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United States
Office of Personnel Management

New Developments in Employee
and Labor Relations

January 1999

TABLE OF CONTENTS

Highlights

Employee Health Services and Employee Relations Web Sites

  • Information on Employee Health Services (www.opm.gov/ehs) and Employee Relations (www.opm.gov/er) issues is now available on the Internet. We will be placing current and past issues of New Developments on these web sites in the near future. We anticipate adding substantially to both sites over the coming months.

SOELR'99 Sold Out

  • The Office of Personnel Management's annual Symposium on Employee and Labor Relations (SOELR'99) will be held March 2-5, 1999, at the renovated and expanded Hershey Lodge and Convention Center in Hershey, Pennsylvania. SOELR'99 IS SOLD OUT. (See Employee/Labor Relations Training).

Time Limit Extended for Filing Petitions with the Federal Circuit Court of Appeals

  • On October 30, 1998, President Clinton signed H.R. 2675, which extended the time for filing a petition with the Federal Circuit Court of Appeals from 30 days to 60 days. (See Jurisdiction and Procedure).

Tasteless Business Card

  • The principal of the Isleta Elementary School on the Pueblo of Isleta reservation in New Mexico interfered with school employees's section 7102 rights when he solicited and complied with a directive, issued by the reservation's Governor, in which a non-employee union representative was banished from the reservation because, in part, his business card was found to be offensive. (The card contained a native American symbol and said: "I'm that son of a bitch from the Union!" (See Tasteless Business Card ... Pueblo Banishment).

Performance Management Web Pages Up and Running

  • Information on Performance Management issues is now available on the Internet at www.opm.gov/perform. (See Performance Management).

Workforce Compensation and Performance Conference

  • The Office of Personnel Management's Office of Workforce Compensation and Performance Service will hold a conference on total compensation, September 8-9, 1999, in Alexandria, VA. For further information, contact Radiah Rose, 202 606-8486 or totalcomp@opm.gov.

Amicus Briefs

  • The Merit Systems Protection Board requested amicus briefs in two pending cases on whether the Board may adjudicate whistleblower retaliation claims that involve revocation of an employee's security clearance. (See Whistleblower Protection Act).

Attorney Fees

  • The employee was removed after being charged with unauthorized possession and removal of diesel fuel and six sheets of plywood, and unauthorized use of a government vehicle. On appeal, only part of the first charge (relating to the plywood) was sustained and the removal was mitigated to a 90-day suspension. While the administrative judge found that attorney fees were not warranted, the full Board reversed, finding that fees were warranted under the theory that the agency action was clearly without merit. It determined that, based on the findings of the initial decision on the merits, the agency presented no credible, probative evidence to support its charges relating to the diesel fuel or the government vehicle. The sustained charge, despite the substantial penalty imposed, was characterized as "not grave." Gensburg v. DVA, SF0752970022A-1, 11/3/98. Contact: er@opm.gov or (202) 606-2920.

  • Substantially Innocent Allen Criterion. In a split decision, the Authority set aside an award denying attorney fees where the arbitrator, although finding that the agency failed to meet its burden of proof regarding its suspension action, denied that part of the grievance claiming that the suspension was in retaliation for the protected disclosure of a prior grievance. Relying on the "substantially innocent" criterion of Allen v. USPS, 2 MSPR 420 (1980) (Allen) for determining whether an award of attorney fees is warranted in the interest of justice, the Authority set aside the arbitrator's denial of attorney fees because he relied on factual findings related to the retaliation issue rather than on the factual findings related to the discipline issue. Member Wasserman, concerned that FLRA was narrowing the gap between arbitration and litigation, took issue with such a compartmentalization of the arbitrator's factual findings and instead argued that FLRA should consider the entire record. National Association of Government Employees, Local R5-188 and Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 0-AR-3018, October 30, 1998, 54 FLRA No. 122. Contact: cplmr@opm.gov or (202) 606-2930.

