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 Number 135 May 2000 This report covers selected decisions and other actions of the Federal Labor Relations Authority (Authority or FLRA) under the Federal Service Labor-Management Relations Statute (FSLMRS), the Merit Systems Protection Board (Board or MSPB), the courts, and other authorities whose actions affect Federal employee and labor-management relations. Selection is based generally on whether a case creates or modifies precedent or provides insights that are of interest to a wider spectrum of agency management than only the parties to the cases themselves. FLRA DECISIONS FIRST PRONG OF THE BEP TEST ... REMEDY FOR VIOLATION OF UNSPECIFIED REGULATION OR CONTRACT PROVISION. After finding that there was an appearance of impropriety in the selection and that the interview questions asked by the rating/recommending panel unfairly favored the selectee, the arbitrator directed that the selection be vacated, the promotion action be rerun, the rating/recommending panel not include any members of the previous panel, and that the new panel ask interview questions that favor ship repair over supply experience. Because the arbitrator did not identify any specific regulation or section 7106(b) provision of the collective bargaining agreement that was violated in connection with either the interview questions or the participation on the panel by the disputed individual, FLRA remanded the case to the parties for resubmission to the arbitrator for a clarification of the basis of his award. Department of the Navy, Supervisor or Shipbuilding, Conversion and Repair, Newport News, VA and National Association of Government Employees, Local R4-2, 0-AR- 3236, May 5, 2000, 56 FLRA No. 48. SUCCESSORSHIPS AT A HIGHER LEVEL. Because changes in the chain of command do not necessarily render an existing unit inappropriate, reorganizations that fragment the chains of command of the management of employees in an existing unit may have the effect of raising, via successorship, the level of recognition (and perhaps expanding the scope of bargaining) of the affected unit. Department of the Navy, Commander, Naval Base, Norfolk, Virginia and National Association of Government Employees, Local R4-1, SEIU, AFL-CIO, WA-RP-80061, May 5, 2000, 56 FLRA No. 47 RENEGOTIATING PERMISSIVE SUBJECTS OF BARGAINING. Adopting the rationale of the Supreme Court in Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Company, Chemical Division, 404 U.S. 157 (1971) (Pittsburgh Plate Glass), the Authority holds that the fact that the parties once bargained and reached an agreement relating to the work assignments of supervisors (a permissive subject of bargaining), does not make the subject a mandatory topic of future bargaining--i.e., the agreement does not mean that the agency is obligated to bargain over adjustments to the agreement's provisions on the work assignments of supervisors. (In a footnote FLRA reminds us, however, that existing provisions on a permissive subject of bargaining are enforceable if otherwise consistent with law and regulation.) National Air Traffic Controllers Association, Rochester Local and U.S. Department of Transportation, Federal Aviation Administration, Rochester, New York, 0-NG- 2486, April 28, 2000, 56 FLRA No. 40. FLSA OVERTIME COVERAGE ... COMPARING POSITION DESCRIPTIONS. The Authority turned down agency exceptions to an award in which the arbitrator&mash;relying on testimony by supervisors and representative employees regarding the accuracy of the grievants' position descriptions (PDs) and comparing those PDs with the PDs of employees the agency, in an earlier settlement agreement, had agreed were non-exempt--found that the grievants were improperly exempted from the overtime coverage under the Fair Labor Standards Act (FLSA). U.S. Department of the Navy, Naval Explosive Ordinance Disposal Technology Division, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 0-AR-3199, April 28, 2000, 56 FLRA No. 39. NON-EXCLUSIVE CREDITING PLAN ... NEGOTIABLE OPTIONS. A proposal requiring management to use the union's crediting plan in evaluating candidates for vacancies is negotiable because, under the proposal, the agency is still "able to establish its own alternative crediting plan, apply it to the same candidates' qualifications, and forward the results therefrom to the selecting official as well." In thus finding that the proposal, when considered as a whole, did not interfere with management's right to select, the Authority relied on its decision in 2 FLRA No. 77, # III, where it held that as long as an "options" proposal contained a negotiable option, the proposal as a whole is negotiable. Or, as FLRA puts it in this case: "where a proposal prescribes a particular selection criterion [which would, by itself, interfere with the right to select], but also provides management an option that preserves its right to select, the proposal does not affect the exercise of that right." Association of Civilian Technicians, Inc., Heartland Chapter and U.S. Department of Defense, National Guard Bureau, Iowa National Guard, 0-NG- 2491, March 31, 2000, 56 FLRA No. 30. LAST CHANCE SETTLEMENT AGREEMENTS. An appellant may demonstrate that a settlement agreement was coerced, and thus, involuntary, by showing that the agency threatened to take a future disciplinary action that it knew or should have known could not be substantiated. Ronald A. Fassett v. United States Postal Service, PH0752960468-M-1, April 19, 2000. USERRA/VEOA. In appeals alleging a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), an appellant who charges discrimination based on military service must demonstrate that the agency treated the appellant worse than a non-veteran because of the appellant's military service. It is not sufficient to show that the agency did not treat the appellant better than non-veterans. Ronald Fahrenbacher and Patrick J. Sheehan v. Department of Navy, CH3443980656-I-1 & CH3443980724-I-1, March 22, 2000. DISABILITY DISCRIMINATION. Where charged misconduct is proven, even a proven disabling condition does not insulate an employee from disciplinary action. Fitzgerald v. Department of Defense, SE-0752-98-0221-I-1, March 17, 2000. TIMELINESS. In taking an appealable action, an agency has an affirmative duty to provide full and accurate information to an employee regarding his appeal rights and failure to do so is the critical and controlling fact showing good cause for the employee's filing delay. Kenneth F. Drose v. Postal Service, CH0752990514-I-1, February 2, 2000. DISABILITY DISCRIMINATION. In assessing whether a medical condition is a "disability" requiring reasonable accommodation, the Board will consider whether the effect of medication mitigates the impact of the condition. Barbara Shestak v. Social Security Administration, 84 MSPR 307 (November 1, 1999) FLRA DECISIONS 56 FLRA No. 48 Department of the Navy, Supervisor or Shipbuilding, Conversion and Repair, Newport News, VA and National Association of Government Employees, Local R4-2, 0-AR-3236, May 5, 2000, 56 FLRA No. 48. Holding After finding that there was an appearance of impropriety in the