency had failed to consider him for promotion while he was active military duty in 1991. Based on a 1999 MSPB initial decision, the agency reconstructed the vacancy and allowed the appellant to submit an application package for the position. The appellant did not submit any application for the job and the agency considered him for the position based on the information in his Official Personnel File. The appellant was not selected for the position and he filed a petition for enforcement for failure to comply with the initial decision of the Board. The administrative judge erroneously dismissed the petition for enforcement on the basis that the Board did not have jurisdiction to review actions that occurred prior to the passage of the law in 1994. The full Board amended the initial decision by holding that while the Uniformed Services Employment and Reemployment Rights Act was not in effect in 1991, the Veterans Reemployment Rights Act was and that law contained a provision prohibiting any discrimination on the basis of military reserve status. Therefore, the Board found that it still had jurisdiction to hear the enforcement petition. However, the Board found that the agency had fully complied with the earlier initial decision. Haskins v. Navy, PH3443980446-C-1, August 4, 2000.The appellant argued that the agency violated his rights under the Veterans Employment Opportunity Act of 1998 (VEOA) when it hired another candidate with less veteran's preference status. The appellant was disabled veteran entitled to a 10-point veteran's preference and the agency selected a candidate who was entitled to a 5-point veteran's preference. The appellant was unable to provide specific reasoning as to why the agency should not be allowed to select from among the qualified candidates; all of whom had veteran's preference. The Board denied the appellant's claim under the veterans employment law, finding that the law did not guarantee placement in positions, only fair consideration by the selecting official. Spigner v. Air Force, DE3443990252-I-1, September 27, 2000. An individual petitioned the Board requesting that it declare OPM's regulations implementing the Veterans Employment Opportunities Act of 1998 invalid. The petitioner argued that minimum qualifications standards should not apply to individuals being appointed under the 1998 law. The Board rejected the petitioner's argument and found no legislative history to support the position. The Board also found that the regulations issued by OPM creating a Schedule B appointing authority had been rescinded in 1999 when Congress acted to amend the law and place these individuals into competitive service positions. Therefore, the Board found no basis for invalidating OPM's regulations. Ramsey v. Office of Personnel Management, CB1205990065-U-1, October 10, 2000. VIDEOTAPING INTERVIEWS ... INTERNAL SECURITY PRACTICE ... I&I ULPCiting 52 FLRA No. 2 (use of covert video cameras) and 18 FLRA No. 97 (use of sworn statements and polygraph tests), FLRA held that videotaping interviews is "an investigative technique to obtain truthful and reliable information in the conduct of employee investigative interviews. This use of the videotape to discern truth via body language or the demeanor of the witness in investigative interview is as legitimate as obtaining 'truthful and reliable' information through a polygraph test." Although the decision is reserved to management by its management right to determine the agency's internal security practices, FLRA found that the agency was guilty of an impact and implementation (I&I) ULP when it didn't notify the union of its decision to videotape a couple of interviews.As a remedy, it ordered the agency, at the request of the union, to provide those employees who had been videotaped with copies of the videotapes (the existing contract required the agency to provide affected employees with copies of audiotapes) and to discuss the use of any videotapes made at the two locations where the interviews had been videotaped. FLRA also directed the agency to give the union notice, and, upon request, bargain on the impact and implementation of any decision to videotape before videotaping any more interviews with employees at the two locations. Treasury, Customs Service and National Treasury Employees Union, Chapters 143 and 168, DA-CA-60047 and 8, May 16, 2000, 56 FLRA No. 56. VOLUNTARY ACTIONSUsing the rationale first described in Exum v. DVA, 62 MSPR 344 (1994), and Kaiser v. Army, 75 MSPR 440 (1997), the MSPB maintained it had jurisdiction over the termination of a probationary employee. The appellant had been employed for more than 1 year at the Bureau of Prisons when he applied under an OPM vacancy announcement for a term appointment at a higher grade in the Immigration and Naturalization Service, another part of the Department of Justice. He signed a Statement of Understanding for a Term Appointment after accepting and starting in the position, but the Board found this did not prove that he knowingly consented to the loss of career tenure and appeal rights, since it occurred