United
States
Office of Personnel Management
New Developments in Employee
and Labor Relations
December 1999
TABLE OF CONTENTS
OPM Sets Date for SOELR 2000 Conference
The Office of Personnel Management’s 2000 Symposium on Employee and Labor
Relations (SOELR 2000) will be held in Denver, Colorado on March 7-10, 2000. The brochures
for the conference were mailed out in November and the brochure (including its enclosed
registration form) and other SOELR update information is also available on the
Office’s home page at www.opm.gov/er. (See Employee/Labor Relations Training).
Reaffirmation of Labor-Management Partnerships
On October 28, 1999, President Clinton issued a memorandum for
heads of executive departments and agencies . This memo reaffirmed his belief that
cooperation between Federal agencies and their unions could help create a Government that
works better, costs less, and makes a positive difference in the lives of the American
people. This belief was first laid out in Executive Order 12871, issued in October 1993.
(See Topical Overview).
‘Limited Personal Use’ of Government Office Equipment
The Federal Chief Information Officers (CIO) Council has approved
a "Recommended Executive Branch Model Policy/Guidance on ‘Limited Personal
Use’ of Government Office Equipment - including information technology. The guidance
sets out a general policy on limited use of government office equipment for personal needs
and also discusses inappropriate personal use of the equipment. The recommended guidance
provides that such limited personal use must not lead to loss of employee productivity,
interfere with official duties and should result in only minimal additional expense to the
Government. (See ‘Limited Personal Use’ of Government Office Equipment).
John N. Sturdivant National Partnership Award
The National Partnership Council presented its 1999 John N.
Sturdivant National Partnership Award to ten Federal agency labor-management partnerships
at an awards ceremony that was held in OPM’s auditorium on September 15, 1999. The
award ceremony was followed by a reception in honor of the partnerships being recognized.
(See Partnership).
Sexual Harassment Penalty
In a long-standing case, the Merit Systems Protection Board
applied the decision of the Court of Appeals for the Federal Circuit in Lachance v.
Devall, No. 98-3213, May 20, 1999, and determined, contrary to the Board’s
earlier decision, that removal was the appropriate penalty for sexual harassment by
appellant Devall. (See Charges and
Penalties).
- The Board majority agreed with the Office of Personnel Management's (OPM's)
reconsideration request and found that a substantive jurisdictional finding is required in
order to award attorney fees since there is no unequivocal expression by Congress that
attorney fees may be awarded against the United States in the absence of Board
jurisdiction. The Board also agreed with OPM that the reason set forth in Joyce
of preserving the Board's analytical resources may not be used to circumvent a
statutorily-required jurisdictional finding. The Board will therefore, no longer apply the
holding in Joyce. Instead, the Board determined that the holding in Shaw,
that a substantive jurisdictional finding is required in order for the Board to award
attorney fees, is good law and no longer overruled.
However, the Board disagreed with OPM's contention that an appellant cannot be a
prevailing party unless he or she has obtained relief through an enforceable judgement,
consent decree, or settlement. While this is the definition of prevailing party supplied
by the Supreme Court in Farrar v. Hobby, 506 U.S. 103 (1992), the Board found
support in various circuit courts for its broader definition. That definition holds that
where the Board has jurisdiction over the appeal, the agency has unilaterally rescinded
its action, i.e., returned the appellant to the status quo ante, and the appellant has
incurred attorney fees, there is a rebuttable presumption that fees are warranted in the
interest of justice under the "knew or should have known" Allen
category. The Board remanded this case for a jurisdictional hearing. Joyce v. Air Force and Office
of Personnel Management, PH0752950085-B-1, October 5, 1999.
See also Joyce v.
Department of the Air Force and Office of Personnel Management under Current
Interventions.
Contact: Ken Bates, er@opm.gov or (202) 606-2920.
- Where an agency fails, six months after the issuance of a compliance order, to present
evidence that it had paid the employee appropriate interest on a back-pay award, the Board
not only finds the agency in noncompliance, but orders the agency to identify the
individual at the agency responsible for ensuring the compliance. This decision
illustrates the Board's authority under 5 USC § 1204 (e)(2)(A) to direct that the salary
of the individual responsible for noncompliance be stopped. Morton v. Postal Service,
AT0752950209-C-1, July 30, 1999.
Contact: Linda Moody, er@opm.gov or (202) 606-2920.
- The Federal Labor Relations Authority (FLRA) turned down the agency's (Customs Service)
exceptions to an award in which the arbitrator found the agency violated the regional and
national agreements when it permitted National Guard personnel to independently perform
certain inspectional activities. (The arbitrator found that both agreements, dealing with
using National Guard personnel in a support capacity at ports of entry, require that
National Guard personnel be under the direction and control of Customs personnel.) As a
remedy, the arbitrator ordered "back overtime pay, with interest . . . to all
adversely affected [Customs Service] employees . . . ."
The Federal Labor Relations Authority, in finding that the award wasn't inconsistent
with the agency's right to determine its budget, noted that the award didn't prescribe a
program, operation or dollar amount to be included in an agency's budget with respect to
overtime. Moreover, the agency didn't provide any financial data that would enable the
Federal Labor Relations Authority to determine whether the order requires significant and
unavoidable cost increases without compensating benefits.
Although the award "affected" the right to assign work, it did not
"abrogate" that right. "[T]he agreements only preclude the Agency from
assigning National Guardsmen to the [two exits at issue] if a Customs employee is not
concurrently assigned. . . . [Thus] the Agency has retained its right to determine when
and if National Guard personnel, and/or its own personnel, should be utilized."