selection and that the interview questions asked by the rating/recommending panel unfairly favored the selectee, the arbitrator directed that the selection be vacated, the promotion action be rerun, the rating/recommending panel not include any members of the previous panel (thus affecting the right to assign work), and that the new panel ask interview questions that favor ship repair over supply experience (thus affecting the right to select). Because the arbitrator did not identify any specific regulation or section 7106(b) provision of the collective bargaining agreement that was violated in connection with either the interview questions or the participation on the panel by the disputed individual, FLRA remanded the case to the parties for resubmission to the arbitrator for a clarification of the basis of his award. Summary This case involved the filling of a GS-12 Production Controller vacancy. (The first ranking factor for this position: "[k]nowledge of ship repair practices and procedures . . . .") The selecting official established a panel of four individuals who were charged with rating and ranking the 13 applicants and recommending one person for selection. The grievant, who was one of the three highest-ranked candidates, was not recommended or selected for the position after an oral interview in which the questions focused on supply rather than ship repair experience. He grieved--claiming that one of the panel members was biased in favor of the person selected and that the interview questions were biased in favor of the selectee's supply experience--and the union referred the matter to arbitration. The agency, noting that the agreement excluded from the coverage of the negotiated grievance procedure nonselection for promotion from a group of properly ranked and certified candidates, claimed that the matter was non-arbitrable because the grievance was based solely on non-selection. The arbitrator disagreed, finding instead that the union was challenging the fairness of the selection process. He went on to find that there was "an appearance of impropriety in the selection" because the evidence demonstrated that there was "a long standing rumor within the command" that connected the selectee with a panel member who was aware of the rumor but who didn't excuse himself from the panel or inform the other panel members of the rumor. (The arbitrator found, however, that there was "a lack of determinative evidence in the record to answer [the] question of [whether the panel was biased].") He further found that the evidence established that the grievant's work experience was predominantly in ship repair whereas the selectee's work experience was predominantly in supply. He also determined that under the ranking factors, the dominant experience sought was ship repair experience, not supply experience. Yet the panel's interview questions focused on supply. He concluded that the interview questions unfairly favored the selectee over the grievant, and this, when combined with the rumor that one panel member was biased in favor of the selectee, led him to conclude that "the selection process was not fair nor in compliance with regulations or the parties' labor agreement." As a remedy he directed that the selection be vacated, the promotion action be rerun, the rating/recommending panel not include any members of the previous panel, and that the new panel ask interview questions that favored ship repair over supply experience. The agency filed exceptions to the award. The Authority rejected the agency's arbitrability claim, which at bottom was a claim that the arbitrator misinterpreted the agreement's provision excluding mere non-selection from the negotiated grievance procedure. The arbitrator interpreted that contract provision as not barring grievances challenging the fairness of the selection process. As the agency didn't demonstrate that the arbitrator's interpretation was unfounded, implausible, or irrational, it failed to show that the award failed to draw its essence from the agreement. FLRA also rejected the agency's claim that the portion of the award directing the agency to remove the selectee from her position was inconsistent with "the principles of corrective action" found in Federal Personnel Manual (FPM) Chapter 335, Appendix A. The events giving rise to the grievance occurred during 1998, well after the FPM was abolished effective December 31, 1994. The Authority agreed with the agency's claim that the award affected management's right to assign work (by ordering that the selection panel used in the rerun action "not include any panelist from the earlier process") and its right to select (by directing that interview questions favor ship repair over supply experience, thus affecting management's right to determine the qualifications for the position). FLRA had noted that when exceptions allege that an award affects management's rights, the Authority applies its two-prong BEP test. Under the first prong, the Authority asks if the award provides a remedy for a violation of either an "applicable law" (within the meaning of section 7106(a)(2)) or a section 7106(b) contract provision. If so, it then considers, under the second prong of the BEP test, whether the remedy constitutes a reconstruction of what management would have done had it not violated the applicable law or section 7106(b) contract provision. Applying the first prong to the award at issue, FLRA concluded that "the Arbitrator did not identify any specific regulation or provision of the parties' collective bargaining agreement that was violated in connection with either the interview questions or the participation on the panel by the disputed Agency official. Member Wasserman disagreed, believing that "an arbitrator should not be required to explicitly express the provision of the parties' agreement relied upon in formulating a remedy, when the intended meaning of the award is clear." He would find that the post-hearing brief, which identified a contract provision dealing with rating criteria, and the arbitrator's findings demonstrated that the remedy was based on a violation of the contract provision stating that "[r]ating criteria shall not be tailored to fit a certain employee or applicant." The majority wasn't persuaded, noting that the contract provision "appears unrelated to the Arbitrator's finding that is central to the exceptions now before us: that there was 'an appearance of impropriety' regarding the disputed Agency official's participation on the selection panel." It accordingly remanded the award to the parties for resubmission to the arbitrator for a clarification of the basis of his award. Comments It does not seem to us to be asking too much of an arbitrator to specify the "applicable law" or contract provision allegedly violated. What if an agency justified its action by saying that it was required by law or regulation, and didn't bother to specify the law or the regulation? Would any arbitrator let management get away with such a cavalierly nonspecific justification? (We know FLRA won't let management--or a union--get away with exceptions alleging violations of unspecified laws or regulations.) Arbitrators already are given considerable latitude in interpreting agreement provisions. The least they can do in return is to identify the contract provision they are interpreting. If they aren't required to do so, how could FLRA ever find that an arbitrator's interpretation is "unfounded, implausible, or irrational"? 56 FLRA No. 47 Department of the Navy, Commander, Naval Base, Norfolk, Virginia and National Association of Government Employees, Local R4-1, SEIU, AFL-CIO, WA-RP-80061, May 5, 2000 Holdings
