United States
Office of Personnel Management
New Developments in Employee
and Labor Relations
August 1999
TABLE OF CONTENTS
Alternative Dispute Resolution
- On July 27, 1999, Janice Lachance, Director, Office of Personnel Management and Janet
Reno, Attorney General recognized the recipients of the first annual Director's Award for
Outstanding ADR Programs.
- On July 27, 1999, the Office of Personnel Management released Alternative Dispute
Resolution: A Resource Guide.
- On July 12, 1999, the Equal Employment Opportunity Commission announced that, effective
November 9, 1999, it was amending its rules for processing Federal sector complaint
processing to require agencies to establish or make available an alternative dispute
resolution program. (See
Alternative Dispute Resolution).
Federal Dispute Resolution Conference
The Federal Dispute Resolution Conference was held in San Antonio, Texas on August
22-26, 1999, with over 1,000 individuals attending. An innovation this year was the
addition of a special attorney track of course work that qualified for continuing legal
education (CLE) credit. (See
Employee/Labor Relations Training).
Family and Medical Leave Act
On May 24, 1999, President Clinton issued a memorandum for the Heads of Executive
Departments and Agencies on New Tools to Help Parents Balance Work and Family. The
memorandum directed the Office of Personnel Management to propose governmentwide
regulations that will allow Federal employees to use up to 12 weeks of accrued sick leave
to care for a family member as defined and intended under the Family and Medical Leave
Act. (See
Family-Friendly Workplace Advocacy Office).
Back Pay
The Federal Circuit reversed the Board's decision on a back pay appeal and remanded the
appeal to the Board for recalculation of the amount of back pay to be awarded. This
appeal, involving an award of back pay when the appellant was not otherwise ready,
willing, and able to work, is a case where OPM sought reconsideration from the Board and
the Board concurred in OPM's interpretation to be reasonable. However, the court found
OPM's interpretation to be unreasonable. (See Pay).
OPM Intervention
On July 19, 1999, OPM intervened in a case (Von Zemensky v. Department of Veterans
Affairs) involving the rights of Veterans' Affairs health care professionals hired under
title 38 who are separated due to reductions in staff levels and/or resources. (See Current Interventions).
EEOC Issues Enforcement Guidance
EEOC has issued enforcement guidance designed to assist employers, including the Federal
Government in dealing with their obligations for providing reasonable accommodations to
qualified individuals with disabilities. (See
Topical Overview).
- On July 27, 1999, Janice Lachance, Director, Office of Personnel Management (OPM) and
Janet Reno, Attorney General, recognized the recipients of the first annual OPM
Director’s Award for Outstanding ADR Programs. Recipients were Department of the Air
Force Headquarters; Bureau of Engraving and Printing, Department of the Treasury; and the
37th Training Wing, Lackland Air Force Base, Department of the Air Force. Programs
receiving Honorable Mention recognition were the National Finance Center, Department of
Agriculture; Bureau of Reclamation, Department of Interior; United States Postal Service;
and the Seattle Federal Executive Board. The award, recognizing outstanding programs for
the resolution of workplace disputes, is an initiative by OPM to help carry out President
Clinton’s May 1998 memorandum encouraging agencies to use ADR.
- Also on July 27, 1999, the Office of Personnel Management (OPM) released Alternative
Dispute Resolution: A Resource Guide. Among other things, the Guide contains
one-page descriptions of more than 80 working Federal ADR programs set up to resolve
workplace disputes (including those recognized as outstanding programs by OPM as noted
above). The Guide, updated from a similar 1994 issuance, contains new information
about shared neutrals programs, descriptions of what administrative appeals agencies such
as the Merit Systems Protection Board are doing to use ADR, and a listing of selected
Internet websites. Printed copies of the Guide may be obtained through the
Government Printing Office rider system. It is also available on OPM’s website at
www.opm.gov/er. This site also contains rider system information.
- On July 12, 1999, the Equal Employment Opportunity Commission announced that, effective
November 9, 1999, it was amending its rules for processing Federal sector complaints to
require agencies to "establish or make available an alternative dispute resolution
program. Such program must be available for both the pre-complaint process and the formal
complaint process." [Section 1614.102(b)(2) of Title 29] This requirement goes into
effect on January 1, 2000, for agencies that do not have ADR programs. [See 64 F.R.
37644.]
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
- Where the Board denies an employee’s request for review of an arbitration award,
the Board lacks authority to either award attorney fees on behalf of the employee or to
enforce the arbitrator’s fees award. In this case, the employee appealed his removal
through the negotiated grievance procedure and the arbitrator, while finding that the
employee was not entitled to backpay, directed the agency to pay reasonable attorney fees.
The arbitration award was appealed to MSPB which denied the request for review. When the
employee filed a motion with the Board seeking either an award of fees or enforcement of
the fee award in the arbitration decision, the Board held that for it to have authority to
award fees, the employee must be a prevailing party before the Board. Since the Board
denied the request for review, this requirement was not met and no award of fees was
possible. Furthermore, since the request for MSPB review was denied, there was no Board
order with which the agency could be directed to comply. Gary Hunter v. Air Force, CB7121970050-A-1,
June 17, 1999.
Contact: Ken Bates, er@opm.gov or (202) 606-2920.
- In this Merit Systems Protection Board case, the appellant was removed from his position
for: (1) unavailability for duty, (2) inability to carry firearms, (3) and failure to
follow regulations. All of these charges related to the appellant’s conviction,
judgment, and sentence for firearms violations. Because the appellant’s conviction,
etc. were vacated on appeal, the Board’s majority analogized this case to the
circumstances in its precedent decisions in Morgan v. Postal Service, 48 M.S.P.R.
607 (1991), and Street v. Department of the Army, 23 M.S.P.R. 335 (1984), which
provide that where an employee is removed for physical inability to perform and recovers
during the pendency of the appeal, the removal must be reversed. In the current case, the
Board said that the charges were "inextricably intertwined" with the criminal
charge, that is, the agency’s charges would not have occurred had it not been for the
criminal charge (later vacated). Vice Chair Slavet dissented, arguing that the
employee’s misconduct clearly occurred, resulting in his unavailability for work as
charged by the agency, and that warranted removal. The Vice Chair thus concluded that the Morgan
and Street cases thus should not apply to the current case. Pawn v. Agriculture, SE075296211-I-1, May 25, 1999.