Charges and Penalties

  • In a case where, among other things, the appellant was removed for disrespectful conduct toward a supervisor (a "shouting match"), the Merit Systems Protection Board reiterates its policy that provocation is not a defense to the merits of a charge but, rather, is a factor to be considered in the penalty determination. The appellant argued his conduct was the result of supervisory provocation. The Board upheld that charge but mitigated the penalty to a 30-day suspension because other charges and specifications were not proven. Kokkinis v. DVA, CH0752970221-I-2, September 30, 1998.

  • The appellant was demoted from his GM-15 supervisory position for (1) defiance of authority and insubordination and (2) misconduct in exercising management and supervisory duties, undermining management authority, and inappropriate conduct in dealing with subordinate employees. The misconduct was related to a letter the appellant wrote to his supervisors, and shared with his subordinates, that described an assignment given to him as "unreasonable" and "unfair" and saying that "as long as I am in my present capacity, I will not respond to, or implement any dictated unreasonable and unfair managerial practices." The Merit Systems Protection Board did not sustain the first charge because the technical charge of "insubordination" was not proven but did sustain the second charge and upheld the demotion penalty. Here, the Board noted that the appellant's direct challenge to his superiors' authority undermined their ability to maintain employee discipline and efficiency. The Board further commented that the misconduct "goes to the heart" of the appellant's job. Hanna v. Labor, DC0752961059-I-2, November 20, 1998. Contact: er@opm.gov or (202) 606-2920.

Compensatory Damages

  • The Merit Systems Protection Board reopened on its own motion a case involving a claim for compensatory damages. The Board modified the administrative judge's award by granting the appellant an additional $240 to include medical expenses which the administrative judge had excluded because the appellant's health insurer had paid those expenses. The Board adopted the Equal Employment Opportunity Commission's reasoning that these types of expenses were allowed under the "collateral source" rule, which means that an award for damages cannot be reduced on the basis that the appellant received a benefit (the payment of medical bills) from a source collateral to the agency (the health insurance company). Therefore, compensatory damages awards may include reimbursement for medical expenses, regardless of whether these expenses were paid for by a health insurer. Reid v. Postal Service, NY0752920562-P-2, December 10, 1998. Contact: er@opm.gov or (202) 606-2920.

Direct Dealing with Rival Unions ... EO 12871 Task Forces

  • In a split decision (Member Wasserman dissenting), the Authority turned down union exceptions to an award in which the arbitrator held that the agency didn't commit an unfair labor practice or violate the agreement between it and AFGE when it allowed NFFE to participate in the deliberations of agency-wide reorganization task forces.

    The majority, deferring to the arbitrator's findings of fact and relying on principles derived from its earlier "bypass ULP" decisions involving "direct dealings" with employees (as opposed to labor organizations) as well as on National Labor Relations Board decisions, said the following about the principles it would apply to direct dealings with another union:

    Where an agency's contacts with a union other than the exclusive representative do not exclude the exclusive representative, and preserve the exclusive representative's role in the determination of conditions of employment, the agency is not engaged in direct dealing in violation of the Statute. In addition, where an agency's contacts with a union other than the exclusive representative do not involve matters within the scope of the statutory authority of the exclusive representative, the agency also is not engaged in direct dealing contrary to the Statute.

    American Federation of Government Employees National Council of HUD Locals 222 and U.S. Department of Housing and Urban Development, 0-AR-2725, September 30, 1998, 54 FLRA No. 109. Contact: cplmr@opm.gov or (202) 606-2930.

Employee/Labor Relations Training

  • The Office of Personnel Management's annual Symposium on Employee and Labor Relations (SOELR '99) will be held March 2-5, 1999, at the renovated and expanded Hershey Lodge and Convention Center in Hershey, Pennsylvania. SOELR '99 is sold out. This comprehensive conference is devoted to recent developments and emerging issues in employee relations, labor relations, dispute resolution, performance management, and partnership. Information about SOELR '00 will be available later in 1999. Brochures containing registration information and registration forms for SOELR '00 will be mailed out in early fall 1999. When available, the registration form and other SOELR '00 information will also be available on the Office's home page at www.opm.gov/er. Contact: soelr@opm.gov or (202) 606-4446.