Summary As the result of a reorganization, the functions of an installation-wide unit of employees at the Weapons Station Yorktown (WSY) were reassigned to (1) a new WSY, (2) the Atlantic Ordnance Command (AOC), and (3) the Housing Department and the Regional Resources Service Office (RRSO) of the U.S. Department of the Navy, Commander, Naval Base, Norfolk (COMNAVBASE). The duties, supervisors, and the work locations of the employees of the original WSY were not changed as a result of the reorganization. However, there are now separate RIF competitive areas for AOC, and COMNAVBASE and the new WSY. Personnel services are provided to WSY and AOC employees by the Yorktown Satellite Office. Such services are provided by the Norfolk Human Resources Office to COMNAVBASE employees. The commanding officers of the new WSY and AOC, who report to the commanding officer of COMNAVBASE, have full authority to set working conditions and labor relations policies for WSY and AOC employees, respectively. Competing representation petitions were filed by the union and the agency, with the former asserting that the unit remained appropriate and that COMNAVBASE is a successor employer regarding all the employees of the original WSY. The agency asserted that the original unit was split into two appropriate units: employees at the new WSY and employees at the AOC. The six employees that were transferred to COMNAVBASE are not included in either the new WSY or the AOC units. Although the Regional Director granted the agency's petitions, the Authority granted the union's application for review, finding that existing precedent didn't provide sufficient guidance regard-ing organizational changes that affected lines of command, but that did not otherwise alter bar-gaining unit employees' conditions of employment. The Authority asked the parties, as well as interested persons, to address the issues raised by such a reorganization. The order in which competing successorship claims will be considered. After considering the briefs of the parties and amici (FLRA's Office of the General Counsel and the American Federation of Government Employees), the Authority said the following on how it will resolve competing claims of successorship: [W]hen we are presented with competing successorship claims alleging different appropriate units, we will first consider the appropriate unit claim that will most fully preserve the status quo in terms of unit structure and the relationship of employees to their chosen exclusive representative. If we find that a petitioned-for, existing unit continues to be appropriate, then we will not address any petitions that attempt to establish different unit structures, because the Statute requires only that a proposed unit be an appropriate unit, not the most, or the only, appropriate unit. Chain of command, by itself, is not a determinative factor. It accordingly addressed the union's petition first. In doing so, it indicated "a change in chain of command will not, by itself, be found to render an existing unit inappropriate." First, inasmuch as agency-wide units are possible under the FSLMRS, this "implies that employees who work for the same agency, but are in different chains of command, are not automatically precluded from constituting a single appropriate unit." Second, since FLRA makes appropriate unit determinations on the basis of a variety of factors, it would be inconsistent with this practice to hold that changes in one factor, such as chain of command, renders an existing unit inappropriate. Third, "the Authority has held that there is a preference in the Statute for avoiding fragmentation of bargaining units when those units otherwise remain appropriate." Port Hueneme successorship criteria. FLRA noted that, under the principles announced in Port Hueneme, 50 FLRA No. 56, reported in Significant Cases No. 107, a gaining entity will be found to be a successor employer when: (1) an entire unit or a portion thereof is transferred and the transferred employees (a) are in an appropriate unit, (b) constitute a majority of the employees in such a unit; (2) the gaining entity has substantially the same mission as the losing entity and the transferred employees perform substantially the same duties and functions under similar working conditions in the gaining entity; and (3) it has been determined that an election isn't necessary to determine representation. Insufficient record. FLRA found that since the employees all report to COMNAVBASE, either directly or indirectly, they were "transferred" to COMNAVBASE for the purpose of successorship analysis. However, the record was insufficient to determine whether the transferred employees are in a separate appropriate bargaining unit. Among other things, the record provided no information on other COMNAVBASE employees who would not be included in the unit petitioned for by the union. "Thus, we are unable to assess whether the petitioned-for unit would constitute an appropriate unit, separate and apart from those employees." FLRA accordingly remanded the case to the Regional Director "for further findings as to whether the existing unit remains appropriate and whether the second and third Port Hueneme requirements are met." Chairman Wasserman did not think a remand was necessary. He found that the existence of separate competitive areas for RIF purposes did not undermine the community of interest of the employees at issue. "It is not uncommon for a bargaining unit to have separate competitive areas; nation-wide consolidated units must have separate competitive areas for RIF." He also found that the record indicated that the unit proposed by the union would promote effective dealings. "There is no evidence to place in doubt the presumption, under the typical operation of a chain of command, that COMNAVBASE has the authority to set working conditions for WSY and AOC employees." And he found that the unit would support efficiency of operations. "The commanding officer of COMNAVBASE undoubtedly does have the authority to set policy and bargain for every component that reports to him, thereby guaranteeing the efficiency of the combined unit." He went on to find that the other requirements of Port Hueneme were met to establish successorship. "Additionally, no other labor organization represents, or seeks to represent, the transferred employees. As such, it has not been demonstrated that an election is necessary to determine representation[.]" Comments Even though the matter is still undecided, it seems to us that FLRA, and Chairman Wasserman in particular, is sending a strong signal that rather than allow reorganizations that do little more than make changes in chains of command to fragment existing units, FLRA will be inclined to preserve more comprehensive existing units by finding an organizational entity at a higher level in the agency's organization to be a successor employer. Thus certain types of reorganizations can have the effect of elevating the level of recognition. And if the higher level has greater unreserved discretion over conditions of employment than the lower level, such reorganizations can also result in the expansion of the scope of bargaining. 