- In a case where one of its administrative judges mitigated a removal penalty (for misuse
of a government telephone and asking a third party to provide incorrect information about
the improper calls) to a 60-day suspension, the Merit Systems Protection Board majority
ruled that the judge erred by concluding that "the agency failed to show that it [had
given] substantive consideration to a lesser penalty and to relevant mitigating factors
before selecting the removal penalty." The Board’s majority noted that there is
no requirement that agency proposals and decisions contain information demonstrating it
considered all mitigating factors. In addition, the majority noted that lying about
his frequent misuse of government property and attempting to get another to lie as well
was intentional and involved the appellant’s trustworthiness and thus impacted the
agency’s ability to carry out its mission. The majority upheld the removal penalty.
In a dissenting opinion, Chairman Erderich opined that the agency failed to prove that the
153 telephone calls to the Texas Lottery Commission from the appellant were not official
government business. He would have reversed the agencys’ removal action. Lewis v. GSA, DA0752970548-I-1, 5/21/99.
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
CLASSIFICATION OF NON-EXISTENT POSITIONS ... STAFFING PATTERNS
- In a split decision, Member Cabaniss dissenting, FLRA held that a proposal prescribing
the grades of proposed positions is not removed from the scope of bargaining by section
7103(a)(14)(B), but instead deals with section 7106(b)(1) permissibly negotiable staffing
patterns.
This conclusion was based on FLRA’s adoption of
an interpretation of the proposal advanced by the union: namely, that it was the
union’s intent "to define the number of positions under each work area and
define the work performed for each position by assigning the position a title and
grade." After adopting this interpretation, FLRA distinguished this case from its
precedent as follows:
In Point Mugu, the proposal required the agency to "reclassify"
particular positions. Point Mugu, 45 FLRA at 803. In NUSC Newport, the
proposal mandated that the agency "extend" the "career ladder of an
individual assuming the position of the president of [the union]" to a higher grade. NUSC
Newport, 42 FLRA at 1287. The proposal here, in contrast, does not require the agency
to reclassify existing, already-classified positions.
Given this interpretation and distinction, the majority concluded that the proposal
"would not require the agency to classify or reclassify particular existing
positions, and would not require the placement of incumbent employees into the positions
established in the proposal."
The majority seems to be narrowing the meaning to be assigned to
7103(a)(14)(C) in order to give meaning to § 7106(b)(1). That is, the majority appears to
be saying, in effect, that for a 7106(b)(1) staffing pattern proposal to concern a
classification matter under 7103(a)(14)(B), it must either prescribe the classification
for "existing, already-classified positions" or "require the placement of
incumbent employees into the positions established in the proposal." National Association of
Government Employees, Local R3-76 and Defense Logistics Agency, Defense Automated
Printing Service, Philadelphia, PA, 0-NG-2442, May 28, 1999, 55 FLRA No. 88.
Contact: cplmr@opm.gov or (202) 606-2930.
- The location for the Office of Personnel Management’s annual Symposium on Employee
and Labor Relations (SOELR) is to be announced and conference brochures mailed out in
early fall 1999. The brochure (including its enclosed registration form) and other SOELR
update information will also be available on the Office’s home page at www.opm.gov/er.
This comprehensive conference is devoted to recent developments and emerging issues in
employee relations, labor relations, dispute resolution, performance management, and
partnership.
Contact: soelr@opm.gov or (202) 606-4446.
- The Federal Dispute Resolution Conference (FDR) was held in San Antonio, Texas on August
22-26, 1999, with over 1,000 individuals attending. An innovation this year was the
addition of a special attorney track of course work that qualified for continuing legal
education (CLE) credit. In 2000, the conference will be held in Anaheim, California.
Brochures for the conference are usually mailed out in early spring. The brochure, along
with the conference registration form, will be on an Internet website at
http://www.fdr-conference.org/.
Contact: pforner@aol.com or (202) 463-8400, ext. 348.
EXECUTIVE ORDER 12871 NOT AN "ELECTION" TO BARGAIN ON (b)(1) TOPICS
- The D.C. Circuit upheld the Authority’s decision in 54 FLRA No. 43 where the
Authority held that section 2(d) of Executive Order 12871 does not constitute an election
to bargain over section 7106(b)(1) subjects. Although the court didn’t defer to
FLRA’s interpretation of Executive Order 12871 because the Order was outside
FLRA’s domain, its de novo review of the Order resulted in the same conclusion
as FLRA’s. Pointing to the plain language of section 2(d), the court noted that the
Order doesn’t state that the President elects to negotiate, but rather directs
heads of agencies and their subordinates to negotiate on (b)(1) matters.
With respect to the union’s claim that such an interpretation would make it
impossible to enforce the Presidential directive, the court noted that "[a]n
insubordinate agency is subject to Executive Branch enforcement of the EO through
persuasion and, ultimately, termination of the resisting official."
"Because the language of EO 12871 in its entirety is clear, and because the
petitioners provide no reason to depart therefrom, we conclude that EO 12871 does not
constitute a section 7106(b)(1) election. Accordingly, the petitions for review are
denied. National Association of Government Employees, National Association of
Government Employees, Local R1-8, and Patent Office Professional Association v.
Federal Labor Relations Authority, Nos. 98-1313, 98-1317 and 98-1377 (DC Cir, June 25,
1999).
Contact: cplmr@opm.gov or (202) 606-2930.
FAMILY-FRIENDLY WORKPLACE ADVOCACY OFFICE
- On May 24, 1999, President Clinton issued a memorandum for the Heads of Executive
Departments and Agencies on New Tools to Help Parents Balance Work and Family. The
memorandum directed the Office of Personnel Management (OPM) to propose governmentwide
regulations that will allow Federal employees to use up to 12 weeks of accrued sick leave
to care for a family member as defined and intended under the Family and Medical Leave
Act.