  • The Federal Dispute Resolution Conference (FDR) will be held in San Antonio, Texas, on August 22-26, 1999. The program and costs for this conference, sponsored by FDR, Inc., have not been set. FDR, Inc. typically sends out brochures containing registration information-mation and registration forms sometime early in the year. Additional information about FDR is located on the internet at www.shawbransford.com. Contact: pforner@aol.com or (202) 463-8400, ext. 348.

Food Services ... Direct, Indirect, and Collateral Effects of a Proposal

  • A proposal prescribing the location of a McDonald's on the agency's property is a mandatory subject of bargaining even though it has an indirect effect on the availability of its services to personnel outside the bargaining unit. The "vitally affects" test doesn't apply to a proposal's indirect effects. Nor does the proposal's collateral effects on the revenues (and the uses of those revenues) of a competing food services business remove the proposal from the mandatory scope of bargaining. International Federation of Professional and Technical Engineers, Local 35 and Department of the Navy, Norfolk Naval Shipyard, 0-NG-2311, October 30, 1998, 54 FLRA No. 119. Contact: cplmr@opm.gov or (202) 606-2930.

Jurisdiction and Procedure

  • On October 30, 1998, President Clinton signed H.R. 2675, which extended the time for filing a petition with the Federal Circuit Court of Appeals from 30 days to 60 days. The law went into effect immediately. The appellant maintained that her lateral transfer to a position in another agency was really a constructive removal, coerced by the agency through its hostile and retaliatory behavior. The administrative judge dismissed the appeal, reasoning that a lateral transfer, in which the employee experienced neither a break in service nor a loss in pay, could not be an appealable action. The Board, upon review, disagreed. "In reaching this conclusion, we note that a coerced inter-agency transfer, even a lateral transfer, is analogous to a coerced resignation and is, therefore, within the Board's jurisdiction." Colburn v. Department of Justice, DE0752980086-I-1, November 13, 1998.

  • In this case, the appellant attempted to file an individual right of action (IRA) appeal alleging that his suspension was in reprisal for having complained about violations of his agency Commanding General's open door policy. The Merit Systems Protection Board dismissed the appeal after finding that the appellant had already raised this issue in a grievance under the negotiated grievance procedure (NGP). The Board noted that a bargaining unit employee claiming reprisal for whistleblowing has the right to elect one of three options: (1) file an appeal with the Board, (2) file a grievance under an NGP, or (3) seek corrective action from the Office of Special Counsel. The appellant claimed he was unaware of these options when he filed the grievance. The Board was unpersuaded, and dismissed the appeal for lack of jurisdiction. "We find nothing in the 1994 amendments to the Whistleblower Protection Act, however, nor in the legislative history of those amendments, that indicates that an election is binding only if the individual is aware of all of his options, and of the effect that pursuing a particular option will have on his ability to pursue other options." The Board has reached different results in similar cases reported in previous issues, and we would caution agencies against over reliance on this holding. Feiertag v. Army, SF1221980107-W-1, November 13, 1998.

  • The appellant received two initial decisions, one dismissing his IRA appeal and the other sustaining his removal. After filing his petition for review of the first, and before the second became final, he filed requests asking that the Board stay its proceedings in the two cases while he sought resolution of his claims before the Department of Labor. The agency opposed the request, asserting that the appellant was simply "forum shopping," and that it could take over a year for the Labor Department proceedings to conclude. The Board majority decided to approve dismissal without prejudice to refiling by December 15, 1998, or within 30 days of the date of a final decision by the Department of Labor, over the agency's objection, and Vice Chair Slavet's dissent. Rockefeller v. Energy, DE1221980003-W-1, and DE0752980138-I-1, November 13, 1998.