after he relinquished his prior job. The employee was therefore deemed not to have voluntarily accepted the new appointment and retained "the rights incident to the former appointment." The Board remanded the case for further proceedings to allow the appellant an opportunity to develop and prove his discrimination claims. Edwards v. Justice, AT315H990695-I-1, August 8, 2000.WHISTLEBLOWINGOnce again, the Merit Systems Protection Board states that an appellant attempting to allege reprisal for whistleblowing is entitled to notice as to what he or she must show in order to establish Board jurisdiction. Here, the Board's administrative judge issued a standard "acknowledgment order" to the appellant in response to his appeal but did not spell out what evidentiary showing was necessary under the Whistleblower Protection Act. The Board implies that the agency may have been able to cure the judge's error through the agency's pleadings in the case but the pleadings also did not set forth the basis for proving jurisdiction. The case was remanded to a Board regional office to permit the appellant an opportunity to provide appropriate evidence of jurisdiction. Johnson v. Health and Human Services, DC1221000199-W-1, August 21, 2000.According to the Merit Systems Protection Board, among other things, the appellant properly made a nonfrivilous allegation that he disclosed an "abuse of authority" under the Whistleblower Protection Act regarding the handling of his personal grievance against his agency, The agency never resolved the grievance by either granting or denying it from the time it was filed until the appellant retired eleven months later. The appellant claimed that his grievance was variously mishandled, lost, not investigated, and that an agency official told the appellant that he didn't care whether the grievance had merit and that he would "ensure that the appellant never realized any benefit from it." The matter was referred to one of the Board's regional offices for adjudication. Schaeffer v. Navy, PH1221990203-W-1, September 25, 2000. The Merit Systems Protection Board determines that one of its administrative judges erred as a matter of law in concluding that the appellant's disclosures were not protected under the Whistleblower Protection Act because they were made in connection with her required job duties. While the Board also determined that the judge erred in the factual finding that the appellant's disclosures only were made while performing the appellant's duties, the Board discussed at length its rationale of why protected disclosures may be made as part of an employee's job. Here, the appellant's job was to oversee, draft, approve, and assure the proper administration of contracts under Government regulations. In carrying out those duties, she informed appropriate officials (and others outside her chain of command) what the Board described as contracting "potential violations of law, rule, or regulation." The Board remanded the matter to one of its regional offices to consider whether the Board has jurisdiction in the case. Czarkowski v. Navy, DC1221990547-W-2, October 16, 2000. The appellant requested the Court of Appeals for the Federal Circuit to review the decision of an arbitrator upholding his removal for, among other things, "intentional falsification/concealment of a material fact in lying" to a special agent investigating misconduct on the job. The court agreed with the arbitrator in all respects including the arbitrator's finding that the appellant did not have a "reasonable belief" that he had knowledge of a violation of law, rule, regulation, etc. as required by the Whistleblower Protection Act. The court also agreed that the appellant had no right to union representation at his interview with the agency because the agency's investigation was in a "preliminary or background stage" and there were no individualized suspicions concerning the appellant. The union had argued that if the appellant had been given union representation during the interview, the union would have counseled him to tell the truth and he would have followed that advice. Giove v. Department of Transportation, U.S. Court of Appeals for the Federal Circuit, Appeal No. 99-3159, (Fed. Cir., October 31, 2000). The Merit Systems Protection Board determines that a GS-15 employee of the Federal Aviation Administration now has the right to process an individual right of action appeal in a matter that the Office of Special Counsel refused to investigate and the Board previously dismissed during a time that the employee was not covered by Title 5 of the United States Code. Because the law changed in April 2000 and the employee filed within a reasonable time after he learned the law changed, the Board told the employee that he could now take his 1996 allegation of whistleblower reprisal back to the Office of Special Counsel as the first step in an individual right of action appeal. Tarrant v. Department of Transportation, SF1221980058-R-1, November 21, 2000. See also Fickie v. Army under Jurisdiction and Procedures.
Created 27 February 2001 |