OPM was also directed to establish an Interagency Family-Friendly Workplace Working
Group to "promote, evaluate, and exchange information on Federal family-friendly
workplace initiatives." Heads of each Federal agency are to appoint a family-friendly
work/life coordinator to serve as a member of the Working Group. The purpose of the group
will ensure that Federal employees are fully aware of family-friendly personnel
flexibilities (i.e., child and elder care, telecommuting, etc.) to help meet their
personal, life and family responsibilities.
- Child Support Enforcement Briefing. OPM held a child support seminar, "New Tools
for Child Support Enforcement in Federal Agencies" on Thursday, August 5th in OPM's
Alan K. Campbell Auditorium. The briefing was sponsored by OPM's Family-Friendly Workplace
Advocacy Office and the Department of Health and Human Services' Office of Child Support
Enforcement. Work/Life Coordinators, Payroll and Benefits staff, and attorneys heard about
the new materials that have been developed to help Federal employers assist in child
support enforcement. They were also informed about progress being made in legislation
affecting health insurance coverage in child support cases and recent rulings in child
support enforcement cases.
Contact: workandfamily@opm.gov or (202) 606-5520.
- A proposal requiring that the involuntary assignment of overtime be equally shared
between unit and non-unit employees is a mandatory subject of bargaining. FLRA noted that
it has held that a proposal that directly determines (or has a direct effect on
or regulates) the conditions of employment of non-unit employees is outside the
scope of mandatory bargaining. But it distinguishes between proposals that "directly
determine" and proposals that only "affect" the conditions of employment of
non-unit personnel. "That a proposal has an indirect effect on non-unit employees may
relate to its reasonableness or merits, but does not render the proposal outside the duty
to bargain."
FLRA also rejected the agency’s claim that the disputed proposal would regulate
the assignment of overtime work to non-unit personnel:
Nothing on the face of the proposal indicates a direct effect on non-unit
personnel. The Union’s proposal would only require the Agency to assign bargaining
unit members the same or less involuntary overtime than it assigned to non-bargaining unit
persons. It would not directly determine the amount of involuntary overtime that non-unit
personnel (the AGR members) would be required to perform. Although the proposal may well
result in additional overtime work for AGR members, that effect is not enough to lead to
the conclusion that the proposal directly determines the conditions of employment of
non-unit personnel.
FLRA compared the disputed proposal on the assignment of involuntary overtime with
earlier cases dealing with the assignment of parking spaces (53 FLRA at 1338-39) and a
proposal designating the location of a restaurant (54 FLRA at 1381-82). The proposals in
both those cases were found to be mandatory subjects of bargaining even though they
affected the conditions of employment of non-unit employees.
Association of Civilian
Technicians, Granite State Chapter and National Guard Bureau, New Hampshire Air
National Guard, 0-NG-2347, May 27, 1999, 55 FLRA No. 79.
Contact: cplmr@opm.gov or (202) 606-2930.
INTERIM RELIEF
- In this case, the agency failed to make an explicit undue disruption determination when
the appellant was placed on administrative leave rather than returned to the job after
winning his appeal before a Merit Systems Protection Board judge. The Board, however,
applied it precedent in Haebe v. Justice, SF0752970426-I-1, March 9, 1999, [see
June 1999 New Developments, page 6], and determined that the agency had made an implicit
determination by showing a strong overriding interest or compelling reason why he should
not return to the workplace. Here, the appellant’s pattern of rude and discourteous
behavior towards the public and management; the judge’s finding that the appellant
had a mental impairment affecting how he interacts with others; and the agency’s
letter to the appellant offering to help him obtain a disability retirement because he
should not be on the job, all supported the agency’s implicit undue disruption
determination. Lednar v. Social
Security Administration, BN0752970072-I-1, May 21, 1999.
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
- In order to meet the burden of proof when arguing for dismissal based on laches, an
agency must produce evidence which demonstrates how the unreasonable delay prejudiced its
ability to defend against the appeal. After being terminated during her probationary
period in 1990, the employee waited until September 1994 to file an individual right of
action (IRA) appeal with the Office of the Special Counsel (OSC). In November 1997, OSC
notified the employee that it had concluded its investigation of her allegations, and that
she had 65 days to seek corrective action from the Board. Based on the seven year delay,
the Administrative Judge found that the legal doctrine of laches precluded the
employee’s appeal. On review, the Board found that the filing delay was actually
fewer than four years (the amount of time between the employee’s termination and the
subsequent filing of her complaint with OSC). Waiting to file the appeal until the OSC
terminated its investigation, as the employee was entitled to do, did not constitute a
delay subject to the doctrine of laches. The agency, in contending that the doctrine of
laches applied to this case, failed to provide a description of the evidence used to
support its assertion of prejudice. The agency did not identify the witnesses in question
or provide further details as to their availability or ability to recollect specific
events. Mercer v. Health and Human
Services, DE1221980151-W-1, May 17, 1999.
- It is an abuse of discretion when an administrative judge denies an appellant’s
motion to compel the production of documents that appear reasonably calculated to lead to
the discovery of admissible evidence. Specifically, in this case the employee’s
lengthy discovery request included records involving investigations by agencies that were
not the direct recipients of the whistleblower disclosures at issue. The Board found that
these documents may still lead to admissible evidence because the employee’s
disclosures may have led to the investigations by other agencies, or the agency may have
perceived that the appellant was a whistleblower as a result of these investigations. The
employee also sought records relating to whether the agency took any action in response to
alleged misconduct by other individuals who presumably were not whistleblowers. Again, the
Board ruled this request was reasonable because it could lead to the discovery of
admissible evidence relating to whether the agency took similar actions against employees
who were not whistleblowers, but who were otherwise similarly situated to the appellant.
The case was remanded for additional discovery proceedings. McGrath
v. Army, DC1221970930-W-1, July 21, 1999.
- Even in the absence of an approved collective bargaining agreement, if an agency and
union have mutually agreed to implement negotiated grievance procedures, those procedures
are binding and enforceable; as a result, the Board lacks jurisdiction over an
employee’s appeal of the denial of a retroactive within-grade salary increase (WGI).