  • The appellant filed an appeal of his Reduction In Force demotion, requesting a hearing. He separately appealed his allegedly involuntary retirement, and the two appeals were consolidated. The administrative judge (AJ) later found that the appellant waived his hearing request, because he could not afford to travel to the Board's designated hearing site. The initial decision affirmed the demotion and dismissed the claim of involuntary retirement. The Board remanded, finding that the AJ had not fully informed the appellant of his options to an in-person hearing, including "a hearing by telephone or, if appropriate, by video or at a location other than Phoenix." The pro se appellant had not actually mentioned "hearing-related issues" in his petition, but the Board found the remand necessary for fair adjudication, noting the "strong policy consideration that an appellant receive a hearing on the merits of a case." Siman v. Air Force, DE0351980006-I-1 and DE0752980055-I-1, November 23, 1998.

  • When the appellant laterally transferred from one agency to another, the receiving agency inadvertently reflected the wrong salary on his appointment SF-50 and overpaid him for several years, until the error was discovered in an agency-wide audit. The agency then reduced his salary to correct the error, and he appealed the action reducing him in pay without adverse action procedures. The administrative judge dismissed for lack of jurisdiction, finding that the action was excluded from coverage, since the agency had simply acted to correct its earlier mistake in paying him at a rate contrary to regulation. Upon review, the Board referred the parties to its recently issued Lomax v. Department of Defense, CH3443970763-I-1, June 17, 1998, and remanded. Once an appellant has shown that his pay was reduced without adverse action procedures, the burden is on the agency to show that the prior rate was contrary to law to regulation. The agency representative's assertions, and copies of SF-50s, standing alone, did not meet that burden. Upon remand, if the agency is able to prove that the higher rate inadvertently paid the appellant was actually contrary to law or regulation, the administrative judge is to consider the appellant's argument that the regulation excepting such actions from adverse action coverage "is invalid as contrary to law." Royster v. Defense, DC0752980086-I-1, December 1, 1998.

  • The appeal was marked by repeated and prolonged delays caused by extensive discovery and related disputes. After the appellant's March 16, 1998, Motion for Sanctions against the agency, for failure to provide certain requested discovery materials, the administrative judge (AJ) directed the agency to provide three disputed items to him for in camera inspection. The items were: a complete copy of an Engineer Inspector General report, including interview transcripts; a complete copy of an Inspector General report, including transcripts; and notes made by two people, one of whom was the agency representative, during the deciding official's interviews with witnesses. Six weeks after the deadline for submission, two items had not been supplied, and the agency representative was not responding to the AJ's messages. The AJ accordingly issued an order imposing sanctions on the agency in the form of extremely damaging negative inferences. This interlocutory appeal followed. The Board upheld the sanctions, pointedly observing that failure to comply with an AJ's orders is not an acceptable way to resolve discovery disputes. It also made clear that it does not consider itself bound by restrictions or conditions an Inspector General may place on material he or she releases, since "the Board and its AJs are not subject to the agency's internal regulations." Montgomery v. Army, SF0752970767-I-3, December 17, 1998.

    Contact: er@opm.gov or (202) 606-2920.

Performance Management

Performance Management Web Pages Up and Running. We are proud to announce that our performance management web pages are available for your use. Included on these pages are:

  • Workforce Performance newsletter articles from past issues, with a complete copy of the most recent issue;
  • answers to frequently asked questions about performance management;
  • an overview of the background and history of performance management;
  • papers and reports published by our office on topics such as pass/fail appraisal, 360-degree assessment, and improving customer service;
  • a guide to legal citations; and
  • links to related sites, including the United States Code, the Code of Federal Regulations, and the Merit Systems Protection Board.

You can access our web pages on the Internet at Performance Management www.opm.gov/perform. Contact: performance-management@opm.gov,or 202-606-2720.

