Number 123
March 1998
Court Decisions
| FLRA
| MSPB
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.
WHISTLEBLOWING ... INDIVIDUAL RIGHT OF ACTION.
The Merit Systems Protection Board (MSPB, Board) may dismiss an appeal
as moot if the appealable action is canceled or rescinded by the agency.
However, if the threat of personnel action still reasonably exists, a
claim of reprisal for whistleblowing is not necessarily rendered moot
when an agency rescinds its formal proposal notice. Ray L. Kagel, Jr.
v. Department of the Army, No. 96-3385, (Fed. Cir. October 15, 1997).
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EXCEPTIONS TO AWARDS ... REMANDING PORTIONS OF AWARDS FOR NECESSARY FACTUAL FINDINGS. FLRA announces that it intends to remand those portions of arbitration
awards "that are challenged by . . . exceptions and that fail to
contain the factual findings necessary to determine whether the arbitrator's
legal conclusions are consistent with the applicable standard of law."
It also reminds arbitrators that "the standards and burdens of proof
found in law, rule, or regulation extend to arbitrators. . . . [A]n arbitrator's
failure to apply the prescribed standard will constitute a basis for finding
an award deficient." Because the award at issue had no discussion
or analysis of a prohibited personnel practice (PPP) allegation, FLRA
remanded the matter to the parties for resubmission to the arbitrator.
National Federation of Federal Employees, Local 1437 and Army Research,
Development and Engineering Center 0-AR-2809, March 31, 1998,
53 FLRA No. 152.
ATTORNEY FEES ... SUCCESS FEE ... CLEAR, REASONED EXPLANATIONS. When the union, on behalf of grievants, incurred an obligation to pay
attorney fees to a law firm, those fees were incurred by the grievants
within the meaning of section 7701(g)(1). Given that the law firm offered
two rates keyed to whether it failed or succeeded, FLRA held that since
the grievants prevailed, they incurred the "success fee." However, the
arbitrator's award of hearing expenses was deficient because it did not
provide a clear and reasoned explanation of why the expenses were recoverable.
FLRA also announced that, consistent with MSPB practice, it would no longer
vacate without further proceedings attorney fee awards that are deficient
because the arbitrator didn't adequately explain the application of pertinent
statutory requirements. Except where the record permits FLRA to modify
the award, it will remand the matter to the parties for further proceedings.
Department of Agriculture, Animal and Plant Health Inspection Service and
National Association of Agriculture Employees, 0-AR-2907, March 31, 1998,
53 FLRA No. 150.
ATTORNEY FEES ... ATTORNEY-CLIENT RELATIONSHIP ... PARALEGAL FIELD ... REPRESENTATIVE UNDER SUPERVISION OF NATIONAL COUNSEL. FLRA held that the arbitrator's determination that inasmuch as the
union's national counsel, an attorney, was responsible for directing
and overseeing all aspects of the case through a paralegal field representative,
an award of fees for the paralegal services is consistent with case precedent.
Federal Deposit Insurance Corporation and National Treasury Employees Union,
0-AR-2883, March 31, 1998, 53 FLRA No. 148.
FAIR LABOR STANDARDS ACT (FLSA) ... COVERAGE ... REMEDIES. Because arbitrators are bound to apply the remedies of the FLSA for
FLSA violations, the Authority awards liquidated damages to those employees
the agency had conceded were wrongfully exempted from FLSA coverage.
Regarding the back pay recovery period for these employees, the Authority
held that FLSA's two-tiered statute of limitations, not the Back Pay Act,
applied to FLSA cases. But since it was unable to determine from the record
whether the 3-year (for willful violations) or 2-year recovery period applied
in this case, it remanded this particular matter to the parties for resolution.
Federal Deposit Insurance Corporation [FDIC] and National Treasury Employees
Union [NTEU], 0-AR-2826, Feb. 17, 1988, 53 FLRA No. 134.
LIGHT DUTY ... INSUFFICIENTLY "TAILORED" ARRANGEMENTS. A proposal giving temporarily disabled employees the right to decline
light duty work on any shift other than their regular shift is insufficiently
tailored to qualify as a § 7106(b)(3) exception to management's right
to assign work. National Association of Government Employees, Local R14-23
and Defense Commissary Agency, Kelly Air Force Base, Texas, 0-NG-2369,
Feb. 27, 1998, 53 FLRA No. 131.
DEFICIENT AWARD ... NO "BUT FOR" RECONSTRUCTION OF THE EMPLOYER'S ACTION. Applying the 2-prong test it announced in 53 FLRA No. 21 (reported in
Significant Cases No. 119, p. 6) to determine whether arbitral remedies
interfere with rights reserved to management by § 7106, the Authority
found that a restitutional overtime remedy that had been directed by the
arbitrator is deficient because not based on a reconstruction of what the
agency would have done had it not violated the collective bargaining agreement's
"just cause" general standard. Department of Veterans Affairs
(DVA) Medical Center, Coatesville, PA and National Association of Government
Employees (NAGE), Local R3-35, 0-AR-2895, Feb. 27, 1998, 53 FLRA No. 129.
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MSPB DECISIONS
EXCESSIVE ABSENCE ... FAMILY AND MEDICAL LEAVE ACT (FLMA). A charge of excessive absence will be upheld when an employee is in
an unpaid leave status and there is no end in sight to the employee's
absence. Also, use of leave under the FMLA does not preclude the agency
from charging excessive absence, when the absence in question exceeds the
12-week period of absence covered by FMLA. Carl M. Cole, Administrator
of the Estate of Jane M. Pickering v. Department of Veterans Affairs,
NY0752960150-I-1, January 26, 1998.