The Federal Labor Relations Authority held that the award was consistent with the Back
Pay Act. A finding of a contract violation satisfies the "unjustified or unwarranted
personnel action" requirement. The missed overtime constitutes a withdrawal or
reduction of an employee's pay, allowances, or differentials. Moreover, "there is no
requirement in the [Back Pay] Act or its implementing regulations for the arbitrator to
identify the specific employees entitled to backpay as a result of the unwarranted
action."
Nor did the award result in an illegal windfall. The Federal Labor Relations Authority
noted that 19 CFR 24.16(h) provides that back pay overtime awards don't apply to any pay
cap calculations. The agency, moreover, didn't provide a copy of Article 22 of the CBA
that it claimed was violated by the award.
Finally, the agency's essence argument was rejected because the arbitrator's
interpretation wasn't implausible, irrational, or unconnected to the agreements' wording. U.S.
Customs Service, El Paso, Texas and National Treasury Employers Union, Chapter
143, 0-AR-3074, June 30, 1999, 55 FLRA No. 97.
Contact: Contact: lmrd@opm.gov or (202) 606-2930.
- The D.C. Circuit turned down the union's petition for review of 54 FLRA No. 70, in which
the Authority held that the agency did not commit an unfair labor practice (ULP) when it
refused to grant official time for lobbying purposes.
In 54 FLRA No. 70, the General Counsel accused the agency of "repudiating" a
contract provision providing official time for lobbying purposes when it refused a union
request for official time for eleven union representatives to meet with Members of
Congress to discuss "matters of interest to the Union and the employees it
represents." Although, under then-existing case law, official time for lobbying
purposes was a negotiable condition of employment, the Authority found persuasive the
agency's argument that the contract provision was unenforceable because inconsistent with
section 8015 of the 1996 DOD Appropriations Act, which banned the use of official time for
lobbying purposes. The unfair labor practice was dismissed because the provision was
unenforceable and consequently couldn't be "repudiated."
The union appealed, arguing that: (1) the Appropriations Act could not repeal the
provisions of the FSLMRS by implication, (2) the Authority "overlooked its obligation
to reconcile the statutes," (3) FLRA's interpretation raises a First Amendment
question, and (4) the FSLMRS is more specific than the Appropriations Act.
The court noted that "none of these objections, none of these arguments, was ever
urged until the case arrived in this court." Although the Appropriations Act argument
had been unanticipated by the union, the court noted that it didn't seek to file a reply
brief under 5 CFR 2429.26(a) or ask the Authority to reconsider its decision.
It is true that we have considered and ruled on objections first raised on judicial
review when the FLRA rested its decision on a ground neither party had argued, so long as
a request for reconsideration appeared clearly doomed. . . . The situation here is not
comparable. In the first place, the FLRA did not raise the Appropriations Act;
the Defense Department argued the point to the agency. Second, it is not so plain that a
request for reconsideration would have been futile.
The court, noting that 5 U.S.C. § 7123(c) bars the court from considering objections
that have not been urged before FLRA unless the failure to urge the objection(s) is
excused because of extraordinary circumstances, held that "[t]he particular 'failure
or neglect' encountered here cannot be excused. There are no extraordinary circumstances.
And so the petition for judicial review must be denied." Georgia State Chapter
Association of Civilian Technicians v. Federal Labor Relations Authority, No.
98-1452 (D.C. Cir, August 3, 1999).
Contact: lmrd@opm.gov or (202) 606-2930.
- In setting the penalty of removal in this case, the agency relied on two past
disciplinary actions for similar misconduct--a 3-day suspension and a 10-day suspension. A
Merit Systems Protection Board Administrative Judge determined that the agency could not
rely on this past record because it did not satisfy the criteria established by the Board
in Bolling v. Air Force, 9 M.S.P.R. 335 (1981). Bolling discussed the
level of review the Board would give if an appellant challenged the validity of his or her
past record. In this case, however, the appellant did not challenge the record. While
noting that Bolling did not directly address such a circumstance, it
"apparently" approved the rule set up by the Office of Personnel Management's
former Federal Personnel Manual that when an appellant does not challenge the past record,
"only the occurrence of that action need be verified." The Board adopted this
rule and determined that evidence confirmed the occurrence of the past discipline and was
thus properly used in determining the penalty in this case. The Board also overruled its
judge and determined that removal was the appropriate penalty. Holland v. DOD, PH0752990010-I-1, August 17, 1999.
- In a long-standing case, the Merit Systems Protection Board applies the decision of the
Court of Appeals in the Federal Circuit in Lachance v. Devall, No. 98-3213, May
20, 1999, to appellant Devall and determined, contrary to its earlier decision,
that removal was the appropriate penalty in this case. The appellant had been removed for:
(1) sexual harassment, (2) unauthorized use of another's property, and (3) inattention to
duty. The Board originally mitigated the penalty to a 90-day suspension after sustaining
only the first two charges and despite testimony by the agency's deciding official that he
considered the sexual harassment charge the primary basis for the removal penalty. The
U.S. Office of Personnel Management sought reconsideration of this outcome by the Board
and ultimately prevailed in the matter at the Federal Circuit. Devall v. Navy, DA0752950794-M-1, September 1, 1999.
- In this case, the appellant was removed based on three charges. A Merit Systems
Protection Board Administrative judge sustained two of the charges and mitigated the
penalty to a 30-day suspension. The Board noted that after the judge's decision, the Court
of Appeals for the Federal Circuit ruled in Lachance v. Devall, No. 98-3213, May
20, 1999, that the Board may not independently determine penalties but may mitigate to the
maximum reasonable penalty. The Board applied Devall and found that the agency would have
removed the appellant for the two sustained charges and that removal remains a reasonable
penalty. Hernandez v. Agriculture,
DE1221980404-W-1, September 10, 1999.