3-Day Suspension for Unauthorized Removal of Government Property

  • The Federal Labor Relations Authority turned down union exceptions to an award in which the arbitrator held that (1) there was just cause to suspend grievant (a food service employee) three days because of unauthorized removal of Government property (a bag of coffee), and (2) insufficient cause for the total discipline (which had also involved a demotion and shift change). The Federal Labor Relations Authority found that the arbitrator did not exceed his authority (the parties didn't stipulate the issue to be resolved). Nor was the award inconsistent with 5 USC § 7503(b), requiring advance written notice stating the specific reasons for the proposed action. Regarding the latter, the union claimed that since the arbitrator sustained the action for reasons other than those in the actual letter proposing action, the grievant didn't get advance notice of those "reasons"--and therefore the requirements of 5 USC 7503(b) were violated. The Federal Labor Relations Authority responded as follows:

    The fact that the Arbitrator sustained the discipline on the basis that the grievant was responsible for the loss of coffee because he did not properly secure and protect the food item does not render the charges against the grievant deficient under section 7503(b). . . . Both the [MSPB] and the Authority have upheld decisions of the [MSPB]'s presiding officials and arbitrators, respectively, who sustained agency actions on grounds other than those precisely stated by the agencies in their notices to affected employees. In such cases, the Merit Systems Protection Board and the Authority have examined whether the charges set forth in the notices encompassed the charges addressed by the presiding officials and arbitrators and whether the affected employees were sufficiently on notice to defend against the charges. . . . In this case, the grievant was clearly on notice that foodstuffs under his control were removed by an employee outside the Nutrition and Food Service and, as a result of this loss, he was facing a possible suspension.

    American Federation of Government Employees, Local 2028 and U.S. Department of Veterans Affairs, Medical Center, Pittsburgh, Pennsylvania, 0-AR-3079, October 30, 1998, 54 FLRA No. 125.

Contact: cplmr@opm.gov or (202) 606-2930.

Tasteless Business Card ... Pueblo Banishment

  • The principal of the Isleta Elementary School on the Pueblo of Isleta reservation in New Mexico interfered with school employees's section 7102 rights when he solicited and complied with a directive, issued by the reservation's Governor, in which a non-employee union representative was banished from the reservation because, in part, his business card was found to be offensive. (The card contained a native American symbol and said: "I'm that son of a bitch from the Union!")

    The Federal Labor Relations Authority noted that the section 7102 right "encompasses a union's right to designate its representatives, including a non-employee who will have access to an agency's premises to conduct representational activities." The Federal Labor Relations Authority also held that the tasteless business card didn't constitute flagrant misconduct.

    As a remedy for the Unfair Labor Practice, the Federal Labor Relations Authority directed the respondent to ask the Governor of the Pueblo, orally and in writing, to rescind the ban on the union representatives, and to note that they were engaged in lawful conduct. Unless and until the Governor rescinds the ban, the agency must transport bargaining unit employees, at their request and with official time, to a location off the Pueblo during non-work time to periodically meet with union representatives. Bureau of Indian Affairs. Isleta Elementary School, Pueblo of Isleta, New Mexico and Indian Educators Federation, DE-CA-50006, 50324, 50420, October 30, 1998, 54 FLRA No. 124.

    Contact: cplmr@opm.gov or (202) 606-2930.

Whistleblower Protection Act

  • The Merit Systems Protection Board dismissed the appellant's individual right of action (IRA) appeal challenging a three-day suspension from his GM-14 attorney position. The Board noted that the appellant's claim that his suspension was in retaliation for an age discrimination complaint he filed was a prohibited personnel practice under Section 2302(b)(9) of Title 5 of the United States Code rather than reprisal for making protected disclosures, a matter under Section 2302(b)(8) on which an IRA could properly be based. In addition, the appellant was unable to show that other disclosures were for a purpose distinct from his grievance and discrimination complaint, i.e., whistleblowing. Cosby v. Justice, DC1221980238-W-1, December 11, 1998.