In 1986, the parties negotiated a written collective bargaining agreement (CBA), portions
of which were disapproved by the agency head. Even though the CBA from 1986 was never
approved, the parties were free to implement portions of the agreement not specifically
disapproved by the agency head, including the section of the CBA pertaining to grievance
procedures. The parties, under a long standing mutual agreement, have been following the
grievance procedures established in the 1986 CBA and therefore have a "past
practice" which has established a condition of employment, meaning the grievance
procedures are binding and enforceable as to both parties. Since the employee was covered
by a grievance procedure under which he was entitled to grieve the denial of his
retroactive WGI, the Board lacks jurisdiction over his appeal. Munson v. Department of Commerce,
DC531D980094-I-1, July 22, 1999.
- In accordance with 39 U.S.C. § 1202, the Board’s jurisdiction over appeals from
United States Postal Service (USPS) employees extends only to managers, supervisors or
confidential-personnel employees. Even those USPS employees who work in areas where there
is not a bargaining unit in existence must prove that he/she is barred, as a matter of
law, from membership in a collective bargaining unit in order to meet the statutory
definition for MSPB appeal rights. Although the Postal Service in this case referred to
the employee’s position as nonbargaining in the written position description,
precedent makes it clear that this general description is insufficient, and that each
determination of this kind must be made on a case-by-case basis and based on the
employee’s actual job duties. Carrier v. Merit
Systems Protection Board and Postal Service, U. S. Court of Appeals for the
Federal Circuit, Appeal No. 983267 (Fed. Cir. July 20, 1999).
- Intolerable working conditions may render an absence from the workplace of more that 14
days involuntary, and thus appealable to the Board as a constructive suspension. After
seeking the assistance of the agency Employee Assistance Program counselor with regard to
the "bizarre behavior" of a co-worker, the counselor advised the four employees
to not return to their work stations. The employees did not return to their work stations
and subsequently petitioned for appeal, alleging that they were forced to leave their work
stations by the intolerable working conditions, and that thus the agency constructively
suspended them. In the initial decision, the administrative judge found that the Board
lacked jurisdiction over the employees’ appeals. She found that the Board’s case
law finding that intolerable working conditions may render a resignation or retirement
involuntary was inapplicable to the situation of alleged enforced leave. In the majority
opinion, the Board also found that when an employee alleges that his/her absence is caused
by such conditions the employee must inform the agency of the existence of the
objectionable conditions, and must request assistance or remediation from the agency. The
agency’s knowledge of the intolerable working conditions, whether actual or
constructive, must be shown in order to establish a culpable connection between the
objectionable conditions and agency’s duty, if any, to alleviate the conditions. The
case was remanded for findings regarding the working conditions and management’s
knowledge of the problem. Note: OPM will be monitoring the outcome of this case and the
implications of the decision on remand. Peoples, Rountree, Brown and Myers v.
Navy, DC0752980361-I-1, DC0752980362-I-1, DC0752980363-I-1, DC0752980364-I-1,
August 6, 1999.
Contact: Jennifer Arbuthnot or Linda Moody, er@opm.gov or (202) 606-2920.
- The appellant, a Postal Window Distribution Clerk, was removed based on charges of
failure to be regular in attendance and absence without leave (AWOL). In the initial
decision, the administrative judge affirmed the agency’s action. Upon review by the
full Board, the case was remanded to the regional office for further adjudication because
the Board determined that there were three unresolved issues: (1) the appellant’s
affirmative defense for race discrimination, (2) a determination on whether or not any of
the absences could have been covered under the Family and Medical Leave Act (FMLA);
and (3) the appellant’s claim of harmful error. In regard to the FMLA issue, the
Board noted that while the appellant stipulated to the misconduct, no reference was made
about his possible entitlement to FMLA in his appeal. Nevertheless, the Board held that
there was evidence on record that should have placed the agency and the administrative
judge on notice that the reasons for the appellant’s absences and the underlying
basis for the agency’s charges, may have been FMLA related. Citing to Ellshoff v.
Interior, 76 M.S.P.R. 54 (1997), and Gross v. Justice, 77 M.S.P.R. 83 (1997),
where the Board held that when the appellant raises nonfrivolous factual allegations
reasonably relating to a FMLA claim, or the agency’s evidence otherwise indicates
possible coverage by FMLA leave, the Board found the administrative judge had the
responsibility to develop the record evidence, as appropriate. In addition, an appellant
is not specifically required to invoke FMLA in requesting covered leave; rather, the
appellant must merely present sufficient evidence to trigger consideration of FMLA
coverage. Thus, the agency bears the burden of proving that it properly denied FMLA leave
in taking a leave-based action against the employee. The Board vacated the initial
decision and remanded the appeal to the regional office for further adjudication. Fairley v. Postal Service, AT0752960416-I-2,
June 23, 1999.
- The appellant alleged that his resignation was involuntary because the agency did not
accommodate his illnesses of depression and heart disease, and denied his request for
extended sick leave or leave without pay under the Family and Medical Leave Act
(FMLA). The administrative judge dismissed the appeal for lack of jurisdiction, finding
that the appellant did not make a nonfrivolous allegation that his resignation was
involuntary due to mental duress. On review, the full Board cited to Ellshoff and Gross
(see Fairley case, above, for reference cites), noting that the agency was required
to provide the appellant with guidance about rights under FMLA; the appellant is not
required to explicitly invoke the FMLA; and, it is sufficient that the appellant make the
agency aware of circumstances that would warrant leave under FMLA. In this case, the Board
found that the appellant’s allegations, if proven, may establish a prima facie
case that the agency knew or should have known that the appellant was requesting long-term
leave under FMLA, and that he was entitled to such leave. Landahl
v. Commerce, SE0752980236-I-1, July 19, 1999.
- The appellant was removed for absence without leave from July 1 through July 31, 1996.
The agency alleged that the appellant failed to report for duty or provide adequate
medical documentation to support his claim of medical incapacity. During the initial
appeal process, the appellant submitted an undated statement received by the Board on
February 6, 1997, which explained that the appellant was prevented from timely providing
the agency with the requested medical documentation because of his medical condition and
difficulty in obtaining the requested information from his physicians at the Department of
Veterans Affairs. In a subsequent submission (undated) to the Board, the appellant raised
the issue of his entitlement to absence under the Family and Medical Leave Act (FMLA), and
alleged that the agency refused to grant him leave based on his serious medical condition.