CHARGES ... ABSENCE WITHOUT LEAVE (AWOL) ....
A charge of AWOL "for 10 workdays or more" can still be
sustained even when part of the AWOL charge is not upheld, resulting in
a period of AWOL of less than 10 workdays. Robb v. Department of Defense,
SF0752970055-I-1, January 6, 1998.
MSPB JURISDICTION ... MISUSE OF A GOVERNMENT-OWNED VEHICLE. Where an arbitration award upheld a 7-day suspension and the agency sought to impose an additional 23-day suspension based on the arbitrator
finding that a 30-day suspension was the minimum statutory penalty, the
Board had jurisdiction to review the 23-day suspension not-withstanding
the arbitration award. Westbrook v. Air Force, AT3443960818-I-1,
December 8, 1997.
PRIORITY CONSIDERATION. A right to priority consideration entitles an employee to bona fide consideration before any other candidate is referred. This right in no way requires that the employee be actually selected nor does it entitle the employee to review the merits of the agency's reasons for non-selection. Jeffrey A. Smith v, Department of the Interior, PH0351960126-X-1,
August 25, 1997.
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WHISTLEBLOWING ... INDIVIDUAL RIGHT OF ACTION
Ray L. Kagel, Jr. v. Department of the Army, No. 96-3385, (Fed. Cir. October 15, 1997).
The Merit Systems Protection Board (MSPB, Board) may dismiss an appeal
as moot if the action that was appealed is canceled or rescinded by the
agency. But where the threat of personnel action still reasonably exists,
a claim of reprisal for whistleblowing is not necessarily rendered moot
when an agency rescinds its formal proposal notice.
As the result of an agency investigation of the appellant, an
Environmental Resource Specialist, and the appellant's wife, who owned
an environmental site-planning business within the local district, the
agency concluded that an appearance of a conflict of interest existed
that impaired the efficiency of the agency's operations. The agency
therefore issued a directive to the appellant threatening to remove him
if his wife continued to operate her business within the local district.
The appellant filed a complaint with the Office of Special Counsel (OSC),
alleging that the agency's threat was taken due to his previous acts of
whistleblowing. While the appellant's OSC complaint was pending, the
appellant's wife agreed to temporarily discontinue her business activities
pending resolution of her husband's appeal. As a result, the agency
contended that the cessation of her business eliminated the threat of
the appellant's removal. An administrative judge agreed with the agency's
contention and dismissed the appellant's individual right of action (IRA)
appeal as moot.
The full Board denied the appellant's petition for review.
The U.S. Court of Appeals for the Federal Circuit (court) found that if
one relied on the agency's argument, the only way for the appellant to
obtain review of his IRA appeal would be to have his wife remain in business
and allow the agency to actually remove him. In contrast, the court held
that because the appellant invoked the Whistleblower's Protection Act by
alleging reprisal, he is entitled to appeal the threat of removal and does
not need to wait for the threat to be acted upon. Furthermore, the court
determined that if the appellant's wife were to resume her business, the
threat to remove the appellant would still exist. The court therefore
disagreed with the Board and concluded that the agency's removal threat
was still a live issue and the appellant's IRA appeal should not have
been dismissed as moot. The court vacated the Board's decision and remanded
the case for further adjudication.
This case is a good reminder that the Whistleblower Protection Act
and the related individual right of action covers "threats" of personnel
action as well as actual personnel action. Here the court found that a
continuing threat of removal existed even after the agency had withdrawn
the formal removal proposal.
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53 FLRA No. 152
EXCEPTIONS TO AWARDS ... REMANDING PORTIONS OF ARBITRATION AWARDS FOR NECESSARY FACTUAL FINDINGS
National Federation of Federal Employees,
Local 1437 and Army Research, Development and Engineering Center,
0-AR-2809, March 31, 1998, 53 FLRA No. 152.
FLRA announced that it intends to remand those portions of arbitration
awards lacking "factual findings necessary to determine whether the arbitrator's
legal conclusions are consistent with the applicable standard of law."
It also reminded arbitrators that "the standards and burdens of proof found
in law, rule, or regulation extend to arbitrators. . . . [A]n arbitrator's
failure to apply the prescribed standard will constitute a basis for finding
an award deficient." Because the award was devoid of any discussion or
analysis of a prohibited personnel practice (PPP) allegation, FLRA remanded
the matter to the parties for resubmission to the arbitrator who is to make
the necessary findings of fact and to apply the appropriate analytical
framework to the PPP allegation. FLRA also directed the arbitrator to
reexamine the union's Title VII racial discrimination claim.
The arbitrator denied a grievance alleging that the agency had
discriminated against the grievant on the basis of race and had committed
a PPP under 5 U.S.C. § 2302(b)(6) when it did not select him for any
of the vacancies advertised under two separate vacancy announcements.
The union filed exceptions, claiming, among other things, that the arbitrator
merely made a conclusory assertion without any discussion concerning how
the conclusion was reached when he concluded that § 2302(b)(6) was
not violated.
The Authority agreed, finding that "[t]he award under review is
completely devoid of any discussion or analysis of the issue of whether
the Agency committed a prohibited personnel practice by promoting [Ms. R]
to a position for which she was alleged to be not even minimally qualified . . . ."
Because FLRA could not pass on the award's legal sufficiency without such
an analysis, it remanded the matter to the parties consistent with its decision.