56 FLRA No. 40 National Air Traffic Controllers Association, Rochester Local and U.S. Department of Transpor tation, Federal Aviation Administration, Rochester, New York, 0-NG-2486, April 28, 2000, 56 FLRA No. 40. Holding Adopting the rationale of the Supreme Court in Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Company, Chemical Division, 404 U.S. 157 (1971) (Pittsburgh Plate Glass), the Authority holds that the fact that the parties once bargained and reached an agreement relating to the work assignments of supervisors (a permissive subject of bargaining), does not make the subject a mandatory topic of future bargaining--i.e., the agreement does not mean that the agency is obligated to bargain over adjustments to the agreement's provisions on the work assignments of supervisors. (In a footnote FLRA reminds us, however, that existing provisions on a permissive subject of bargaining are enforceable if otherwise consistent with law and regulation.) Summary In a memorandum of understanding (MOU), which could be reopened for purposes of modification, the parties established the conditions under which annual leave could be used by unit employees. Under the MOU, supervisors are to be included among available personnel for purposes of determining whether a minimum staffing level exists to cover operational duties so as to grant a unit employee's leave request. By past practice supervisors were included in the advance leave schedule in order to determine their availability to perform operational duties. The agency, however, decided to discontinue listing supervisors' leave on the advance schedule because the number of supervisors had been reduced and fewer supervisors were available to cover supervisory and administrative duties. Although the union believed the agency's action was a violation of the MOU, it nonetheless elected to advance proposals designed to require the agency to continue the existing leave process, as well as make other adjustments to the process involving, among other things, the work assignments of supervisors, rather than seek to enforce the MOU through, e.g., the negotiated grievance procedure. Because the proposals sought to make adjustments to the MOU, FLRA held that the proposals were properly before it for a negotiability determination. FLRA noted that under both Authority and judicial precedent, proposals that directly implicate the conditions of employment of supervisors are outside the duty to bargain. 52 FLRA 830, 835 (1966). It also pointed out, citing 52 FLRA 677, 682 (1996), that the Authority has held that "matters pertaining to supervisors' conditions of employment are permissive subjects of bargaining, although any agreement thereon must otherwise be consistent with the Statute." The proposals at issue would require bargaining over supervisory work assignments, a permissive subject of bargaining "[u]nless there is some other basis for finding the proposals to be within the duty to bargain[.]" In this connection, the union argued that the agency had a duty to bargain over its decision to remove the supervisors from the leave schedule because it had agreed to provisions governing the work assignments of supervisors in the MOU. FLRA, relying on the Supreme Court's decision in Pittsburgh Plate Glass, rejected the union's argument. It noted that the Court in Pittsburgh Plate Glass had held that "[b]y once bargaining and agreeing on a permissive subject, the parties, naturally, do not make the subject a mandatory topic of future bargaining." 404 U.S. at 187. Applying the Court's rationale to the case at bar, FLRA said the following: [T]he fact that the Agency agreed to the MOU does not mean that it is obligated to bargain over adjustments to provisions of the MOU relating to work assignments of supervisors, a permissive subject of bargaining. [FLRA invited comparison to its holding in 51 FLRA 133, 135 (1995), that the fact an agency agreed to a proposal in a previous contract didn't make a nonnegotiable matter negotiable.] The proposals at issue in this case concern supervisory conditions of employment and . . . the Agency has no obligation to bargain over that matter under the Statute. Because the proposals were outside the duty to bargain because they dealt with the conditions of employment of supervisors (and not because they affected a management right), FLRA found it unnecessary to address the union's claims that its proposals were negotiable under section 7106(b). In a footnote FLRA emphasized that "our decision herein that the proposals are outside the duty to bargain does not constitute a ruling on the enforceability of [the] MOU." It noted that contract provisions directly implicating the conditions of employment of supervisors are enforceable if otherwise consistent with law and regulation. It also pointed out that management rights arguments in an arbitration context are evaluated under the BEP (discussed in 56 FLRA No. 48, reported above) and abrogation standards. 56 FLRA No. 39. U.S. Department of the Navy, Naval Explosive Ordinance Disposal Technology Division, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 0-AR-3199, April 28, 2000, 56 FLRA No. 39. Holding The Authority turned down agency exceptions to an award in which the arbitrator--relying on testimony by supervisors and representative employees regarding the accuracy of the grievants' position descriptions (PDs) and comparing those PDs with the PDs of employees the agency, in an earlier settlement agreement, had agreed were non-exempt--found that the grievants were improperly exempted from the overtime coverage under the Fair Labor Standards Act (FLSA). Summary In a partial settlement of a class-action grievance involving the claim of 29 Equipment Specialists that they were improperly exempted from FLSA overtime coverage, the agency agreed to reclassify 21 of the Equipment Specialist positions as nonexempt positions covered by the FLRA overtime provisions and to refer the remaining portion of the grievance involving 8 Equipment Specialists positions to arbitration. The arbitrator stated that she had considered the record of the hearing in its entirety, stated that the official PDs for the 8 positions at issue had to be used to establish whether the FLSA exemption determinations were properly made, and found persuasive the testimony of 2 supervisors and 4 employee representatives that the PDs at issue were correct "creditable and therefore compelling." After comparing the grievants' PDs with those of the 21 specialists who were reclassified as nonexempt as a result of the parties' partial settlement agreement, the