  • Recognizing that a pro se appellant's pleading are not held to the same standard as those made by attorneys, the Merit Systems Protection Board determined that while the appellant had not specifically described the nature of his alleged whistleblowing, he had "incorporated it by reference." Thus, his references to an Inspector General complaint about improper spending could be construed as alleging a gross waste of funds. The Board remanded the individual right of action (IRA) appeal to one of its regional offices to determine whether, under the law, the appellant "reasonably believed" the disclosure to be a gross waste of funds. Smith v. Army, PH1221970447-W-1, November 24, 1998.

  • The Merit Systems Protection Board held that the appellant's act of informing agency police that her former boyfriend had stolen items worth $200 from the agency constituted a protected disclosure under Section 2302(b)(8)(A) of Title 5 of the United States Code. The Board acknowledged the agency assertion, that the appellant's disclosure was made because her relationship with her former boyfriend had deteriorated and she believed he was harassing her, but ruled that the appellant's motive in making the disclosure was irrelevant in determining whether the disclosure was protected. The Board also discounted the fact that the former boyfriend was not in a position to retaliate against the appellant and remanded the case back to one of its regional offices to review the merits. Molinar v. Veterans Affairs, DE1221980072-W-1, November 13, 1998.

  • For purposes of protection under the Whistleblower Protection Act, the appellants' jobs with the University of Illinois Cooperative Extension Services were ruled by the Merit Systems Protection Board to be "covered positions" within the meaning of the Act. Thus, the appellants were able to file individual right of action (IRA) appeals claiming one's threatened separation and the other's threatened reassignment by the University were in reprisal for whistleblowing. Since the appellants had joint Federal and state appointments (and cannot maintain their Federal appointments without concurrent University appointment), the parties were asked on remand to argue whether either the University or the Department of Agriculture would have authority to grant a remedy in the event that the University carried out the threatened separation and reassignment actions. Simmons and Ahrenholz v. Agriculture, CH1221970338-W-1 and CH1221970373-W-1, December 4, 1998. See also Feiertag v. Army, SF1221980107-W-1, November 13, 1998, under Jurisdiction and Procedure.

  • In his appeal to the Court of Appeals for the Federal Circuit, the petitioner alleged that he was reprised against for whistleblowing, an issue that had not been raised earlier before the full Merit Systems Protection Board. Here, the court noted that, in order for an issue to be preserved for review by the court, the issue must have been raised before a Board administrative judge (which the petitioner did). The court reaffirmed its precedent decision in James v. Federal Energy Regulatory Commission, 755 F2d 154 (Fed. Cir. 1985) that when an issue has been raised before a Board judge but not raised at the full Board in a petition for review, the issue is preserved for court review "unless the appellant has knowingly abandoned or waived the issue." The court remanded the whistleblowing issue to the Board for adjudication. Bosley v. Merit Systems Protection Board, Court of Appeals for the Federal Circuit, Appeal No. 98-3165, December 14, 1998.

  • In an October 16, 1998, Federal Register notice, the Merit Systems Protection Board requested amicus briefs in two pending cases on whether the Board may adjudicate whistleblower retaliation claims that involve revocation of an employee's security clearance. On December 7, 1998, the Office of Personnel Management filed its brief. It argued that the 1994 amendments to the Whistleblower Protection Act, which amended the definition of personnel actions to include "any other significant change in. . . working conditions," did not include security clearances, which are job requirements as opposed to working conditions. The Office's argument closely tracks the Supreme Court's analysis in Department of the Navy v. Egan, 484 U.S. 518 (1988). In that case, the Court observed that courts have been reluctant to intrude upon the authority of the executive branch in national security affairs unless Congress specifically provides otherwise. The Department of Justice made similar arguments to the Board in its amicus brief. Roach v. Army, DC-1221970251-W-1, and Hesse v. State, DC0752971079-I-1. Contact: er@opm.gov or (202) 606-2920.