In the initial decision, the administrative judge affirmed the agency’s action of
removal, finding that the appellant did not submit medical documentation as requested by
the agency and that the appellant did not accept the agency’s offer of a medical
examination in order to provide the necessary medical documentation. On review, the full
Board found that the record as developed in this appeal was not adequate to permit a
determination as to whether the appellant was entitled to LWOP either under the FMLA or
under non FMLA law. The Board held that if, on remand, the administrative judge finds that
the appellant established that due to circumstances beyond his control, the appellant was
prevented from timely submitting medical documentation to the agency, the administrative
judge must consider all of this medical evidence in determining FMLA entitlement. Burge v. Air Force, AT0752970060-I-1, May 4, 1999.
Contact: Martha Hoehn, er@opm.gov or (202) 606-2920.
NO DUTY TO BARGAIN ON THE TERMINATION OF AN UNAUTHORIZED PRACTICE
- The national agreement required that all bargaining unit employees sign in and out of
work sequentially every day on the same form. This agreement-mandated practice was
followed by the local president until February 1994 when, during a reorganization, he
began to spend 100% of his time on union work and, with the permission of his then
supervisor, left a phone number where he could be reached in lieu of signing in and out.
In January 1995 a new supervisor instructed the local president to sign in and out
sequentially. When the union requested bargaining, the supervisor refused, noting that the
nationwide agreement did not allow for arrangements in conflict with the agreement. The
matter got elevated to headquarters level where the Acting Deputy Director for Human
Resources (ADD) said she would not tolerate any arrangements that contradicted the
agreement. When there was no agreement to return to the practice mandated by the national
agreement, the ADD directed the Local President to sign in and out sequentially.
FLRA, in agreement with the ALJ, dismissed the ULP complaint that followed, finding
"that AFGE and HUD . . . prohibited local parties from agreeing to modify the terms
of the nationwide agreement, and that HUD Denver officials engaged in a practice contrary
to the terms of . . . that agreement." (The ALJ had said that the sign in/sign out
practice initiated by HUD Denver and the union for the Local President was in conflict
with the national agreement and that practice did not constitute a practice binding on the
parties to the national agreement in the absence of their knowledge and acquiescence to
the practice.) FLRA said that "there is no basis for finding that HUD Denver
committed a ULP when it insisted on returning, without bargaining, to the practice
mandated by the negotiated agreement." Department of
Housing and Urban Development, Rocky Mountain Area, Denver, CO and American Federation
of Government Employees, Local 3972, DE-CA-50202, June 30, 1999, 55 FLRA No. 99.
Contact: Contact: cplmr@opm.gov or (202) 606-2930.
- The court reversed the Board’s decision on a back pay appeal and remanded the
appeal to the Board for recalculation of the amount of back pay to be awarded. This
appeal, involving an award of back pay when the appellant was not otherwise ready,
willing, and able to work, is a case where OPM sought reconsideration from the Board, and
the Board concurred in OPM’s interpretation of the Back Pay Act. Upon
reconsideration, the Board vacated its earlier decision to award back pay and dismissed
the appellant’s appeal as moot. On appeal before the court, the court found that the
Board based its decision on an unreasonable interpretation of the Back Pay Act. In
addition, the court found that OPM’s interpretation of the Back Pay Act (precluding
an award of back pay to an employee who suffered an unwarranted personnel action, for a
period of time during which he was receiving compensation benefits for injuries suffered
during interim employment) to be unreasonable and not in harmony with the intent of the
Act. U.S. Court of Appeals for the Federal Circuit, No. 98-3401, Martin v. Air Force, July 30, 1999.
Contact: Martha Hoehn, er@opm.gov or (202) 606-2920.
- The Board found that the administrative judge had erroneously held that the
appellant’s medical documentation proved that he had a disability. In its review, the
Board agreed that the agency had sustained its charges of absence without leave (AWOL) and
sleeping while on duty. However, the Board found insufficient evidence that the
employee’s condition of gastroesophageal reflux disease, or the effects of medication
for this disease, substantially limited any major life activity, including the ability to
work. Therefore, the Board reversed the administrative judge’s findings on disability
discrimination. In examining the penalty of removal, the Board took the medical condition
into consideration, as well as the fact that the agency’s progressive discipline had
all occurred within the two months preceding the removal. Finally, the Board noted that
the appellant had taken steps to improve the situation by shortening his commute by moving
closer to the agency and by changing the medication to one that does not have the same
side effects. The Board found all of these factors sufficient to mitigate the removal to a
60-day suspension. Bond v. Energy, NY0752970298-I-1,
June 18, 1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- The appellant argued that two years after his separation by reduction in force, the
Department of Veterans Affairs granted him a 50% service-connected disability rating which
was retroactive to a date before the effective date of his separation. Such a rating would
have placed the appellant in a more advantageous position during the reduction in force.
However, the Board considered that: the original separation had been valid, based on the
facts available to the agency; the employee had been suffering from the same disability
for some 25 years and only filed for a disability rating five months before his separation
date; and, reemploying the appellant would have a widespread impact on other employees.
For all of these reasons, the Board declined to reopen the case.
Burciago v. Army, DA-0351-96-0102-R-1, June 3, 1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- This case was before the Board on remand from the U.S. Court of Appeals for the Federal
Circuit, which reversed the Board’s decision dismissing the appellant’s
restoration appeal for lack of jurisdiction and remanded the case to the Board for
consideration of whether the appellant’s February 11, 1998, removal for poor overall
attendance was a valid removal for cause unrelated to her compensable injury. In reversing
the Board’s original decision, the Court held that when an agency removes an employee
who has a compensable injury solely for refusal to return to work in the absence of an
OWCP suitability determination of an agency’s offer of limited duty following the
employee’s partial restoration from that injury, a sufficient nexus exists between
the compensable injury and the removal to entitle the employee to priority consideration
for restoration. The court further held, however, that, if removal on the second charge,
i.e., poor overall attendance, was a valid removal for cause unrelated to the
appellant’s compensable injury, the appellant would not be entitled to priority
consideration for restoration. Because the Board had not addressed this second charge, the
court remanded the case to the Board to address this issue. On remand the Board found that
the appellant was not entitled to priority consideration for restoration when she
requested reemployment or restoration on February 15, 1991, because she was removed for a
cause unrelated to the compensable injury, i.e., her excessive absences for the 11½
months for which she did not receive OWCP benefits. New
v. Veterans Affairs, PH0353950695-M-1, PH0353910540-M-1, June 24, 1999.