arbitrator said the following: If the set of duties, knowledge required, and supervisory controls are either the same or essentially the same, then the positions must all carry the same classification for FLSA overtime. Since the parties have already determined that the similar positions are non-exempt, then these . . . positions must also be non-exempt. She also concluded that liquidated damages were appropriate because the agency "failed to make a good faith effort . . . in determining the [FLSA] status" of the 8 grievants. However, the agency's failure to conduct an "in-depth review" didn't constitute willful behavior. She accordingly sustained the grievance, ordered the agency to remove the FLSA exemption for the 8 grievants, and ordered backpay and liquidated damages for uncompensated overtime for the two years prior to the filing of the grievance. FLRA rejected the agency's claim that the arbitrator's consideration of the employees' PDs was contrary to law. Although the Award contains language overstating the importance of PDs in making FLSA determinations, we find that the Agency has not established that the Arbitrator failed to consider the specialists' actual or day-to-day duties in making the exempt status determinations. . . . In line with . . . direct, uncontested testimony of the employees and their supervisors that the PDs were accurate representations of the work performed, the Arbitrator appropriately considered the "set of duties, knowledge required and supervisory controls" delineated in the PDs. It also rejected the agency's claim that the arbitrator's consideration of the nonexempt status of the other employees with same or similar duties was contrary to law. The agency's reliance on two court rulings that exempt status determinations couldn't be based on similarly situated employees with the same job title was misplaced as the arbitrator didn't merely rely on the fact that the grievants had the same job title as the nonexempt specialists, but instead "considered the duties described in the PDs as the actual or day-to-day work of the grievants and the specialists covered by the settlement agreement in line with the testimony of the supervisors to this effect." Moreover, the Seventh Circuit, in Piscione v. Ernst & Young, L.L.P., 171 F.3d 527 (7th Cir. 1999), made exempt status determinations based in part on comparisons with other employees. "Here, the Arbitrator's comparison of the duties of the twenty-one nonexempt specialists is consistent with the comparative analytical approach in Piscione." Nor was the arbitrator's award of liquidated damages contrary to law. "[T]he Agency has offered no evidence that it took affirmative steps that would meet the substantial burden necessary to overcome the presumption in favor of liquidated damages. Thus, we affirm the Arbitrator's legal conclusion that the Agency did not act in good faith and find that the award of liquidated damages is not contrary to law." The agency's nonfact exception was rejected because it didn't challenge the arbitrator's findings of fact, but rather took issue with "the Arbitrator's interpretation of what evidence governs the determination of the professional exemption." Finally, FLRA rejected the agency's claim that the arbitrator's use of the partial settlement agreement was contrary to the public policy that fosters compromise and settlement of litigation/disputes. The agency's argument concerning the admissibility of the partial settlement agreement under the Federal Rules of Evidence was without merit as the Authority has held that the Federal Rules of Evidence are not applicable to arbitration hearings and awards. 39 FLRA 407, 413 (1991). Moreover, the record indicated that the arbitrator relied not only on the settlement agreement, but also considered the PDs of the 21 specialists who were reclassified as nonexempt. Finally, the settlement agreement contained neither a confidentiality clause nor a non-admission clause. 56 FLRA No. 30 Association of Civilian Technicians, Inc., Heartland Chapter and U.S. Department of Defense, National Guard Bureau, Iowa National Guard, 0-NG-2491, March 31, 2000, 56 FLRA No. 30. Holding A proposal requiring management to use the union's crediting plan in evaluating candidates for vacancies is negotiable because, under the proposal, the agency is still "able to establish its own alternative crediting plan, apply it to the same candidates' qualifications, and forward the results therefrom to the selecting official as well." In thus finding that the proposal, when considered as a whole, did not interfere with management's right to select, the Authority relied on its decision in 2 FLRA No. 77, # III, where it held that as long as an "options" proposal contained a nego-tiable option, the proposal as a whole is negotiable. Or, as FLRA puts it in this case: "where a proposal prescribes a particular selection criterion [which would, by itself, interfere with the right to select], but also provides management an option that preserves its right to select, the proposal does not affect the exercise of that right." Summary The National Guard Bureau (NGB), as a result of performing a § 7114(c) review of an agreement negotiated by the Iowa National Guard, disapproved a provision requiring the Iowa National Guard to use a negotiated crediting plan when evaluating candidates for bargaining unit vacancies on the ground the provision violated management's rights. Although the union filed a negotiability appeal challenging the NGB's disapproval, it subsequently withdrew its request and submitted a proposal that substantively revised the disapproved provision. The proposal, although requiring management to consider the rankings generated by the application of the previously disapproved crediting plan, said those rankings weren't binding on the selecting official who could "receiv[e] or consider[] other information or analyses regarding the qualifications of [the] candidates." When the union invoked the services of the Impasses Panel, the agency told the Panel that the proposal interfered with management's rights under section 7106(a)(2)(B) and (C). The union consequently withdrew its request for Panel assistance and filed a negotiability appeal. Management argued, among other things, that the disputed proposal interfered with management's § 7106(a)(2)(C) right to make selections from any appropriate source. In addressing this argument, the Authority noted that it had previously held that the section 7106(a)(2)(C) right to select "includes the right to determine the qualifications, skills, and abilities needed to perform the work of a position and to determine whether applicants possess such qualifications, skills, and abilities." See 48 FLRA No. 15 (48 FLRA 168, 195 (1993).) The Authority further noted that "[p]roposals that prescribe the criteria to be used in assessing the extent to which candidates possess the requisite qualifications, skills, and abilities, and the weights to be given such factors, affect management's right to select." See 45 FLRA No. 2 (45 FLRA at 20) and 28 FLRA No. 65, #12, 2, 2nd & 3rd sentences (28 FLRA at 456). "Conversely, proposals