Before reaching the above conclusion, FLRA said that prior to its decision
in 50 FLRA No. 53 an arbitrator wasn't consistently required to "set forth
specific findings or to specify and discuss all allegations necessary for
the resolution of a grievance." Noting that its ability to review
an arbitrator's legal conclusions depended on the sufficiency of the record,
FLRA developed a standard under which an award that doesn't contain the
factual findings needed to evaluate the arbitrator's legal conclusions would
be set aside and remanded to the parties for resubmission to the arbitrator
for the needed findings.
FLRA continued as follows:
[W]e specifically affirm our intent, in this and future cases,
to remand those portions of an award that are challenged by the
exceptions and that fail to contain the factual findings necessary
to determine whether the arbitrator's legal conclusions are consistent
with the applicable standard of law. This is not to say, however,
that arbitrators are required to address every factual contention
raised by the parties. Rather, arbitrators are required to address
only those contentions that are necessary for the Authority to resolve
exceptions challenging the legal sufficiency of the award.
FLRA went on to note that arbitrators must apply those "standards
and burdens of proof that . . . could have been adjudicated in other fora"
and that "standards and burdens of proof set forth in law, rule, or
regulation extend to arbitrators."
When an award is resubmitted to the arbitrator, the arbitration proceeding
is prolonged and the arbitration fee is increased. To reduce the likelihood
of a remand for the reasons given in this case, the arbitrator should be
furnished with a copy of 53 FLRA No. 152, which may be downloaded from
FLRA's web page at http://www.access.gpo.gov/flra/.
Arbitrators should be cautioned that arbitration practices adequate in
the private sector (where the vast majority of disputes involve interpretation
and application of the collective bargaining agreement) may not necessarily
be adequate in the Federal sector (where many disputes involve interpretation
and application of various laws and regulations).
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53 FLRA No. 150
ATTORNEY FEES ... SUCCESS FEE ... CLEAR, REASONED EXPLANATIONS
Department of Agriculture, Animal
and Plant Health Inspection Service and National Association of Agriculture
Employees, 0-AR-2907, March 31, 1998, 53 FLRA No. 150.
When the union, on behalf of grievants, incurred an obligation to pay
attorney fees to a law firm, those fees were incurred by the grievants
within the meaning of section 7701(g)(1). Given that the law firm offered
two rates keyed to whether it failed or succeeded, FLRA held that since
the grievants prevailed, they incurred the "success fee." However, the
arbitrator's award of hearing expenses was deficient because it did not
provide a clear and reasoned explanation of why the expenses were recoverable.
FLRA also announced that, consistent with MSPB practice, it would no longer
vacate without further proceedings attorney fee awards that are deficient
because the arbitrator didn't adequately explain the application of pertinent
statutory requirements. Except where the record permits FLRA to modify
the award, it will remand the matter to the parties for further proceedings.
In his initial award the arbitrator found that the grievants were
entitled to retroactive temporary promotions with back pay. The union
then filed a motion for attorney fees in the amount of $88,550 based on
its fee agreement with a law firm. That fee agreement provided that
attorneys would represent the union and the grievants at a reduced rate
of $90/hour. However, should the union/grievants be "successful"
in the arbitration, they would be charged a "success fee," which
would be the law firm's established billing rate for clients that were
not on retainer.
The arbitrator found that the union had incurred the success fee in
accordance with the fee agreement. Moreover, the non-retainer billing
rates that applied under the fee agreement were reasonable and consistent
with prevailing market rates. He also rejected the agency's objections
to airfare and hearing expenses. However, the arbitrator did not specifically
address the hearing expenses that the agency disputed.
Exceptions followed, in which the agency contended that the rate awarded
by the arbitrator, along with the airfare and hearing expenses, were deficient.
It argued that the established billing rate in this case is $90/hour, the $795
air fare was an overcharge, and the hearing expense award wasn't documented
or explained by the union or specifically addressed by the arbitrator.
Regarding attorney fees under the Back Pay Act, 5 U.S.C. § 5596,
FLRA said that an award of fees for a backpay award for correction of an
unjustified or unwarranted personnel action must be "reasonable and related
to the personnel action; and . . . in accordance with the standards established
under 5 U.S.C. § 7701(g), which pertains to attorney fee awards by
the Merit Systems Protection Board (MSPB)." It added that when exceptions
concern attorney fee standards under § 7701(g)(1), it "looks to
the decisions of the MSPB and the U.S. Court of Appeals for the Federal
Circuit for guidance."
In noting that the agency didn't dispute that a fee was incurred by
the union, but had instead objected to whether the union actually paid
the success fee, FLRA said the following:
The matter of fee payments between client and attorney is not a
consideration in determining the propriety of attorney fee awards under
the Act. The Agency's focus on the amount of fees allegedly paid, rather
than owed, provides no basis for finding the arbitration award deficient.
In resolving disputes over attorney fees, both the Federal Circuit and
the MSPB refuse to consider the mechanics of fee payments between the
counsel and client. . . . Similarly, in reviewing the amount of fees
awarded, we will not address whether, or how much, employees or unions
have actually paid their attorneys.
Regarding the propriety of the rate, the Authority noted that in Francois
v. Office of Personnel Management, 64 MSPR 191 (1994), involving a fee
agreement limiting the employee's liability to $3,000 if the appeal were
unsuccessful, the MSPB rejected OPM's argument that any fee in excess of
the employee's liability is unreasonable, noting that although the fee
agreement limited the employee's liability if the appeal were unsuccessful,
it didn't limit the employee's liability in the event the employee prevailed.