- The appellant was removed for (1) failure to follow leave procedures, (2) absence
without leave or AWOL, and (3) unauthorized use of government property. The Merit Systems
Protection Board determined that the first two charges did not involve different
misconduct or elements of proof and must be "merged" into one charge--AWOL. (The
AWOL only occurred because the appellant failed to follow leave procedures.) The Board
sustained the charges but mitigated the removal to a 30-day suspension because of the
agency's improper reliance on earlier charges of AWOL that had not been subject to
disciplinary action. The "old" AWOL was not noted in the appellant's proposal or
decision letters on the removal action and came up for the first time through testimony by
the agency's proposing and deciding officials at the Board hearing in the case. They each
stated they relied on the "old" AWOL in setting the penalty. Westmoreland v. Veterans Affairs,
CH0752970692-B-1, September 30, 1999.
- The agency removed the appellant from her supervisory position for borrowing money from
subordinates. The appellant also borrowed money from other supervisors and tried
unsuccessfully to borrow from other subordinates. The agency did not charge the appellant
with the latter misconduct but instead clearly put the appellant on notice that those
incidents were used only in determining the severity of the penalty. The Merit Systems
Protection Board approved of the agency's actions. In response to the appellant's argument
that her penalty was disparate from that imposed on others, the Board noted that,
"unless the agency knowingly treated similarly situated employees differently or
began levying a more severe penalty for a certain offense without giving notice of the
change in policy," there was no basis for reversal or mitigation of the penalty. The
Board also noted that its Administrative Judge erred in stating that an appellant's
allegation of disparate penalties is an "affirmative defense." The removal was
upheld. Vargas v. Postal Service,
SF0752980496-I-1, October 5, 1999.
- The agency removed the appellant based on two charges: (1) failing to follow written
regulations, rules, procedures, and directives and (2) failure to follow verbal directives
and lying to his supervisor. The Merit Systems Protection Board upheld the first charge
but determined that the second charge was really two charges. Here, the Board said the
second charge describes two separate acts of misconduct that are not dependent upon each
other and do not comprise a single, inseparable event. Thus, the Board "split"
the second charge into two and considered them individually. The first part, failure to
follow verbal orders was upheld, and the second part, lying to the supervisor, was not
upheld. Even though all the charges were not upheld, the Board found no basis to mitigate
the penalty. Bryant v. Army, DC0752980736-I-1,
October 22, 1999.
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
- FLRA normally doesn't determine the unit status of a vacant position. (See Bureau of
the Mint, 6 FLRA 52 (1981). However, under certain circumstances a FLRA Regional
Director (RD) can determine the unit status of a vacant position. In FLRA's words:
This case raises the issue of whether an RD must resolve a representation issue
concerning a vacant position where the unit determination is a collateral issue necessary
to the resolution of a grievance at arbitration. We conclude that the RD shall determine
the unit status of a vacant position when [1] both parties agree or [2] the arbitrator
decides that the unit determination is necessary to the resolution of a grievance at
arbitration. In such event, the grievance must be placed in abeyance pending a decision on
a petition for clarification of the unit.
The above decision is an extension of FLRA's decision in Headquarters, XVIII
Airborne Corps and Fort Bragg, 34 FLRA No. 6, where it held that FLRA would determine
the unit status of a vacant position in order to determine the arbitrability of a
grievance. FLRA there said that the "absence of a decision concerning the grievant's
bargaining unit status would frustrate the Statute's policy favoring the resolution of
employee grievances through arbitration." That reference to "arbitrability"
is now extended to encompass any "collateral issue necessary to the resolution of a
grievance at arbitration." U.S.
Department of Veterans Affairs and National Association of Government Employees,
AFL-CIO, SEIU, BN-BP-80051, August 31, 1999, 55 FLRA No. 132
Contact: lmrd@opm.gov or (202) 606-2930.
- The Office of Personnel Management's 2000 Symposium on Employee and Labor Relations
(SOELR) will be held in Denver, Colorado on March 7-10, 2000. The brochures for the
conference were mailed out in November and the brochure (including its enclosed
registration form) and other SOELR update information is also 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. SOELR 2000 will offer 10 all-day
preconference workshops and more than 40 separate breakout topics during the conference.
Contact: soelr@opm.gov or (202) 606-4446.
- The annual Federal Dispute Resolution Conference (FDR) will be held in Anaheim,
California on August 20-24, 2000. 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/. This conference is oriented toward
equal employment opportunity specialists, personnelists, and attorneys.
Contact: pforner@aol.com or (202) 463-8400, ext. 348.
- OPM issued The Elder Care Connection - A Guide for the Federal Workplace in
July 1999. The Elder Care Resources (ECC) is a resource guide of elder care to help
Federal employees and caregivers with elder care dependent care needs services and
providers located in the Washington, DC, Maryland and Northern Virginia areas. This
publication promotes the awareness and importance of elder care and aging services and
programs by providing referral information on topics as: caregiving management, community
resources, Federal and national organizations, financial assistance and mortgage services,
health and wellness services, home assistance and modification, insurance, legal matters,
living options and publications.