Contact: Callie Chandler, er@opm.gov or (202) 606-2920.
- The Board determined that the agency had effected a constructive suspension without due
process when it failed to provide him with work assignments that met his medical
restrictions (resulting from an on-the-job injury); he stopped coming to work; and the
agency denied his requests for administrative leave. The agency argued that the work
assignments were appropriate and that the employee voluntarily absented himself beginning
in July 1996. However, the Board accepted as evidence the December 1997 decision of the
Office of Workers Compensation which stated that the appellant was not provided with
suitable limited duty assignments in accordance with his medical restrictions in place in
July 1996. Although the Board need not defer to decisions of the Office of Workers
Compensation, the Board noted that neither the agency nor the Merit Systems Protection
Board is vested with the responsibility for determining whether a suitable position is
offered to an employee returning from an on-the-job injury or illness. The agency was
ordered to reinstate the employee with back pay and the case is remanded for development
of the appellant’s arguments on disability discrimination and protected activity. McLain v. U.S. Postal Service, SE3443960525-I-1,
June 17, 1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- A proposal prescribing 4 overall rating levels "impermissibly affects"
management’s section 7106(a)(2)(A) and (B) rights to direct employees and assign
work. The Authority rejected the union’s assertion that the proposal deals with
section 7106(b)(1) methods and means. FLRA found that the proposal affects
management’s rights to direct and assign work. Noting that the union didn’t
claim that the proposal was either a 7106(b)(2) procedure or a 7106(b)(3) appropriate
arrangement, it concluded that "the proposal impermissibly affects management’s
rights" and is therefore "outside the duty to bargain."
Nor did the proposal deal with section 7106(b)(1) methods and means:
Proposals concerning the number and designation of rating levels do not concern how an
agency performs its work or what an agency uses to accomplish its work. Rather, such
proposals concern how an agency evaluates the manner in which its employees perform the
work to which they have been assigned. The Authority has consistently held that an
agency’s determinations as to performance standards and rating levels concern the
work objectives for employees. [Bureau of Public Debt, 3 FLRA 769, 776 cited.] An
agency’s determination of the methods and means of performing work, on the other
hand, concerns how employees do their work and what they will use to accomplish those
objectives.
FLRA accordingly held that the proposal is outside the duty to bargain. American
Federation of Government Employees, Council of GSA Locals, Council 236 and General
Services Administration, 0-NG-2387-001, April 30, 1999, 55 FLRA No. 73.
Contact: cplmr@opm.gov or (202) 606-2930.
- Medical evidence submitted as good cause for an untimely filing must specifically
address the time period of the delay for refiling a petition for review. After missing a
filing deadline of December 1998, the employee provided medical evidence from 1997
indicating that because of a previous injury, which occurred in 1988, he had some
permanent impairment of his memory system. The agency asserted that the medical evidence
provided by the appellant did not address the time period of the delay, and also argued
that the appellant had been able to timely comply with previous deadlines. Distinguishing
this case from Pyles v. Merit Systems Protection Board, 45 F.3d 411, 415 (Fed. Cir.
1995), the Board found that while the employee’s medical condition is permanent, it
was described by the employee’s psychologist as "mild." Unlike the
appellant in Pyles, there is no indication that the employee in this case was
incapable of asking someone to timely file his petitions for review for him or help him
remember to timely refile them. Rockefeller
v. Department of Energy, DE0752980138-I-1, April 28, 1999.
Contact: Ken Bates, er@opm.gov or (202) 606-2920.
- The Board clarified the scope of its jurisdiction in situations involving actions that
are not otherwise appealable, where the appellant raises a claim of a violation of the
Uniformed Services Employment and Reemployment Rights Act. When the appellant was
converted from one temporary appointment to another temporary appointment, the new
appointment was to a lower graded position. The appellant stated in his appeal that his
rights as a veteran had been violated. The administrative judge provided the appellant
with information regarding his burden of proof in making a claim under the Uniformed
Services Employment and Reemployment Rights Act but the appellant did not file any
response. The judge dismissed for lack of jurisdiction and the appellant petitioned to the
full Board. The Board remanded the case, allowing the appellant one more try at defining
the nature of his allegation (whether he was discriminated against due to prior military
service or the agency had denied him a specific right or benefit under 38 USC chapter 43).
The appellant also raised a claim of age discrimination which the Board found it had no
jurisdiction to review. The Board noted that the law permits it to adjudicate complaints
of agency failure to abide by the Uniformed Services Employment and Reemployment Rights
Act or, in otherwise appealable matters, it may consider an affirmative defense argument
under the Act. However, the Board has no jurisdiction to review other claims of
discrimination that an appellant might want to bring in connection with a "pure"
Uniformed Services Employment and Reemployment Rights Act complaint. Bodus v. Air
Force, CH3443970520-I-1, June 16, 1999. (See also Metzenbaum
v. Justice, CH3443990341-I-1, July 9, 1999)
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- The Court of Appeals for the Federal Circuit states that the Merit Systems Protection
Board in Geyer v. Department of Justice (70 M.S.P.R. 682) set forth the appropriate
test for determining whether an agency has met its burden to show by "clear and
convincing" evidence that it would have taken a challenged personnel action in the
absence of the disciplined employee’s protected whistleblowing disclosure. The
factors to be considered are: (1) the strength of evidence in support of the action, (2)
the existence and strength of motive to retaliate on the part of agency officials
involved, and (3) evidence that similar actions are taken against similarly situated
employees who are not whistleblowers. In this case, the court determined that removal of
the employee in the current case from her administrative law judge position for "good
cause" (persistent use of vulgar and profane language, making demeaning comments and
engaging in sexual harassment and ridicule, and that this conduct interfered with
efficient and effective agency operations) would have been taken even if she were not a
whistleblower. Thus, the removal was upheld. Carr v. Social Security Administration,
Appeal No. 98-3244, July 30, 1999.