FLRA found that the fee agreement in the case at bar was even more explicit
than that in Francois because it expressly obligated the union to pay a
success fee if the arbitration had a favorable result. Given that the
agency didn't dispute the arbitrator's conclusion that the firm's non-retainer
billing rates were reasonable and consistent with prevailing market rates,
FLRA found no basis for finding deficient the arbitrator's use of the firm's
non-retainer billing rates in calculating the fee award.
FLRA also rejected the agency's challenge to the airfare expenses awarded
by the arbitrator. Recoverable expenses include travel expenses and the
arbitrator explained the grant of such expenses in a fully articulated,
reasoned decision.
But the Authority, in agreement with the agency, found deficient that
portion of the award granting hearing expenses because the arbitrator didn't
explain why the expenses were recoverable and the record didn't contain
documentation that would have allowed FLRA to determine if the amount was
reasonable.
FLRA then announced that in future cases it would no longer vacate
attorney fee awards "that are deficient because the arbitrator has not
sufficiently explained the determination of a pertinent statutory requirement."
FLRA will instead "remand the award for further proceedings to assure
that the resolution of a request for attorney fees is consistent with law."
If, on the other hand, the record is sufficient to resolve the disputed matter,
FLRA will modify the award or deny the exception.
The Authority accordingly remanded the award to the parties for resubmission,
absent settlement, to the arbitrator for a "fully articulated, reasoned
decision" on whether the hearing expenses are recoverable and, if so,
whether the amount is reasonable.
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53 FLRA No. 148
ATTORNEY FEES ... ATTORNEY-CLIENT RELATIONSHIP ... PARALEGAL FIELD ... REPRESENTATIVE UNDER SUPERVISION OF NATIONAL COUNSEL
Federal Deposit Insurance Corporation and National Treasury Employees Union, 0-AR-2883, March 31, 1998, 53 FLRA No. 148.
FLRA held that since the arbitrator found that union's national counsel,
an attorney, was responsible for directing and overseeing all aspects of
the case through a paralegal field representative, an award of fees for
the paralegal services is consistent with MSPB case precedent.
In the initial award, the arbitrator reversed the grievant's suspension
and awarded back pay. The union then filed a motion for attorney fees
that included approximately 200 hours of work by NTEU's field representative
(a professionally trained paralegal), 10 hours of work by the union's national
counsel (an attorney), and $72.00 in travel expenses for the field representative.
The arbitrator awarded the union attorney fees and expenses in the amount
requested.
The agency filed exceptions, claiming that the fees were not incurred.
It argued, among other things, that since the grievant never directly consulted
with the national attorney, there was no attorney-client relationship between
the two. It also contended that the paralegal wasn't entitled to attorney
fees and expenses because he wasn't an attorney.
FLRA disagreed, finding that the fees had been incurred within the meaning
of section 7701(g)(1). It pointed to 5 CFR § 550.807(f), which states
that "attorney fees shall be allowed only for the services of members of
the Bar and for the services of law clerks, paralegals, or law students
when assisting members of the Bar." Moreover, in Anderson v. Government
Printing Office, 55 MSPR 548 (1992) and Mitchell v. U.S. Postal Service,
6 MSPR 22 (1981), MSPB awarded attorney fees under § 7701(g) for the
services of a legal assistant and law students, respectively, finding that
fees for the services of non-attorneys was appropriate because an attorney-client
relationship existed and the involvement of the non-attorneys was under
the direct supervision of, and as agent for, the retained attorney. It
noted that the arbitrator in the case at bar found that the national counsel
was responsible for directing and overseeing all aspects of the case and
that the field representative performed services as a paralegal under the
supervision of, and acting as the agent for, the national counsel. These
findings, said FLRA, were consistent with MSPB case precedent and 5 CFR
§ 550.807(f.)
FLRA rejected the agency's claim that because there was no evidence that
the grievant ever consulted with the national union, there necessarily was
no attorney-client relationship. It noted that the arbitrator found that,
in the circumstances of this case, the grievant's awareness of the attorney's
role was not critical. Moreover, by not excepting to the 10 hours of work
performed by the national counsel, the agency in effect conceded that an
attorney-client relationship existed between the national counsel and the
grievant. Finally, FLRA said that the agency's reliance on an arbitration
award (in which the arbitrator ruled that for fees to be awarded for paralegal
services the services must be ancillary to the principal legal services
performed by an attorney) is misplaced because "arbitration awards are
not precedential."
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53 FLRA No. 134
FAIR LABOR STANDARDS ACT (FLSA) REMEDIES, INCLUDING LIQUIDATED DAMAGES
AND STATUTE OF LIMITATIONS, APPLY TO FLSA VIOLATIONS
Federal Deposit Insurance Corporation
(FDIC) and National Treasury Employees Union (NTEU), 0-AR-2826,
Feb. 17, 1988, 53 FLRA No. 134
FLSA coverage. FLRA affirmed the arbitrator's holding that
GG-11 and above Examiners and Liquidators were "properly classified
as professional employees and exempt from the overtime provisions of
the FLSA."
FLSA remedies: liquidated damages. After noting it would no
longer follow its precedent under which the Back Pay Act was used to
remedy FLSA violations, the Authority modified that part of the award
denying liquidated damages to those employees that the agency had conceded
were wrongfully exempted from FLSA coverage.
FLSA statute of limitations.
Regarding the backpay recovery period for the aforementioned employees,
the Authority held that FLSA's two-tiered statue of limitations, not the
Back Pay Act, applied to FLSA cases. Because FLRA was unable to determine
from the record whether the 3-year (for willful violations) or 2-year
recovery period applied in this case, it remanded this particular matter
to the parties for resolution.