- OPM issued Part-time Employment and Job Sharing Guide in August 1999. This
Guide outlines and provides information on how to successfully manage and/or participate
in part-time employment and job sharing arrangements. Some topics covered include:
defining part-time employment and job sharing; benefits for permanent part-time employees
such as leave, retirement, health and life insurance; and how a reduced schedule affects
personnel issues such as pay, adverse actions/grievances, service credit and reduction in
force. The Guide also provides new information on using USAJOBS to easily locate a
consolidated list of jobs that are being or may be filled on a part-time basis.
- OPM's Family-Friendly Workplace Advocacy Office sponsored its first meeting of the
Interagency Family- Friendly Workplace Working Group on October 5, 1999, at OPM. The
establishment of this group was mandated in President Clinton's May 24th memorandum,
"New Tools to Help Parents Balance Work and Family", which, among other things,
directed the head of each executive department and agency to appoint a family-friendly
work/life coordinator to serve as a member of the Working Group. Work/life coordinators
are charged with making sure that Federal employees are aware of the full range of
family-friendly options available to help them meet their personal and family
responsibilities. They will also provide information about resources and programs that are
currently available in their communities. The Working Group will promote, evaluate, and
exchange information on Federal family-friendly workplace initiatives, with technical
assistance and facilitation provided by the Family-Friendly Workplace Advocacy Office.
Contact: workandfamily@opm.gov or (202) 606-5520.
- In a 5-4 decision, the Supreme Court, relying on (1) the plain text of the FSLMRS, (2)
court deference to FLRA's reasonable interpretations of the FSLMRS, and (3) Congress'
countervailing labor-management policy concerns (as opposed to the policy concerns of the
Inspector General Act), held that Office of Inspector General (OIG) agents are
representatives of the agency for the Weingarten purposes of § 7114(a)(2)(B).
The court stressed that it was not passing on various FLRA rulings on the scope of
section 7114(a)(2)(B). It noted, in this connection, that the 4th Circuit had held that
various proposals placing limitations on the manner in which IG agents could conduct
investigatory interviews were inconsistent with the Inspector General Act. But the Supreme
Court emphasized that "[t]he process by which the scope of § 7114(a)(2)(B) may
properly be determined . . . [is a question] not now before us."National Aeronautics and Space
Administration et al. v. Federal Labor Relations Authority, et al., Supreme
Court, No. 98-369, June 17, 1999.
Contact: lmrd@opm.gov or (202) 606-2930.
- The appellant had obtained mitigation of the removal action against him through his
appeal to the Board. He later filed an enforcement petition, alleging that his directed
reassignment to another city violated his entitlement to be placed as nearly as possible
in the status quo ante, within the terms of the Board's order directing his demotion. The
Board found the agency had compelling, overriding reasons for not reinstating the
appellant at his former facility, since he had been barred from entry there by the base
commander on the basis of two incidents where he had inappropriately displayed weapons on
the base. These were matters unrelated to the original removal action, and constituted a
sufficient basis for the agency's directed reassignment action. The agency was therefore
in compliance. Galliart v. Treasury,
SF-0752-96-0729-C-1, September 15, 1999.
Contact: Linda Moody, er@opm.gov or (202) 606-2920.
- The Federal Chief Information Officers (CIO) Council has approved a "Recommended
Executive Branch Model Policy/Guidance on 'Limited Personal Use' of Government Office
Equipment - including information technology. The guidance sets out a general policy on
limited use of government office equipment for personal needs and also discusses
inappropriate personal usage of the equipment. The recommended guidance provides that such
limited personal use must not lead to loss of employee productivity, interfere with
official duties and should result in only minimal additional expense to the Government.
Among the listed examples of inappropriate personal uses are: use that could cause
disruption of government services or operations; the creation, viewing, or storage of
sexually oriented materials; and the use of such equipment for any fundraising activity.
The guidance states that it is only a model and each agency should "assess their
needs and responsibility as they relate to mission, security, budget, workload, public
contract, etc. in determining the extent to which this policy is established and
implemented." The guidance also notes that agencies will need to, early on, talk with
their unions and review collective bargaining agreements on how to apply the union's use
of the equipment under those conditions. The model policy can be accessed at:
http://cio.gov/CIOdoc.htm.
Contact: Ken Bates, er@opm.gov or (202) 606-2920.
- A proposal prescribing 4 overall rating levels "impermissibly affects" (i.e.,
"directly interferes with") management's section 7106(a)(2)(A) and (B) rights to
direct employees and assign work. FLRA said the following in rejecting the union's claim
that the proposal dealt with 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. . . . An agency's determination of the methods and means of
performing work, on the other hand, concerns how employees will do their work, and what
they will use, to accomplish those objectives.
American
Federation of Government Employees, Council of GSA Locals, Council 236 and General Services Administration,
0-NG-2387-01, April 30, 1999, 55 FLRA No. 73.
Contact: lmrd@opm.gov or (202) 606-2930.
- The national agreement requires all bargaining unit employees to sign in and out of work
sequentially every day on the same form. This was followed by the local president until
February 1994, during a reorganization, when he began to spend 100% of his time on union
work and, with the permission of his 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 the headquarters level where the Acting Deputy Director for Human
Resources said she would not tolerate any arrangements that contradicted the agreement.
FLRA dismissed the ULP complaint, finding "that AFGE and HUD in Article 34
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 Article 17 of
that agreement. Accordingly, there is no basis for finding that HUD Denver committed a ULP
when it insisted on returning without bargaining to the practice mandated by Article
17." (Emphasis added.) Department of
Housing and Urban Development, Rocky Mountain Area and American Federation of
Government Employees, Local 3972, DE-CA-50202, June 10, 1999, 55 FLRA No. 99.
Contact: lmrd@opm.gov or (202) 606-2930.