- The Court of Appeals for the Federal Circuit overturned the Merit System Protection
Board’s decision to discipline the petitioner (Costello) for reprising against a
subordinate for whistleblowing that took place in 1989. The Board, as argued by the
Special Counsel (OSC), had ruled that Costello reprised by proposing to reassign and
actually reassigning the whistleblower. The court noted that Costello was not appointed
until 10 months after the disclosures and that the transfer issues did not come up until
more that two years after the disclosures (too long to justify an inference of cause and
effect). The court also noted, even though Costello may have been annoyed with the
whistleblower and may have been treating him harshly, that the evidence did not support a
conclusion this was because he was a whistleblower. While the manner in which the transfer
issues were treated may have reflected "poor management judgment" on the part of
Costello, the court said they could not be viewed as retaliation. Finally, the court held
that, in cases like this where an individual has been disciplined based on a determination
by the Board that reprisal took place, the proper respondent in proceedings before the
Federal Circuit is the Board (rather that the OSC or the agency). U.S. Court of Appeals
for the Federal Circuit, Costello v. MSPB, Appeal
No. 97-3410, (Fed. Cir., July 16, 1999).
- The Merit Systems Protection Board interprets the Whistleblower Protection Act and
determines that there is no requirement that a (whistleblowing) disclosure be made with
such specificity that the recipient of the disclosure could then conduct an investigation
without returning to the employee for more information. The Board commented that Congress
apparently intended the Act to protect "even partial disclosures" so long as a
reasonable inference of wrong doing could be made. Finding that its administrative judge
had imposed an improper analysis, the case was remanded for further processing to
determine whether the appellants were protected whistleblowers. Keefer, Et. Al. v. Agriculture,
SE122196T0549-W-4, July 6, 1999.
- After publishing a Federal Register notice soliciting amicus briefs on the subject, the
Merit Systems Protection Board holds that the 1994 amendments to the Whistleblower
Protection Act did not expand its coverage to include the suspension of a security
clearance as a "personnel action" covered by the Act. Therefore, the Board lacks
jurisdiction to consider security clearance issues as either part of an individual right
of action appeal (claiming reprisal for whistleblowing) or as an affirmative defense
before the Board in an otherwise appealable action taken under title 5 of the Unites
States Code, Chapter 75. This conclusion supports the arguments of the Office of Personnel
Management and rejects the arguments of the Office of Special Counsel. The Board, did,
however, hold that the garnishment of an employee’s wages is a "personnel
action" covered by the Act. The Board’s holding in Roach
v. Army was applied to another case decided on the same day--Hess v. State,
DC0752971079-I-1. In Hess, the Board ruled that it has limited jurisdiction
over adverse actions, such as the employee’s indefinite suspension, which are based
upon the denial, revocation, or suspension of a security clearance. Thus, in Hess, the Board
found that the allegation that the agency suspended his security clearance and then
indefinitely suspended him for whistleblowing is not properly before the Board. Roach
v. Army, DC122197-251-W-1, June 11, 1999.
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
Listed below are decisions currently pending before a third-party and in which the
Office of Personnel Management has intervened, sought reconsideration or judicial review,
or filed an amicus curiae brief. Decisions received, as well as other developments
since the last report are highlighted in bold. Additional information on each case
can be obtained from the Office of Workforce Relations, Employee Relations Branch at
er@opm.gov or (202) 606-2920.
1. Special
Counsel v. Merrick Malone and Margie Utley, CB1216940015-T-1 & CB1216940016-T-1,
February 9, 1998.
This case involves two employees of the District of Columbia who were found to have
violated 5 USC 7324 (the Hatch Act). Prior to a decision by the Merit Systems Protection
Board, both employees resigned, and the Office of Special Counsel requested that they be
debarred from future employment with the District of Columbia Government. At issue here is
whether the applicable statute prevents the Merit Systems Protection Board from debarring
employees who violate the Hatch Act and therefore limits the penalty to either removal or
suspension. In a February 9, 1998, decision, the Merit Systems Protection Board rejected
the recommended decision of its Chief Administrative Law Judge who had ordered that the
two employees be debarred for 10 and 5 years respectively. The Board held, contrary to the
meaning given this provision for nearly 50 years, that it lacked authority to order the
now former employees debarred from future employment. Since the employees had resigned and
the Board believed there was no other penalty that could be imposed, it determined that
the case was moot and must be dismissed. The Office of Personnel Management has sought
reconsideration of this decision, arguing that the Board erred in its analysis of
the applicable legislative history and prior case law. Decisions of both the Comptroller
General and the former Civil Service Commission held that debarment was authorized.
Without the potential penalty of debarment, individuals who violate the Hatch Act could
avoid serious punishment by simply resigning and then seeking immediate reemployment.
Contact: er@opm.gov or (202) 606-2920.
2. Joyce v. Department of the
Air Force, PH0752950085-B-1, April 9, 1998.
On June 26, 1998, the Office of Personnel Management (OPM) intervened in a case
involving an award of attorney fees to an appellant who refused to come to work after
being ordered to do so, arguing that a lack of accommodation made it unsafe. On appeal, he
argued that he was either constructively suspended or removed from his position. Prior to
an MSPB hearing, the agency provided reasonable accommodation and gave the appellant back
pay for the period of time he had refused to work. The administrative judge (AJ)
thereafter dismissed the appeal. The AJ then dismissed the appellant’s request for
attorney fees, finding that the Board lacked jurisdiction over the matter since the
appellant had voluntarily absented himself from work. The full Board reversed the initial
decision and held that: (1) it need not make a determination of jurisdiction in order to
award fees but need only determine whether an appellant has set forth a prima facie
case of jurisdiction, and (2) it need not analyze the case to determine whether an award
of fees is warranted "in the interest of justice," but instead established a
rebuttable presumption that fees are warranted in cases where the appellant has
established a prima facie case of jurisdiction and the agency unilaterally rescinds
its action.
OPM sought intervention of this case, arguing that the Board exceeded its authority and
ignored the requirement in 5 U.S.C. 1204 (a), which provides that the Board issue
decisions only in those cases in which it has jurisdiction. In Joyce, the Board
held that no jurisdictional determination was necessary. The Board further ignored the
requirement in 5 U.S.C. 7701 that it can award fees only after a finding that the employee
was a prevailing party and that such an award would be in the interest of justice.