This case involved a grievance alleging that the agency
violated the FLSA when it designated certain bank liquidators and bank
examiners as exempt from the time-and-a-half overtime pay provisions of
the FLSA. While the grievance was pending, the agency conceded that
examiners below the GG-11 level and all liquidators had been erroneously
classified as exempt from FLSA's overtime requirements. Consequently,
when the grievance was referred to arbitration, the parties stipulated
the issues to be: (1) whether examiners at or above the GG-11 level were
improperly exempted from FLRA's provisions; (2) what is the appropriate
statute of limitations for those employees that the agency admitted had
been improperly exempted; and (3) what relief, including liquidated damages,
would be appropriate.
The arbitrator found that the examiners at or above the GG-11 level
were properly exempted from the FLSA. Although he held that the employees
the agency admitted had been misclassified as exempt were not entitled to
liquidated damages under 29 U.S. § 216(b), he ordered backpay for
those employees retroactive only to February 1992. The union filed exceptions
challenging all these determinations.
On review, the Authority found that that portion of the award exempting
GG-11 examiners from the FLSA isn't contrary to 5 CFR § 551.206(a)(1).
[W]e find that GG-11 examiners perform their work on the basis of extensive
training and 3 years of experience as an examiner trainee. This training
and experience provides GG-11 examiners with "both theoretical and
practical knowledge of their specialty, including . . . knowledge of related
disciplines and of new developments in the field[.]" . . . Thus, we
find that GG-11 examiners satisfy the criteria set forth in section 551.206(a)(1).
As it is undisputed that GG-11 examiners satisfy the criteria in sections 551.206(b)
and (c), we conclude that they are properly classified as professional
employees and exempt from the overtime provisions of the FLSA.
Thus the union exception to this portion of the award was dismissed.
Regarding the applicability of the Back Pay Act to FLSA violations, the
Authority announced it would no longer follow its precedent, under which
it had held that remedies for violations of the FLSA are appropriately
resolved under the Back Pay Act. It said that a violation of the FLSA
is to be remedied under the FLSA, not the Back Pay Act. Noting that courts
have awarded backpay under the FLSA without regard to the Back Pay Act,
the Authority held "that 29 U.S.C. § 255(a) applies to grievances
claiming violations of the FLSA, and thus, arbitrators are bound to apply
that section."
Turning to the issue of liquidated damages, the Authority said that
"[a]rbitration awards granting liquidated damages are lawful because
the FLSA independently provides entitlement to money damages against a
Government employer." After noting, among other things, that under
FLSA there is a presumption that an employee improperly denied overtime
shall be awarded liquidated damages, and that an employer who violates
FLSA bears a substantial burden of proving that it acted in good faith
(a basis for not granting liquidated damages), the Authority concluded
that the arbitrator's factual findings did not support his legal conclusion
that the agency met its substantial burden that liquidated damages were
unwarranted. It accordingly modified the award to include the payment
of liquidated damages under 29 U.S.C. § 260.
Unlike the Back Pay Act, which doesn't limit the period of recovery
for an award of backpay, the Fair Labor Standards Act expressly limits
the period of recovery. In this regard an action under the FLSA
"may be commenced within two years after the cause of action accrued,
. . . except that a cause of action arising out of a willful violation may
be commenced within three years after the cause of action accrued[.]"
Because the arbitrator did not determine whether the FLSA violation was
willful, the Authority was unable to determine whether the 2-year or 3-year
statute of limitations applied. It accordingly remanded this portion of
the award to the parties for further action consistent with the Authority's
decision.
As this case marks yet another departure from FLRA precedent, it should
be kept in mind when arbitrating a dispute involving alleged violations
of the Fair Labor Standards Act.
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53 FLRA No. 131
LIGHT DUTY ... INSUFFICIENTLY "TAILORED" ARRANGEMENTS
National Association of Government Employees
(NAGE), Local R14-23 and Defense Commissary Agency, Kelly Air Force Base, Texas,
0-NG-2369, Feb. 27, 1998, 53 FLRA No. 131.
A proposal giving temporarily disabled employees the right to decline
light duty work on any shift other than their regular shift is insufficiently
tailored to qualify as a § 7106(b)(3) exception to management's right
to assign work.
Under the disputed sentence of the union's proposal, a temporarily
disabled employee could not be required to accept an assignment of light
duty work if such work were not available during the employee's regular
tour of duty. The union argued that the sentence was an "appropriate
arrangement" within the meaning of § 7106(b)(3). Employees, it
said, are hired for specific tours; and family commitments, transportation
problems, or other valid reasons could prevent an employee from working a
different tour.
FLRA first found that, as plainly worded, the disputed sentence affects
management's right to assign work, which includes the right to determine
when work assignments will occur and when work that has been assigned is
to be performed. 3 FLRA 769, 775 (1980), affirmed 691 F.2d 553 (D.C. Cir. 1982).
Second, the Authority rejected the union's claim that the sentence is
a negotiable "appropriate arrangement" within the meaning of
5 U.S.C. § 7106(b)(3). The sentence, which applied to all temporarily
disabled employees, including those not adversely affected by a shift
change, wasn't sufficiently "tailored" to qualify as an arrangement.
It is not asserted or apparent that these employees are affected in
different ways from any employee who is assigned to a new tour of duty.