that prevent management from establishing particular assessment criteria and weights also affect management's right to select." See 16 FLRA No. 114 (16 FLRA 816, 823-24 (1984)). But where a proposal preserves a section 7106(a) right to act, it doesn't affect the exercise of that right. See 44 FLRA No. 116 (44 FLRA 1405, 1477 (1992)). The Authority then turned to one of its early decisions--2 FLRA No. 77, proposal # III--to support the key proposition that "where a proposal prescribes a particular selection criterion, but also provides management an option that preserves its right to select, the proposal does not affect the exercise of that right." (Emphasis added.) Although the originally disapproved provision--in prescribing the criteria and weights to be used in assessing the qualifications, skills, and abilities of the candidates to perform the work of a position--affected management's right to select, the proposal in dispute--which was a modified form of the disapproved provision--preserved management's right to establish and apply its own crediting plan and forward the results to the selecting official. Thus, under [the modified version of the disapproved provision], even though management must use the prescribed crediting plan, in doing so . . . it does not lose the ability to develop its own crediting plan and provide the selecting official with information about the candidates that reflects its own priorities. Because management could develop its own crediting plan . . . [the disputed proposal] would not affect management's right to select under section 7106(a)(2)(C). Comments It must be emphasized that the Authority, in this decision, is not saying that crediting plans, as such, do not affect the right to select. The disputed proposal doesn't interfere with the right to select because that portion of the proposal that does interfere with the right to select is not exclusive (management is free to devise, apply, and use an alternative crediting plan) and because the results of the application of the union's crediting plan need only be "considered" (i.e., selecting officials, after considering the rankings generated by application of the union's crediting plan, can end up using the results of management's crediting plan as the basis for their selection decisions). Although negotiable, the proposal is of questionable merit. If included in a contract , it could be misleading, its extra steps could further delay the filling of vacancies, and it could invite grievances and complicate their resolution. Unless read with great care, the provision could be misleading: the applicant might think that the controlling crediting plan is the one explicitly laid out by the contract, when the odds are that the selecting official will use the results of management's crediting plan in making his/her decision. (It could be argued that provisions similar to the disputed provision might give non-unit applicants, who normally would not be aware of the crediting plan described in the contract, an advantage over unit applicants as they would not be similarly misled.) It could further delay the filling of vacancies by requiring rating panels to apply two crediting plans rather than one and require the selecting official to consider two, rather than one, set of rankings. (Compare the proposal with other "sequential consideration" proposals.) And it seems to us self-evident that unclear and misleading provisions invite grievances and complicate their resolution. How does one explain to the non-selected grievant--and to an arbitrator (who tends to regard contract provisions as being meaningful)--why the contract is at pains to describe a crediting plan that isn't used as the basis for making selection decisions? MSPB DECISIONS LAST CHANCE SETTLEMENT AGREEMENTS Ronald A. Fassett v. United States Postal Service, 0752960468-M-1, April 19, 2000. Holding An appellant may demonstrate that a settlement agreement was coerced, and thus, involuntary, by showing that the agency threatened to take a future disciplinary action that it knew or should have known could not be substantiated. Summary The agency proposed the appellant's removal based on a positive drug test after an on-duty motor vehicle accident, and then entered into a last chance settlement agreement which required that the appellant submit to biweekly scheduled urinalyses. After appellant refused to submit to an agency-ordered urinalysis, the agency proposed removal based on a violation of the agree ment. The agency once again entered into a last chance settlement agreement with the appellant, and again proposed removal based on a violation of the agreement. The MSPB upheld the removal action (see Fassett v. U.S.P.S. 81 M.S.P.R. 275 (1999), especially Beth Slavet's dissent). However, the Federal Circuit, in Fassett v. U.S.P.S., No. 99-3271 (Fed.Cir. Feb.18, 2000), remanded the case for further consideration of the validity of the settlement agreement. In its remand decision, the Board extended the Federal Circuit's holding in Schultz v. Navy, 810 F.2d 1133 (Fed. Cir. 1987), which dealt with involuntary resignation, to settlements. The Board held that an appellant may demonstrate that a settlement agreement was coerced, and thus, involuntary, by showing that the agency threatened to take a future disciplinary action that it knew or should have known could not be substantiated. The Board noted that in this case, the terms of the first settlement agreement did not give the agency the authority to order the appellant to submit to a urinalysis, but rather required appellant only to submit to a biweekly scheduled urinalysis. It found that when the agency proposed action for failure to comply with the terms of the settlement agreement, it should have known this charge could not be substantiated. It found that appellant's removal was purely coercive and, therefore, it reversed the removal action. Comments While last chance agreements are often an effective option in dealing with problem employees, it is important to carefully consider the terms of the agreement. If an agency decides to remove an employee for violating the agreement, the agency is limited to the specific terms of the agreement. There is an interesting concurring opinion in this case by Member Susanne Marshall expressing her concern about the effect this decision will have on the settlement process. She noted that what the court has effectively done is to relitigate a charge that the parties had resolved through settlement. She said, "By allowing a settlement to be declared invalid after-the-fact simply because in retrospect one party or the other had a weak case removes the finality and certainty from the settlement process. This has the potential to do great fundamental harm to the process." USERRA/VEOA Ronald Fahrenbacher and Patrick J. Sheehan v. Department of Navy, CH3443980656-I-1 & CH3443980724-I-1, March 22, 2000. Holding In appeals alleging a violation of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), an appellant who charges discrimination based on military service must demonstrate that the agency treated the appellant worse than a non-veteran because of the