- The National Partnership Council presented its 1999 John N. Sturdivant National
Partnership Award to ten Federal agency labor-management partnerships at an awards
ceremony that was held in OPM's auditorium on September 15, 1999. The award ceremony was
followed by a reception in honor of the partnerships being recognized. There were six
award winners and four honorable mention citations (a list of the winners is below).
Director Lachance hosted the event.
1999 John N. Sturdivant National Partnership Award Winners
National Partnership Award (in alphabetical order)
1. Defense Contract Management Command (DCMC) Raytheon Tucson and the American
Federation of Government Employees (AFGE) Local 3973.
2. Food and Nutrition Service (FNS), Western Region, USDA and the National Treasury
Employees Union (NTEU) Chapter 227.
3. IRS North Central District and the National Treasury Employees Union (NTEU) Chapters
2, 8 and 29.
4. Overton Brooks VA Medical Center, Shreveport, Louisiana and the American Federation
of Government Employees (AFGE) Local 2525.
5. United States Mint and the American Federation of Government Employees (AFGE) Locals
51, 608, 695, 1023, 3653, 3740.
6. Veterans Affairs (VA) Regional Office, Waco, Texas and the American Federation of
Government Employees (AFGE) Local 2571.
Honorable Mention Citation (in alphabetical order)
1. Marine Corps Base, Camp Lejeune, North Carolina and the American Federation of
Government Employees (AFGE) Local 2065.
2. U.S. Army Training Center and Fort Jackson (USATC & Fort Jackson) and the
American Federation of Government Employees (AFGE) Local 1909 and National Federation of
Federal Employees (NFFE) Local 1214.
3. USDA-Forest Service and the National Federation of Federal Employees (NFFE) Forest
Service Council.
4. Veterans Affairs Medical Center, Kansas City, Missouri and the American Federation
of Government Employees (AFGE) Local 2663.
Contact: lmrd@opm.gov or (202) 606-2930.
- The Federal Labor Relations Authority (FLRA) turned down agency exceptions to an award
in which the arbitrator found that the agency violated the collective bargaining agreement
(CBA) when, without giving notice to the union at the regional level, it based performance
awards on a lower percentage of annual salary than previously (from 2% to 1% for
outstanding ratings and from 1% to .5% for highly successful ratings) and ordered backpay
for the adversely affected employees.
The arbitrator had found that the CBA as a whole required negotiations over a decision
to change a past practice. FLRA rejected the agency's "essence" and Back Pay Act
exceptions. Regarding the latter, it noted that the violation of a CBA is an unjustified
or unwarranted personnel action and, based on the arbitrator's factual findings to which
FLRA deferred, there was a causal connection between the unjustified action and the loss
of pay. General Services Administration and American Federation of Government
Employees, Local 2431, 0-AR-3093, May 28, 1999, 55 FLRA No. 84.
Contact: lmrd@opm.gov or (202) 606-2930.
- FLRA turned down the union's exceptions to an award in which the arbitrator held that he
could not consider a claim that the agency violated the Rehabilitation Act by not
providing reasonable accommodation (for an employee with an obsessive-compulsive disorder)
because the union failed to sufficiently raise this issue at the outset of the grievance.
FLRA said the following:
When an arbitrator finds that a grievance does not meet the specificity requirements of
the parties' agreement and, consequently, declines to address the merits of that legal
claim, the award is a procedural arbitrability determination. . . . An arbitrator's
determination of procedural arbitrability of an issue is subject to challenge only on
grounds other than those that directly challenge the procedural arbitrability
determination itself. [FLRA cited 51 FLRA No. 40 where it said that such grounds include
bias on the part of the arbitrator or a showing that the arbitrator exceeded his
authority.]
American
Federation of Government Employees, Local 703 and Army Armament and Chemical
Acquisition and Logistics Agency, 0-AR-3060, May 2, 1999, 55 FLRA No. 87.
Contact: lmrd@opm.gov or (202) 606-2930.
- The agency removed the appellant from Federal service based on unacceptable performance.
On appeal, the administrative judge found that the agency met its burden in proving
unacceptable performance but reversed the action based on disability discrimination. The
administrative judge found that the appellant suffered from the disability of depression
but failed to state what major life activity was substantially limited by the disease. The
full Board found that the appellant's general statements regarding stress and frustration
did not constitute a significant limitation on his ability to work. Further, his statement
that he was able to work after being detailed to a different supervisor during the time
between the conclusion of the performance improvement period and his removal failed to
demonstrate that he was generally foreclosed from his line of work. Vyas v. Army, PH0432970168-I-2, September 2, 1999.