Work Assignment Plans ... § 7106(b)(1) Methods and Means

  • In a negotiability case involving 11 disputed proposals, all but one of them seeking to place time limitations ("off-interview time") on the assignment of interview duties, the Authority dismissed one because no allegation of nonnegotiability had been made, held that one, dealing with a § 7106(b)(2) procedure, is a mandatory subject of bargaining, and held that the remaining nine proposals are electively negotiable "methods and means" under § 7106(b)(1). (In one of the dismissed proposals, the agency refused to bargain, not because it claimed the proposal was nonnegotiable, but rather because the matter was already "covered by" the contract. Noting that "covered by" issues are handled under unfair labor practice, not negotiability, procedures, FLRA dismissed that particular proposal without prejudice.) American Federation of Government Employees and Social Security Administration, District Office, New Bedford, Massachusetts, No. 0-NG-2258, October 22, 1998, 54 FLRA No. 113.

    Contact: cplmr@opm.gov or (202) 606-2930.

Current Interventions

Listed below are decisions which currently are 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. Vesser v. Office of Personnel Management, AT300A910448-R-1, November 21, 1994.

On December 27, 1994, the Office of Personnel Management sought reconsideration of this decision in which the Board reopened a case after the Federal Circuit had adjudicated it and prescribed a remedy for the appellant. The court had reversed an Office of Personnel Management decision (sustained by the Board) which removed the appellant from the list of candidates for Administrative Law Judge positions because he had retired, and reemployed annuitant status was deemed incompatible with employment as an Administrative Law Judge.

The court provided no remedy, and the Office of Personnel Management believes the Board is without authority to amend its decision in the absence of a remand order. Furthermore, even if the Board had the authority to issue its Order, it would constitute an improper remedy. Instead of providing for priority referrals equal to the number of considerations the appellant actually lost, which would be a proper "make whole" remedy, it provides him unlimited priority referral to the detriment of other candidates. Contact: er@opm.gov or (202) 606-2920.

2. White v. Air Force, Docket No. DE1221920491-B-1, August 25, 1994.

The Board refused to consider the Office of Personnel Management's arguments that the appellant in this case did not have a "reasonable belief" that gross misconduct had occurred at his agency and thus was not a whistleblower entitled to all the rights that status provides, including the right to file an individual right of action appeal with the Board.

The Board's rejection of the Office's intervention was based on its belief that the Office had not intervened "as soon as practicable" as required by Chapter 77 of the United States Code. The Office believes that the Board erred in this regard. The Court of Appeals for the Federal Circuit granted the Office's request for review of the case. Subsequently, the Court of Appeals granted a request by the Merit Systems Protection Board that the court remand the case back to the Board for further administrative adjudication. Following remand, the Board on March 10, 1998, affirmed its prior decisions and conclusions on the appeal, stating that the Office's arguments" improperly focus on isolated aspects of our decision while overlooking the cumulative effect of the basis for our decision." Among other things, the Board determined that the appellant's "fear" that gross mismanagement and abuse of authority had taken place was a proper consideration in determining whether the appellant had a "reasonable belief" that such misconduct took place.

On June 5, 1998, the Federal Circuit granted a request by the Office of Personnel Management to review the Board's latest decision. The court rejected the employee's argument that the court could not review the matter because it involved the Whistleblower Protection Act rather than a civil service law, rule, or regulation affecting personnel management. The court noted that the issue of disagreement between the Office and the Board is the standard for determining whether an appellant has established that he or she had a reasonable belief that improper activity at the agency occurred. The Office filed its brief with the court on August 31, 1998. Contact: er@opm.gov or (202) 606-2920.

3. Devall v. Navy, DA0752950794-I-1, February 24, 1997.

The Board applied its earlier decision in White v. Postal Service (when all of an agency's disciplinary charges are not sustained, the Board has the authority to set a reasonable penalty) and ruled that the penalty for sexual harassment and unauthorized use of property (a third and relatively minor charge of wasting time was not sustained) is a 90-day suspension rather than removal. This was done despite an agency official's clear testimony that he removed the employee based on the seriousness of the sexual harassment.