Moreover, the disputed sentence would allow any temporarily disabled employee
assigned light duty on a tour other than the employee's regular tour to
decline the assignment, even if the employee does not suffer the scheduling
problems the disputed sentence is intended to address. Thus, even assuming
the effects identified by the Union constitute adverse effects within the
meaning of section 7106(b)(3) . . . , the disputed sentence is not sufficiently
tailored to compensate those employees suffering the effects asserted by
the Union as attributable to the exercise of management's rights.
Accordingly, the disputed sentence was found not to be within the duty
to bargain.
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53 FLRA No. 129
DEFICIENT AWARD ... REMEDY NOT A "BUT FOR" RECONSTRUCTION
OF THE EMPLOYER'S ACTION
Applying the 2-prong test it announced in 53 FLRA No. 21 (reported
in Significant Cases No. 119, p. 6) to determine whether arbitral remedies
interfere with management's § 7106 rights, the Authority found that
a restitutional overtime remedy that had been directed by the arbitrator
is deficient because not based on a reconstruction of what the agency would
have done had it not violated the collective bargaining agreement's
"just cause" general standard.
After reducing the grievant's suspension from 14 to 2 days,
the arbitrator, instead of simply ordering that the grievant be made whole,
directed the agency to assign the grievant sufficient overtime work to
earn an amount equivalent to the gross compensation lost during the 12
days that the grievant was improperly suspended. In its exceptions the
agency argued, among other things, that the award of "restitutional
overtime" violated management's rights to assign work and assign
employees.
The Authority, relying on the revised 2-prong test it announced in
53 FLRA No. 21 concerning remedies that can be awarded by an arbitrator,
disagreed in part. Under the first prong of that test the Authority examines
"whether the award provides a remedy for a violation of either applicable
law [which includes regulations having the force and effect of law--see 42
FLRA No. 21] within the meaning of section 7106(a)(2) . . . or a contract
provision that was negotiated pursuant to section 7106(b) of the
Statute"--e.g., a contract provision dealing with § 7106(b)(1)
methods, means, etc., or a contract provision that is a non-abrogating
"arrangement" under § 7106(b)(3).
Here, the arbitrator satisfied the first prong of the test when he found
that the agency violated the "just cause" provision of the contract.
FLRA noted, in this connection, that it previously has held that contractual
provisions establishing general standards, such as "just and sufficient
cause" or "to promote the efficiency of the service," that
are to be applied in the exercise of management's right to discipline have
been found to be arrangements that do not abrogate the right to discipline.
Such provisions, said FLRA, "are viewed as having been negotiated under
section 7106(b)(3) of the Statute."
Under the 2nd prong, FLRA considers whether the arbitrator's remedy reflects
a reconstruction of what management would have done if it had not violated
applicable law or a contract provision dealing with a 7106(b) matter.
Finding that the award failed this part of the test, FLRA said the following:
Had the Agency not improperly suspended the grievant for 14, rather
than 2, days, he would have been paid for those 12 days. The Arbitrator
did not explain the basis for awarding restitutional overtime to make up
this difference. Moreover, there is no . . . basis on which to conclude
that the Agency would have . . . placed the grievant on unpaid leave for
12 days and assigned him overtime work for an equivalent amount of time.
Thus, the award fails to reconstruct what the Agency would have done had
it initially acted properly. . . .
Awarding the grievant backpay for 12 days would more directly make him
whole for the days he was improperly suspended. However, we are unable
to determine whether the Arbitrator's remedy of restitutional overtime
reflects his decision that a backpay remedy was inappropriate. We note,
in this regard, that nothing in the Back Pay Act precludes an arbitrator
from denying backpay as part of a decision to mitigate an agency-imposed
penalty.
FLRA accordingly set aside the award and remanded it to the parties for
resubmission, if necessary, to the arbitrator who would have to determine
"whether an award of backpay--or some other remedy--is warranted."
FLRA cited 32 FLRA No. 112 in support of its assertion that the Back
Pay Act doesn't preclude an arbitrator from denying backpay as part of his
or her decision to mitigate an agency-imposed penalty. That case, in turn,
cited American Federation of Government Employees, Local 2718 v. Department
of Justice, Immigration and Naturalization Service, 768 F.2d 348, 351 (Fed.
Cir. 1985). In that case, where the arbitrator mitigated a removal to a
15-day suspension but denied back pay, the court said the following:
Implicit in [the appellant's] argument is that the arbitrator could not
deny back pay for a period greater than that encompassed by the suspension.
To adopt such a proposition would impair the arbitrator's broad discretion
in fashioning a just award which takes account of the parties' mutual
interests and conduct. In reviewing the Back Pay Act, and the legislative
history cited by [the appellant], we are unable to find any provision which
precludes an arbitrator from denying back pay as part of a mitigated penalty,
or which limits a denial of back pay to a period of suspension.
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EXCESSIVE ABSENCE ... FAMILY AND MEDICAL LEAVE ACT OF 1993 (FMLA)
Carl M. Cole, Administrator of the
Estate of Jane M. Pickering v. Department of Veterans Affairs,
NY0752960150 I-1, January 26, 1998.
A charge of excessive absence will be upheld when an employee is in
an unpaid leave status and there is no end in sight to the employee's absence.
Also, use of leave under the Family and Medical Leave Act of 1993 (FMLA)
does not preclude the agency from charging excessive absence, when the
absence in question exceeds the 12-week period of absence covered by FMLA.
The appellant, a GS-7 Medical Technician, was continuously in an unpaid
leave status for over 19 months, before she was removed for excessive absence
and absence without leave (AWOL). The agency also alleged that the appellant
failed to follow agency procedures, regulations, and policies regarding attendance.
The appellant, who suffered from rheumatoid arthritis, claimed that she was
removed based on disability discrimination.