appellant's military service. It is not sufficient to show that the agency did not treat the appellant better than non-veterans. Summary The appellants were both retired from the Navy Judge Advocate General (JAG) Corps when they applied for a civilian position with Department of Navy. The vacancy they applied for was a GS-14 Counsel to the Commander position. Neither of the appellants was selected for the position and both filed appeals with the MSPB alleging that the agency discriminated against them on the basis of their prior military service when they were not selected for the position. Two different judges heard their appeals. Appellant Fahrenbacher's appeal was denied and appellant Sheehan's request was granted. The full Board consolidated the subsequent petitions for review filed by Fahrenbacher and the Department of Navy. The full Board found no discrimination on the basis of prior military service in either of these cases. In arriving at its conclusions, the Board first denied the agency's arguments that the appeals were not within the jurisdiction of USERRA and were untimely filed. The Board stated that it has broadly interpreted USERRA and found no reason to exclude the two appellants based on the agency's argument that the law was intended only to cover those employees with a current or future military obligation. Secondly, the Board noted that it has amended its regulations to remove a time limit for filing USERRA claims on the belief that the law did not intend such a restriction. The Board then addressed the appellants' argument that the agency failed to properly apply the concept of veterans' preference when selecting among candidates for an excepted service position. The Board rejected this argument, finding that the selection for the position was made at a time when the Board had no jurisdiction over such a claim. (The Board noted that in 1998, Congress passed the Veterans Employment Opportunities Act (VEOA), that provides preference-eligible individuals with a right to seek resolution of a complaint with the Secretary of Labor, and if resolution is not reached, then to appeal to the MSPB.) The Board conducted an extensive review of the record and found that the agency's position that it had selected an applicant with more specialized experience than the appellants was supported by the record. Although both appellants had excellent resumes including years of legal experience, the resume of the individual selected for the position identified more experience in the area of law required for the vacant position. The Board emphasized that it was not tasked with determining who was the best candidate, or whether the appellants had been given an advantage due to their previous military status, but whether their prior military service was an unlawful motivating factor in the agency's final selection. Ultimately, the Board found no discrimination based on the appellants' prior military service. Appellant Fahrenbacher's initial decision was upheld and appellant Sheehan's initial decision was reversed. Early in the decision, the Board found that the agency had complied with the interim relief ordered in appellant Sheehan's case, despite the appellant's allegations of non-compliance. Interestingly, the Board stated (in footnote 2) that it was leaving open the question of whether interim relief could be ordered in a USERRA case. The Board commented that since USERRA claims are not subject to the provisions of 5 USC §7701, it may be argued that interim relief (found at 5 USC §7701(b)(2)) would not apply to these cases. It declined to issue a ruling on the question here because the agency had not made the argument and had, in fact, complied with the interim relief order. Clearly the Board will be looking at this argument in future USERRA cases. Comment While VEOA did not apply to appellants here because of its date, it is a warning flag for agencies. The appeal right created by the Act means agency appointing actions are under much greater scrutiny than in the past. Actions will be reviewed to determine whether veterans have received all preferences to which they are entitled under law. This determination is not always obvious either to agency representatives or to administrative judges. For one thing, preference is applied differently in competitive service examining than in recruitment for excepted service positions. Additionally, some appointing authorities are non-competitive, and allow the agency to hire any applicant who meets defined criteria, without regard to the availability and preference of other candidates. Agencies must ensure that their selection procedures are in conformance to applicable law, and be able to explain in detail and on the record how veterans preference did or did not apply to an individual hiring decision. DISABILITY DISCRIMINATION Daniel F. Fitzgerald v. Department of Defense, SE-0752-98-0221-I-1, March 17, 2000. Holding Where charged misconduct is proven, even a proven disabling condition does not insulate an employee from disciplinary action. Summary The appellant was a teacher with the Department of Defense Dependent Schools (DODDS). He was reassigned from Germany to Japan in 1996. Although all DODDS teachers are employed under mobility agreements, the appellant asked not to be transferred because he didn't want to uproot his family and wanted to remain in the care of the physician who was treating his bipolar condition. The agency denied the appellant's request and ordered him to report to his duty station in Japan. The appellant remained in Germany, asked and received extended periods of sick leave during the 1996 school year, and the agency eventually ordered him to a fitness-for-duty examination. The examination confirmed the existence of his mental impairment but the examining physician did not make any definitive statement regarding the reassignment. The appellant submitted medical information from his physicians but, other than a general statement that the employee should not make any drastic life changes, the attending health care provider gave no specific statement regarding the reassignment. The appellant eventually reported for duty in Japan during the 1997 school year. During the course of that year, the appellant engaged in disorderly and disrespectful behavior, including failing to follow an order, that led to his removal from Federal service. The charges were sustained on appeal. The administrative judge found the appellant to be an individual with a disability but did not find him to be a qualified individual with a disability because he did not show that he could perform his duties with or without accommodation. Further, the AJ held that the appellant had not demonstrated that the misconduct had been caused by his disability. The appellant petitioned to the full Board for consideration of the decision. The full Board reopened the case to address the issue of disability discrimination. The Board found that the appellant's impairment did not "generally foreclose" him from performing his duties as a teacher. In fact, he had been able to carry out his teaching duties since he was diagnosed in 1986. The Board went on to