- The Board sustained an agency's removal of an employee and reversed the administrative
judge's finding that the agency had discriminated against the employee based on her
medical conditions of bipolar disorder and depression. The appellant was a telephone
operator in a Medical Center. The agency proved its charges of appearing sleepy while on
duty, misdirecting an emergency "code blue" team; and acting in an inappropriate
manner toward a volunteer. However, the administrative judge found that the appellant
demonstrated that she suffered from bipolar disorder and depression and that the agency
had discriminated against her by failing to reasonably accommodate those conditions. The
full Board rejected this analysis and cited numerous court and Equal Employment
Opportunity Commission cases that stand for the principle that an employee is not
immunized from discipline simply on the basis of having a disability. Because the agency
was able to demonstrate that similar disciplinary action would have been taken against any
employee who acted inappropriately and endangered patient safety, the Board sustained the
removal action. Laniewicz v. Veterans Affairs,
PH0752970016-I-1, September 14, 1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- The Merit Systems Protection Board reopened this appeal on its own motion in order to
make clear its position on an individual's appeal rights once a reduction in force notice
has been issued. The Board held that an employee who receives a valid reduction in force
notice and chooses to accept another position rather than being placed or removed via
reduction in force does not have appeal rights to the Board. The Board noted that the
Federal Circuit had ruled differently in Harants v. U.S. Postal Service, 130 F.3d
1466 (Fed. Cir. 1997). However, the Board found that the court had relied only on past
Board precedent in issuing its ruling. Therefore, the Board used this case to clarify that
its previous holdings were not intended to provide a right of appeal to employees who
received a reduction in force notice but voluntarily accepted another position before the
any reduction in force action was effected. The Board also noted that the Harants
case involved the Postal Service reorganization where employees were not given any
reduction in force procedures. Therefore, the Board determined that the proper reference
in case law is to Owen v. Army, 74 MSPR 88 (1997) in which the Board found that
by voluntarily accepting another position prior to the effective date of the reduction in
force notice, the appellant lost his right to appeal the potential reduction in force
action. Vice Chair Slavet issued a dissenting opinion. Johnson
v. Army, DC0351980045-I-1, July 28, 1999.
This case reached the U.S. Court of Appeals for the Federal Circuit after the Merit
Systems Protection Board upheld the appellant's removal under reduction in force. The
appellant argued that the agency erroneously used a 1995 fully successful performance
rating when calculating the amount of service years based on performance. The appellant
stated that the 1995 rating was not valid because the rating official had only been her
supervisor for 84 days and the agency policy required that he be in place for 90 days. The
court denied the argument, finding that the requirement was for the employee, not the
supervisor, to be operating under the performance plan for at least ninety days. The
appellant had been under the plan for approximately six months when the rating was issued
and the court sustained the agency's use of the rating in deriving its retention register.
Veneziano v. Energy, Appeal No. 98-3070, (Fed.
Cir., September 1, 1999).
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- A pro se appellant's appeal is timely based on the fact that he was not informed that he
had to refile or amend his pending EEO discrimination complaint based on the same RIF
action in order to incorporate the subsequent appealable action, a demotion. After
receiving the original RIF notice of separation, the appellant filed a formal EEO
discrimination complaint. The agency subsequently issued a second and superseding RIF
notice which again advised him of the abolishment of his position and offered him a
position at a lower grade. The discrimination complaint was dismissed because it was
determined to be a "mixed case" appealable to the Board, so the appellant filed
an appeal with the Board based on the RIF abolishment of his position and his resultant
demotion. In his initial decision, the administrative judge stated he considered the
demotion to be the only action appealable to the Board, and noted that the appellant did
not amend his discrimination complaint to address the demotion after receiving the second
RIF notice; the AJ therefore dismissed the appeal as untimely. The Board, however, agreed
with the EEOC administrative judge and agency, who both viewed the complaint as covering
the subsequent action. Also, since pro se appellants are not required to plead the issues
with the precision of an attorney (Walters v. United States Postal Service, 65
M.S.P.R., 115, 119 (1994)), and because the appellant was not informed of the requirement
to refile his complaint based on the subsequent action, the Board reversed the initial
decision and remanded the case. Darrell R. Lott v.
Department of the Army, DC0351980654-I-1, July 2, 1999.
- Upon reconsideration, the Board again addresses the issue of whether an employee who
retires based on disability is entitled to have his disability retirement annuity
calculated under the enhanced annuity provisions of 5 USC § 8339 (d)(1) as a law
enforcement officer (LEO). The employee was entitled to LEO status, had more than 20 years
of service, but had not yet reached the age of 50. In this decision the Board reversed
itself, upholding OPM's decision that the applicable statutes provides for an enhanced
annuity for LEO's only if the employee meets the criteria for immediate LEO retirement.
Accordingly it denied the appellant's request to have his disability retirement
recalculated. Rogers v. Office of
Personnel Management, DA0831970094-R-1, August 3, 1999.
- The employee claimed that his retirement from DODDS was involuntary and constituted an
adverse action appealable to the Board. Concluding that the appellant made sufficient
non-frivolous claims of coercion and misinformation to warrant an evidentiary hearing, the
Federal Circuit overturned the Board decision which found no jurisdiction and remanded the
case back to the Board for a hearing. In this case, the employee, who was employed as an
Assistant Principal at an Air Force Base in Turkey, alleged that he was given a final
adverse action decision notice that required him to make all arrangements for his family
to leave the country within 11 days. Faced with this deadline, as well as serious health
concerns, the employee agreed to retire and thereby obtain six additional weeks to arrange
his move back to the U.S. Middleton v.
Department of Defense, Appeal No. 98-3409, (Fed. Cir. August 10, 1999).
Contact: Ken Bates, er@opm.gov or (202) 606-2920.
- Disability Retirement. The Merit Systems Protection Board agreed with
the position argued by the Office of Personnel Management that an employee who has been
reassigned to light duty is not eligible for retirement benefits as long as the employee
retains the grade and pay previously held. The Board noted that even if the agency does
not assign an employee to an established position, the assignment of light duty work, as
long as the work will continue, will be sufficient to prevent the employee from qualifying
for disability retirement. Appellants whose medical conditions prevent them from
performing in their positions of record would have to demonstrate that a light duty
assignment would not continue in order to be eligible for disability retirement. Vice
Chair Slavet issued a dissenting opinion. Bracy & Wilson v. Office
of Personnel Management, DC831E970643-I-1 & AT844E970645-I-1, August 30,
1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- The agency tentatively selected the appellant for a Police Officer position from a civil
service register but later told him that he was unsuitable for the position because the
agency's background investigation uncovered negative credit history information. The
employee filed an appeal with the Merit Systems Protection Board claiming that the
agency's action constituted a negative suitability determination. The Board determined,
however, that, while the agency "apparently determined that the appellant was
unsuitable," it had no delegated authority from the U.S. Office of Personnel
Management to make official suitability determinations with regard to applicants on a
civil service register. Thus, the Board concluded that the agency's action was not a
matter appealable to the Board. Metzenbaum v. GSA,
CH3443980814-I-1, August 11, 1999.