Instead, it shifted the burden to the agency to demonstrate that fees were not warranted
in the interest of justice. Contact: er@opm.gov or (202) 606-2920.
3. Office
of Special Counsel v. Department of Veterans Affairs, CB1214940005-C-1, April 26,
1999.
The Merit Systems Protection Board (MSPB) found that the Department of Veterans Affairs
reprised against the employee in this case for making a disclosure protected by the
Whistleblower Protection Act. The nature of the reprisal was a proposed reassignment to
Los Angeles from his job in the state of Washington, an actual reassignment to New York, a
failure to reassign him to Houston as he requested, and his proposed removal for
disability (this proposal was stayed pending consideration of the employee’s claim of
reprisal). The employee asked for and received approval to be carried in a sick leave
status after being reassigned to New York. After about a year, he went from a sick leave
status to workers compensation status and finally to an early voluntary retirement. The
Office of Special Counsel (OSC) argued before the Board that as corrective action for the
prohibited personnel practice (reprisal for whistleblowing), the employee should be
provided back pay for the period of time he was on workers compensation and that sick
leave used after his reassignment should be reinstated to him. The latter action would
require recomputation of his annuity, using the credited sick leave. The Board agreed with
OSC’s arguments and ordered the corrective action requested. On June 1, 1999, the
U.S. Office of Personnel Management (OPM) sought reconsideration of the Board’s
decision on the basis that OPM believes that the remedy violates the Back Pay Act and is
inconsistent with earlier decisions by the Board. With regard to the Back Pay Act,
OPM’s longstanding governmentwide regulations at 5 CFR Part 550 interpreting the Act,
which are entitled to administrative and judicial deference, provide that an employee must
be ready, willing, and able to work in order to receive the remedy of pay and benefits
under the Act. Specifically, the regulations state that when computing back pay, an agency
may not include "[any period during which an employee was not ready, willing, and
able to perform his or her duties because of an incapacitating illness or injury."
Clearly, the appellant was not able to work during the period he received workers
compensation and during the sick leave period. Contact: er@opm.gov or (202) 606-2920.
4. Von Zemensky v. Department of Veterans Affairs, PH0351980078-I-1, April
28, 1999.
On July 19, 1999, OPM intervened in a case involving the rights of Veterans’
Affairs health care professionals hired under title 38 who are separated due to reductions
in staff levels and/or resources. The initial decision which prompted OPM’s
intervention held that the agency’s termination of the appellant’s services due
to a reduction in resources was invalid because the agency failed to provide the employee
with reduction in force procedures established under 5 USC §§3501-04 and 5 CFR part 351.
This decision was issued following a remand from the full Board in February 1999 in which
the Board held, in response to an interlocutory appeal, that title 38 employees were
entitled to reduction in force procedures and rights laid out under title 5. OPM finds no
reference within the reduction in force statute or the implementing regulations that would
provide coverage for title 38 employees. Congress excluded those employees from the
coverage of most of the personnel provisions that cover other employees, including RIF
procedures and protections, and the current decision creates an erroneous interpretation
of statute and OPM regulations. Contact: er@opm.gov or (202) 606-2920.
EEOC Enforcement Guidance: Reasonable Accommodation and Undue
Hardship Under the Americans with Disabilities Act
In March 1999, the Equal Employment Opportunity Commission (EEOC) issued enforcement
guidance designed to assist employers, including the Federal government, in dealing with
their obligations for providing reasonable accommodations to qualified individuals with
disabilities. The guidance covers a broad range of topics from defining what is, or
isn’t, reasonable accommodation to providing technical instructions for
investigators.
For Federal agencies, the guidance offers a look into the current policies of the
Commission and incorporates much of the EEOC’s caselaw into one document, presented
in an easy-to-read question and answer format. Agencies would be well advised to review
the guidance and make it available to supervisors and managers or provide an edited
version to supervisors and managers that highlights those issues for which they have the
greatest responsibility.
A significant portion of the guidance is given to the process of requesting reasonable
accommodation. Some agencies may be surprised to read just how liberally the EEOC is
currently interpreting what constitutes a request by an employee. Additionally, the
guidance reiterates the Commission’s current caselaw regarding the limitations on
agency requests for medical documentation in support of requests for reasonable
accommodation. Supervisors should be informed that the Commission is looking carefully at
how long it takes an individual supervisor to respond to requests for accommodation.
The enforcement guidance also covers many methods of providing reasonable accommodation
such as job restructuring, adjustments to work schedules and the modification of work
place policies. Most significant in this section of the guidance is the Commission’s
new policy on reassignment, the "reasonable accommodation of last resort."
Despite the current EEOC regulations addressing reassignment at 5 CFR 1614.203(g), the
guidance instructs agencies that reassignment must be considered to all vacant positions
in the agency, not just in the local commuting area or within the control of one person
with hiring authority. However, the guidance also makes clear that employees must pay the
costs associated with relocating unless the agency has an existing policy that provides
payment for relocation under these circumstances. EEOC anticipates issuing regulations in
the near future which will bring 5 CFR 1614 into conformity with its guidance. On a
practical basis, agencies who are considering reassignment as a form of accommodation
should enter into a discussion with the employee regarding whether the employee would move
to a new location. If not, then a search for vacancies within the local area should be
sufficient.
The guidance also provides instruction on what constitutes undue hardship and provides
employers with some benchmarks for analyzing the potential cost and impact of a particular
accommodation on the organization. Finally, the guide includes a brief listing of
resources for employers to enable them to access information on reasonable accommodation.
The guidance is available on EEOC’s website at www.eeoc.gov. The EEOC’s homepage
contains a listing for enforcement guidance on many topics.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
Agencies having general questions concerning this publication,
including suggestions for improvement, are encouraged to call Callie Chandler or Ken
Bates on (202) 606-2920.
Other questions or comments may be mailed to the Employee Relations Branch, U.S.
Office of Personnel Management, Room 7425, Theodore Roosevelt Building, 1900 E Street,
NW., Washington, DC 20415-2000. You may call us at (202) 606-2920; fax (202)
606-0967; or email er@opm.gov.
Created 21 April 2000
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