The Office of Personnel Management believes that the Merit Systems Protection Board erred as a matter of law in both White and Devall by vesting itself with authority to independently select disciplinary penalties (rather than defer to an agency's judgment). On January 26, 1998, the Board rejected the Office's reconsideration request. The Office and the Department of Justice sought review by the Court of Appeals for the Federal Circuit of the Board's decision. On April 17, 1998, the Court, noting that the Office and the Board disagree about the deference to be accorded an agency's penalty decision, determined that the matter would have substantial impact on the administration of civil service laws and accordingly granted the Office's petition for review. On July 21, 1998, the Department of Justice and the Office filed their brief in support of the petition to the Federal Circuit, arguing that the Board's decisions in White and Devall impair Federal agencies' rights to remove and discipline employees under Chapter 75 and thus undermine the efficiency of the civil service. Oral arguments in the case were heard by the court on January 6, 1999. Contact: er@opm.gov or (202) 606-2920.

4. 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.

5. 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.

Topical Overview

OPM's Center for Partnership and Labor-Management Relations

On January 4, 1999, the U.S. Office of Personnel Management (OPM) welcomed Jeff Sumberg as the new director for the Center for Partnership and Labor-Management Relations (CPLMR.) As Director of CPLMR, Mr. Sumberg is the principal policy advisor to the Director of OPM regarding labor relations and partnership. Mr. Sumberg and the staff of the CPLMR will be working towards the further development and growth of labor-management partnerships throughout the Government.

Prior to joining OPM, Mr. Sumberg served as the Director of Field Services for the American Federation of Government Employees (AFGE), the nation's largest Federal employee union, where he managed AFGE's labor relations and collective bargaining programs and spearheaded efforts to promote partnerships under Executive Order 12871. Before that, Mr Sumberg served as Deputy General Counsel for the National Federation of Federal Employees where he represented employees and the union before administrative agencies and in the Federal district and appellate courts. Mr. Sumberg received his law degree in 1985 from the George Washington University National Law Center.

Labor-Management Relations Policy Leadership

The CPLMR supports the Director of OPM in her role as principal policy advisor on labor-management relations and enhances agencies' ability to deal effectively with labor-management relations matters by conducting liaison activities with administration and agency officials. OPM leads the Government in improving operations by helping agencies work effectively with Federal labor organizations which represent 1.1 million Federal employees.

CPLMR strives to provide direct, timely, accurate and useful advice and technical assistance to Federal agencies on effective labor-management relations through a variety of means, by:

  • serving as the source for Governmentwide information on Federal union recognition and collective bargaining agreements through its Labor Agreement Information Retrieval System (LAIRS), and tracking innovations and best practices in labor-management relations;
  • providing to agency officials useful and accurate analysis of case law decisions by courts, administrative tribunals, and arbitrators; and
  • facilitating information-sharing among agencies, as well as publishing and distributing information in a variety of formats. A few of CPLMR's publications include:
  • Significant Cases, published bimonthly, providing detailed analytical digests of selected key decisions of the FLRA, MSPB, and the courts.
  • Negotiability Determinations by the Federal Labor Relations Authority, published annually providing an index of FLRA decisions on the negotiability of proposals.
  • Index of Decisions: Federal Service Impasses Panel published annually, providing summaries of cases decided by the FSIP during a 12-month period.

CPLMR also provides staff work for the National Partnership Council (NPC) and maintains the NPC Clearinghouse as a resource for information on labor-management partnerships. Its services are available to agencies, unions, and the public. CPLMR maintains a website at http://www.opm.gov/cplmr/index.htm. You may contact the NPC Clearinghouse at (202) 606-2940. Contact: Center for Partnership and Labor-Management Relations, (202) 606-2930 or Fax (202) 606-2613

Index of Cases

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.

Web page updated 24 April 2000