Contact: Gary Wahlert, er@opm.gov or (202) 606-2920.
- The appeal filed by the appellant was timely based on the date he received the agency's
decision by "hand-delivery." Following receipt of the agency's proposal to
remove the appellant, the appellant's representative provided the agency with a FAX number
for the specific purpose of receiving "any and all material relied on to
support" the proposed removal of the appellant. When notifying the appellant of its
final decision, the agency served the notice to the appellant by personal delivery (on
July 6) and to the appellant's representative by certified mail and by FAX (on July 2) to
the number he provided for receiving the agency's supporting evidence. The agency argued
that since the appellant's representative received the notice by FAX on July 2, the appeal
filed on August 5 was untimely. The Board, however, found the arguments of the appellant's
representative to be persuasive: (1) the appellant's representative only intended to
authorize the agency to use the FAX number provided for the purpose of allowing the
appellant expeditious review of material in order to respond to the removal proposal; (2)
the FAX number provided belonged to Kinko's and he was only using that number until his
firm obtained its own exclusive business FAX number; and (3) the FAX number provided in
his letter to the agency was not intended to be used for service of the removal decision.
Given these circumstances, the Board found that the appellant received the decision letter
on July 6 making his August 5 appeal timely. Randall R. Koelling v. Department of
the Navy, SF0752980665-I-1, July 21, 1999.
Contact: Ken Bates, er@opm.gov or (202) 606-2920.
- The Board defined its jurisdictional authority under the Veterans Programs Enhancement
Act of 1998, a statute that amended the 1994 Uniformed Services Employment and
Reemployment Rights Act. The amendment allowed the Merit Systems Protection Board to
adjudicate complaints even if the complaint occurred prior to the effective date of the
1994 statute (October 13, 1994). The Board considered two interpretations of the 1998
amendment. The first would allow the Board to review complaints that occurred before
October 13, 1994, under the predecessor to the current statute (Veterans' Reemployment
Rights Act). This previous statute had only covered an appellant's status as a member of a
Reserve component of the Armed Forces. The second interpretation would allow the Board to
retroactively apply the substantive rights found in the Uniformed Services Employment and
Reemployment Rights Act. The Board adopted the first interpretation after examining the
legislative history of the 1998 amendment and relying on the commonly accepted theory of
jurisprudence that a law should not be applied retroactively unless Congress explicitly
makes it so. Williams v. Army, DE3443980266-I-1,
July 26, 1999.
- In this case, the appellant claimed the agency violated his rights under the Veterans
Employment Opportunities Act of 1998 and the Uniformed Services Employment and
Reemployment Rights Act of 1994 when it failed to properly credit his 5-point veterans'
preference and selected another veteran for a vacant position. The Board found that it did
not have jurisdiction to review his claim under the Veterans Employment Opportunities Act
because the appellant had failed to file a complaint with the Department of Labor, a
prerequisite to gaining appeal rights at the Board under the 1998 law. The case was
remanded for a hearing on the allegation that the appellant's rights had been violated
under the 1994 statute. Tindall v. Army,
DC3443990270-I-1, October 27, 1999.
Contact: Sharon Snellings, er@opm.gov or (202) 606-2920.
- In a split decision, the Authority concluded that management committed unilateral change
and bypass ULPs when it negotiated a last chance agreement (LCA) directly with an employee
(who had failed to pay a government-issued credit card bill) without notifying and
bargaining with the union. It distinguished its holdings here from its holdings in 38 FLRA
No. 34, proposals 3 and 4, by noting that the meeting did not take place as part of a
grievance proceeding or a statutory appeal and thus did not involve the
§7121(b)(1)(C)(ii) employee right to represent him or herself in the negotiated grievance
procedure or the §7114(a)(5)(A) employee right to designate his/her representative in an
appeal action. As a remedy, FLRA orders, if requested by the union, that the LCA be voided
and that the employer purge all copies of the LCA from the employer's files. Social
Security Administration and American Federation of Government Employees, Local 1923,
WA-CA-60297, September 30, 1999, 55 FLRA No. 160.
Contact: lmrd@opm.gov or (202) 606-2930
- The Court of Appeals for the Federal Circuit held that the short time between the
whistleblowing in this case and the whistleblower being subjected to a reduction in force
(RIF) resulted from the timing of the RIF itself rather than the implementation of it
against the whistleblower. Thus, the whistleblower's claim of causation based on temporal
proximity (between the whistleblowing and the RIF) failed. Veneziano v. Energy,
Appeal No. 98-3070, (Fed. Cir., September 1, 1999).
- The Merit Systems Protection Board finds that, contrary to the appellant's allegations,
the agency's delays in removing one of its Administrative Law Judges for disruptive
behavior toward coworkers including the appellant did not constitute "abuse of
authority" under whistleblower law. The Board said earlier inactions by management on
the disciplinary action were "merely debatable" or, at most, "simply
negligent." The Board dismissed the appellant's reprisal claim. Pullcini v. Social Security
Administration, DC1221980447-W-1, October 5, 1999.