In its review, the Board began by stating that the only charge it needed
to review was that the employee had been in a continuous non-pay status for
more than 19 months, since this charge alone was sufficient to justify removal.
The Board then examined the employee's claim of disability discrimination.
It concluded that the employee failed to establish that she was a qualified
disabled person because she failed to articulate an accommodation that would
enable her to work. In this case, the agency had offered the appellant various
accommodations, which she refused. The employee was unable to show that her
final requested accommodation of assignment to the day shift was related to
her disability or would enable her to perform her duties.
The appellant also argued that she was entitled to leave under the Family
and Medical Leave Act of 1993 (FMLA). In its analysis the Board noted that,
assuming that the appellant satisfied all of the criteria for entitlement to
FMLA, the maximum amount of FMLA leave she could have taken was 12 workweeks,
which would have covered only part of the absence.
The Board reaffirmed its holding in Holderness v. DCA, 75 MSPR 401 (1997),
where it held that an agency may take an adverse action based on excessive use
of leave without pay (LWOP) where: (1) the record shows that the employee
was absent for compelling reasons beyond her control so that the agency's
approval or disapproval of leave was immaterial because the employee could
not be on the job; (2) the absences continued beyond a reasonable time, and
the employee was warned that adverse action might be initiated unless the
employee became available for duty; and (3) the agency shows that the position
must be filled. The Board upheld the charge of excessive absence and found
that removal was reasonable, given that there was no foreseeable end in sight
to the appellant's condition.
This case provides a good discussion of the limits of "reasonable
accommodation." Here the employee rejected the various offers of
accommodation provided by the agency and was never able to justify how
her requested accommodation would enable her to work. The decision also
affirms that removal for excessive absence is appropriate when the criteria
discussed above are met and there is no foreseeable end in sight to the
employee's absence. Where an employee has exhausted all annual and sick
leave, as well as any entitlement to unpaid leave under FMLA, and there
is no foreseeable date the employee will be able to return, removal based
on a charge of excessive absence should be actively considered.
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CHARGES ... ABSENCE WITHOUT LEAVE (AWOL)
Robb v. Department of Defense, SF0752970055-I-1, January 6, 1998.
A charge of AWOL "for 10 workdays or more" can still be sustained
even when part of the AWOL charge is not upheld, resulting in a period
of AWOL of less than 10 workdays.
The agency removed the appellant based on a charge of absence without
leave (AWOL) "for ten (10) workdays or more." On appeal, the
administrative judge did not sustain the charge, based on medical evidence
presented by the appellant. The administrative judge found that the appellant
should have been granted leave without pay (LWOP) for some of the days he
was absent and that the most the agency could prove was that the appellant
was AWOL for less than 10 days. He thus concluded that the agency failed
to sustain its charge.
In its petition for review, the agency argued that the administrative
judge should have sustained the charge and either upheld or mitigated the
penalty. In its review, the Board held that the charge of AWOL should have
been sustained even though the appellant submitted medical evidence on
appeal regarding some of his absences. Citing James v. Department of
the Air Force, 73 MSPR 300 (1997), where the Board held that a charge
must be viewed in light of the accompanying specifications and circumstances,
and should not be technically construed, the Board agreed with the agency.
The Board found that the notice of proposed removal was clear about the
charge of AWOL and that there was a distinction between the actual charge
of AWOL and the factual narrative outline of the charge. Citing Burroughs
v. Army, 918 F.2d 170 (Fed. Cir. 1990), which held that an agency must
prove all of the elements of a charge in order for that charge to be sustained,
the Board noted that the phrase "for ten (10) days or more" is
descriptive in nature and that it does not create an additional element
that must be demonstrated in order to prove the charge of AWOL. The Board
also noted that the agency's table of penalties determination is based on
the length of AWOL and, therefore, the use of time descriptions of AWOL
relate to the penalty only.
Finally, in reviewing the penalty determination of the agency, the
Board looked at the appellant's length of service, performance rating,
and unblemished disciplinary record, and mitigated the penalty of removal
to a 60-day suspension.
This is a nice decision from the Board which properly relies on the
substance of the charges rather than the description. Also welcome is
the Board's reliance on selected prior case law to draw the distinction
between elements and specifications and its statement that charges should
not be "technically construed." Hopefully, we will see this
same type of analysis in future Board decisions.
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JURISDICTION ... MISUSE OF A GOVERNMENT-OWNED VEHICLE
Westbrook v. Air Force, AT3443960818-I-1, December 8, 1997.
Where an arbitrator award upheld a 7-day suspension and the agency
sought to impose an additional 23-day suspension based on the arbitrator's
finding that a 30-day suspension was the minimum statutory penalty, the
Board had jurisdiction to review the 23-day suspension notwithstanding
the arbitration award.
The appellant was suspended for 7 days based on failure to follow
security procedures and unauthorized use of a Government-owned vehicle
(GOV). The agency alleged that the appellant drove his GOV to a fast
food restaurant and purchased food at the drive-through window while
escorting the base manager, who was carrying more than $11,000. The
employee sought review of his suspension under the negotiated grievance
procedure and the case went to arbitration. At the arbitration hearing,
the agency urged the arbitrator to impose the minimum statutory penalty
of a 30-day suspension for willful misuse of a GOV. The arbitrator sustained
the charges and the 7-day suspension, while agreeing with the agency that
the appropriate penalty was a 30-day suspension, as mandated by 31 U.S.C.,
§§ 1344 and 1349. Citing the same charges, the agency then
issued a decision letter to the appellant suspending him for an additional
23 days. The employee then filed an appeal with the Merit Systems Protection
Board.