say that, even if his condition were determined to be a disability, such a disabling condition did not insulate the appellant from discipline. The MSPB found the charged misconduct to be in violation of the agency's workplace standards and antithetical to the mission of providing "education within a safe environment for its students." The Board sustained the removal and found no disability discrimination, based on its analysis. TIMELINESS Kenneth F. Drose v. Postal Service, CH-0752-99-0514-1-1, February 2, 2000. Holding In taking an appealable action, an agency has an affirmative duty to provide full and accurate information to an employee regarding his appeal rights and failure to do so is the critical and controlling fact showing good cause for the employee's filing. Summary The appellant was removed from his position based on a charge of excessive absence without leave. After receiving notification of this action, the appellant questioned an agency official regarding his appeal rights and was incorrectly informed that he did not have such rights. Later, he consulted an attorney who informed him that he had Board appeal rights but that the time limit for filing a Board appeal had expired. The agency did not respond to a letter from the attorney demanding that the agency rescind and effect a new removal action. As a result, the attorney sought relief by filing an action in a district court. This action was dismissed for lack of jurisdiction, noting that "[a]ny equitable defenses to timeliness/statue of limitations that might preclude an appeal [to the Board] must be raised before the MSPB." The appellant then filed his Board appeal, which was dismissed as untimely filed. The AJ found that the appellant had demonstrated, on at least two occasions, that he had actual knowledge of his appeal rights but failed to exercise due diligence in pursuing those rights, and thereby failed to show good cause for filing his delay. The appellant then filed a petition for review with the full Board, arguing that the AJ erred by finding that he failed to show good cause. The Board first noted that where an agency has an obligation to provide notice of appeal right, the obligation is not satisfied by a mere reference to Board appeal rights and then went on to state that general notice of Board appeal right from a source other than the agency does not excuse the agency's failure to inform an employee of his appeal rights, where the notice does not inform him of the time limit for filing an appeal and lack other information on where and how to file such an appeal. The Board relied on Shiflett v. U.S. Postal Service, 389 F.2d 669, 673 (Fed. Cir. 1988), in which the Federal Circuit stated: The critical and controlling fact . . . is not the alleged lack of diligence on the part of the petitioner, but the flagrant violation of the regulations by the respondent in failing to give petitioner notice of her appeal right in the for and manner prescribed by the regulations at the time the . . . decision [on the appealable action] was issued . . . or any time thereafter. The Board also referred to Nicoletti v. Justice, 55 M.S.P.R. 557 (1992), a case with somewhat similar facts, where the employee was never notified by the agency of his Board appeal rights and, in the absence of such notice, received incorrect advice from his attorney. In that case, the Board held the employee did not have "sufficient notice of his appeal rights . . . to file a timely appeal with the Board." Since the employee in this instant case promptly filed the appeal within 2 weeks after receiving notification from the court that he must file a board in order to pursue this matter, the Board concluded that he showed good cause for his filing delay. Accordingly, the AJ's dismissal of the appeal as untimely filed was reversed. Comments The lesson here is clear. Where an agency fails to fully inform an employee of his or her appeal rights, the Board will find good cause for a delay in any filing of an appeal, even if the employee relies on incorrect information from a non-agency source. DISABILITY DISCRIMINATION Barbara Shestak v. Social Security Administration, 84 MSPR 307 (November 1, 1999) Holding In assessing whether a medical condition is a "disability" requiring reasonable accommodation, the Board will consider whether the effect of medication mitigates the impact of the condition. Summary The employee was demoted from her position of Claims Representative, GS-11 to a GS-8 Contact Representative position based on her medical inability to perform the essential functions of her job. The appellant chose to take the matter to arbitration and the arbitrator upheld the agency's action. With regard to the appellant's argument that the agency had failed in its obligation to reasonably accommodate her disabling condition of depression, the arbitrator ruled that the employee had failed to prove that her condition was disabling. Noting the evidence that medication controlled the effects of the mental condition, the arbitrator found that the employee did not demonstrate that her medical impairment substantially limited any major life activity. Because the employee included a claim of discrimination (alleging that she was affected by a prohibited personnel practice under 5 USC 2302(b)(1)) in her complaint to the arbitrator, the Board had jurisdiction to review the arbitration award. The Board found no basis for disturbing the award because the arbitrator's analysis was consistent with the Supreme Court's holding in Sutton v. United Air Lines, Inc., 119 S.Ct. 2139 (1999). In that decision, the Court found that it is appropriate to consider the mitigating effects that medication has on an individual's impairment. The Board also spent some time discussing the appellant's argument that the arbitrator erroneously placed the burden on her to prove that face-to-face interviews were not an essential function of the job. Since the agency based its demotion on the appellant's inability to carry out these duties, the appellant argued that the burden should have been on the agency to prove that these tasks were essential. The Board noted that a split exists in the courts regarding this issue and that the arbitrator could not have been found to have made a legal error if conflicting court decisions have not been resolved. However, the Board noted that the appellant's argument was moot because the arbitrator had correctly found that her impairment did not substantially limit a major life activity. Comment The area of case law that defines a "disability" under the Americans with Disabilities Act and the Rehabilitation Act has become increasingly complicated. With the Shestak decision, the Board brought its case law into conformity with the Supreme Court ruling and the EEOC has issued several similar decisions in the year since the Court issued its landmark holding. Other relevant MSPB decisions on this topic include: Sylvia F. McFadden v. Department of Defense 85 MSPR 18 (1999) and Niranjan D. Vyas v. Dept of the Army 83 MSPR 452 (1999). Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930. |
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