- In this case, the appellant complained to a supervisor and a co-worker about what he
considered to be dishonest and illegal agency accounting practices and then alleged to the
Merit Systems Protection Board that this constituted whistleblowing and that the agency
reprised against him for it. An administrative judge determined that the complaints were
not whistleblowing because they were merely disagreements with his supervisor and, in the
case of the co-worker, one who had no authority to resolve the matter. The full Board,
however, determined that the challenged accounting process was an "embedded" one
for which the supervisor also had no responsibility and that the appellant, by balking at
using the accounting practices and disclosing his beliefs about them, was "not merely
carrying out his job responsibilities." The Board concluded that the appellant made a
nonfrivilous showing that he made a protected disclosure and remanded the case back to one
of its regional offices for processing. Price v. NASA,
DC1221980578-W-1, October 5, 1999.
- In this case a Merit Systems Protection Board administrative judge found that the
agency's removal of the appellant from his Physician position was in reprisal for his
whistleblowing. The full Board, however, found that the agency treated the appellant in
the same way as it would any other agency employee violating its zero tolerance workplace
violence policy and thus did not reprise against the appellant. The appellant was removed,
among other things, for being "disrespectful, arrogant, excessive, abusive, and
physically intimidating" to a coworker, assaulting a coworker when he "pointed
[his] fingers inches away from [the coworker] while yelling and displaying other
aggressive behaviors", and jeopardizing the agency's commitment to providing a safe
work environment. Yunus v. Veterans Affairs, AT1221990160-W-1, October 7, 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.
On November 1, 1999, the Board declined to accept OPM's arguments. Instead it
found that the statute is ambigious and the legislative history does not require a finding
that debarment is authorized. It held (1) that Section 7324 does not authorize the
debarment of Federal employees and, reversing its earlier holding, (2) the employees'
resignations do not render moot the Special Counsel's complaint. 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.
On October 5, 1999, the Board majority agreed with OPM's reconsideration
request and found that a substantive jurisdictional finding is required in order to award
attorney fees since there is no unequivocal expression by Congress that attorney fees may
be awarded against the United States in the absence of Board jurisdiction. The Board also
agreed with OPM that the reason set forth in Joyce of preserving the Board's
analytical resources may not be used to circumvent a statutorily-required jurisdictional
finding. The Board will therefore, no longer apply the holding in Joyce. Instead,
the Board determined that the holding in Shaw, that a substantive jurisdictional
finding is required in order for the Board to award attorney fees, is good law and no
longer overruled.
However, the Board disagreed with OPM's contention that an appellant cannot be
a prevailing party unless he or she has obtained relief through an enforceable judgement,
consent decree, or settlement. While this is the definition of prevailing party supplied
by the Supreme Court in Farrar v. Hobby, 506 U.S. 103 (1992), the Board found
support in various circuit courts for its broader definition. That definition holds that
where the Board has jurisdiction over the appeal, the agency has unilaterally rescinded
its action, i.e., returned the appellant to the status quo ante, and the appellant has
incurred attorney fees, there is a rebuttable presumption that fees are warranted in the
interest of justice under the "knew or should have known" Allen
category. The Board remanded this case for a jurisdictional hearing. 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 C.F.R. 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. OPM has withdrawn its request for reconsideration in
this case. 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.
REAFFIRMATION OF LABOR-MANAGEMENT PARTNERSHIPS
- On October 28, 1999, President Clinton issued a memorandum for heads of executive
departments and agencies. This memo reaffirmed his belief that cooperation between Federal
agencies and their unions could help create a Government that works better, costs less,
and makes a positive difference in the lives of the American people. The President's
strong commitment to labor-management partnership was first expressed in Executive Order
12871, issued in October 1993.
In the six years since Executive Order 12871 was issued, agencies and unions have made
great strides in working together to improve agency performance. Partnerships between
labor and management have cut costs, enhanced productivity, and improved the delivery of
service to the American people at agencies like the IRS, the Department of Veterans
Affairs, the Social Security Administration, the Customs Service, and the Army. Many of
these successful partnerships are recognized each year by the National Partnership Council
with the John N. Sturdivant National Partnership Award. One recent winner was the U.S.
Mint, whose partnership with the American Federation of Government Employees brought
dramatic gains in customer service and over $25 million dollars in annual cost savings.
The President set out three specific directives with his new memo --
First, agencies are directed to develop a plan with their unions for implementing
partnership. Every effort should be made to develop a plan that helps the agency and its
employees deliver the highest quality service to the American people. Whenever possible,
workplace issues should be resolved through consensus using interest-based problem-solving
techniques. Agencies should aggressively seek training, facilitation, and meditation
assistance that can help foster an environment where partnerships can succeed and thrive.
Second, agencies are directed to report to the President through the Office of
Management and Budget (OMB), on the progress being made toward achieving the goals of the
memo and the directives set forth in the Executive Order. Reports are to be submitted by
April 14, 2000. These reports must be prepared with union involvement and input.
And third, the President has directed the Office of Personnel Management (OPM) to
analyze the information in these reports and, in coordination with OMB, advise the
President on further steps that might be needed to ensure successful implementation of
labor-management partnerships.
To assist agencies and unions, OPM will provide guidance on how agencies and unions can
measure their progress in partnership, and what kind of information they should be
providing in their reports to the President. OPM will also continue to direct agencies and
unions to the kind of training, mediation, and facilitation resources that can help them
develop more effective labor-management relationships.
Contact: lmrd@opm.gov or (202) 606-2930.
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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