At issue in this case was whether or not the Board had jurisdiction over
the appeal. The agency argued that the Board lacked jurisdiction over
the appeal because the appellant did not raise a discrimination claim,
the 23-day suspension was a continuation of the initial 7-day suspension
(which the appellant elected to grieve through arbitration), and the agency
was merely complying with the arbitrator's decision. In its analysis, the
Board held that (1) it had jurisdiction over the 23-day suspension action
under 5 U.S.C. § 7121(e); (2) the arbitrator's decision did not defeat
Board jurisdiction; and (3) the 23-day suspension must be reversed because
it punished the appellant twice for the same misconduct.
The Board agreed with the agency that it lacked jurisdiction under 5 U.S.C.
§ 7121(d) because there was no claim of discrimination within the meaning
of § 2302(b)(1). However, the Board determined that under § 7121(e),
the suspension was within its jurisdiction. (Under § 7121(e), if a matter
is covered by both a negotiated grievance procedure and a statutory procedure
dealing with actions under 5 U.S.C. §§ 4303 and 7512 (such as a
23-day suspension), the employee may challenge the action by electing
between the grievance procedure or an appeal to the Board, but not both.
Here, the employee elected the statutory procedure.)
The Board did not agree with the agency's argument that since the appellant
grieved the 7-day suspension, he in effect negated his right to appeal the
subsequent 23-day suspension to the Board. It also noted that the 7-day
suspension was not an appealable action and that the grievance procedure
was the only route the appellant could have taken to challenge that action.
Thus, the grievance of the 7-day suspension did not divest the Board of
jurisdiction over the 23-day suspension.
In regard to the agency's argument that the 23-day suspension was required
as a result of the arbitrator's decision, the Board found that the arbitrator
did not order the 23-day suspension. Even if it was ordered, the Board
reasoned, the agency was the responsible party for taking the action.
Finally, the Board cited Adamek v. USPS, 13 M.S.P.R. 224 (1982), and
Cornelius v. Nutt, 472 U.S. 648 (1985), which address the principle of
law that an agency may not discipline an employee twice for the same misconduct,
and determined that when the agency effected the 23-day suspension, it
relied on the same two charges (failure to follow security procedures
and unauthorized use of a Government-owned vehicle) and underlying facts
that were the basis for the 7-day suspension. The Board accordingly reversed
the 23-day suspension.
This case provides a good review of the interplay between the various
appeal and grievance rights available to employees. The highly unusual
effort of the agency to have it appear that the arbitrator imposed a higher
penalty than that being grieved is hard to understand. It is impossible
to imagine the Board (or arbitrator) agreeing to increase a penalty beyond
that in the decision letter. The fact that there is a statutory minimum
for this particular penalty may have led the agency to believe that its
error of not originally imposing a 30-day suspension could be remedied
by the arbitrator. It is also important to note that the agency never
formally charged the employee with "willful" use of the GOV, the language
used in the statute providing for the minimum penalty of a 30-day suspension.
Top
Jeffrey A. Smith v. Department of
the Interior, PH0351960126-X-1, August 25, 1997.
A right to priority consideration entitles an employee to bona fide
consideration before any other candidate is referred. This right in no
way requires that the employee be actually selected nor does it entitle
the employee to review the merits of the agency's reasons for non-selection.
As part of a settlement agreement, the agency agreed to give the appellant
priority consideration for specific vacant positions for which he was qualified.
In a petition for enforcement, the appellant alleged that the agency violated
this agreement by failing to give him priority consideration for a position
for which he was fully qualified. The agency acknowledged its error by
canceling its initial selection and reconsidering the appellant's candidacy.
The agency's reconsideration of the appellant did not result in him getting
the position in question and the appellant was later selected for another position.
The agency, therefore, believed that the appellant's petition for enforcement
was moot. The administrative judge rejected the agency's argument that the
petition was moot by finding that the settlement agreement obligated the
agency to give priority consideration for all the positions covered by
the agreement.
According to Merit Systems Protection Board (Board) case law, a right
to priority consideration entitles an employee to bona fide consideration
before any other candidate is referred. This right in no way requires
that the appellant actually be selected nor does it entitle the appellant
to review the merits of the agency's reasons for non-selection. In this
case, the appellant argued, among other things, that the agency's reason
for not selecting him lacked validity. Applying Board precedent, the Board
rejected the appellant's lack of validity argument and focused on the real
issue--whether or not the agency acted in good faith in considering the
appellant's qualification for the position. On review, the Board found
that the agency had acted in good faith in considering the totality of
the circumstances surrounding the appellant's qualifications. The Board
further noted that while the agency's subsequent placement of the appellant
in another position did not render the appellant's petition as moot, it
nonetheless reflected that the agency did not act in bad faith. The Board
concluded that the agency was in compliance with the settlement agreement
and dismissed the petition for enforcement.
This case provides a good discussion of priority consideration. An
agency should be aware of not only its obligations under priority consideration,
but also its rights. The concepts discussed in this case can also be applied
to other common work situations such as reduction-in-force and workers'
compensation.
Top
Agencies having general questions concerning this publication,
including suggestions for improvement, are encouraged to call
Hal Fibish on (202) 606-2930.
Other questions or comments may be mailed to the
U.S. Office of Personnel Management,
Room 7H28, Theodore Roosevelt Building,
1900 E Street, NW.,
Washington, DC 20415-2000.
You may call us at (202) 606-2930; fax (202) 606-2613;
or email lmr@opm.gov.
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