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 Number 130 July 1999 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. COURT DECISIONS COURT REFUSES TO CONSIDER NEW ARGUMENTS ON OFFICIAL TIME FOR LOBBYING. The D.C. Circuit turned down the union's petition for review of 54 FLRA No. 70, in which the Authority held that the agency did not commit an unfair labor practice (ULP) when it refused to grant official time for lobbying purposes. The court, noting that U.S.C. § 7123(c) bars the court from considering objections that have not been urged before FLRA unless the failure to urge the objection(s) is excused because of extraordinary circumstances. "The particular 'failure or neglect' encountered here cannot be excused. There are no extraordinary circumstances. And so the petition for judicial review must be denied." Georgia State Chapter Association of Civilian Technicians v. Federal Labor Relations Authority, No. 98-1452 (D.C. Cir, August 3, 1999). INSPECTOR GENERAL AGENTS ARE REPRESENTATIVES OF THE AGENCY FOR THE WEINGARTEN PURPOSES OF 5 U.S.C. § 7114(a)(2)(B). In a 5-4 decision the Supreme Court, relying on (1) the plain text of the FSLMRS, (2) court deference to FLRA's reasonable interpretations of the FSLMRS, and (3) Congress' countervailing labor-management policy concerns (as opposed to the policy concerns of the Inspector General Act), holds that Inspector General agents are representatives of the agency for the purposes of § 7114(a)(2)(B). The court emphasized that it was not passing on various FLRA rulings on the scope of section 7114(a)(2)(B). "The process by which the scope of § 7114(a)(2)(B) may properly be determined . . . [is a question] not now before us." National Aeronautics and Space Administration et al. v. Federal Labor Relations Authority, et al., Supreme Court, No. 98-369, June 17, 1999. EXECUTIVE ORDER 12871 ISN'T AN "ELECTION" TO BARGAIN ON (b)(1) TOPICS. The D.C. Circuit upheld the Authority's decision in 54 FLRA No. 43, where the Authority held that section 2(d) of Executive Order 12871 does not constitute an election to bargain over section 7106(b)(1) subjects. Although the court didn't defer to FLRA's interpretation of Executive Order 12871 because the Order was outside FLRA's domain, its de novo review of the Order resulted in the same conclusion asFLRA's. National Association of Government Employees, National Association of Government Employees, Local R1-8, and Patent Office Professional Association v. Federal Labor Relations Authority, Nos. 98-1313, 98-1317 and 98-1377 (DC Cir, June 25, 1999). SETTLEMENT AGREEMENTS. When an agency agrees to provide the appellant with a "clean record" as part of a settlement agreement, it places itself in an awkward position when responding to inquiries from potential employers about the appellant. In this case, the agency was found to be in breach of the settlement agreement, because it provided a response of "no comment" to a questionnaire from a potential employer about the appellant's work history. Pagan v. Department of Veterans Affairs, No. 97-3395 (Fed. Cir., March 16, 1999). JURISDICTION ... USERRA. Membership in the U.S. Army Reserves is not a benefit of employment. A clear nexus between an allegedly denied benefit and one's employment is an essential component of a USERRA claim that involves a denial of a benefit of employment. Jeffery N. Thomsen v. Department of Treasury, No. 98-3255 (Fed. Cir. March 5, 1999). JURISDICTION. The Merit Systems Protection Board has jurisdiction over claims of back pay if it has (or had) jurisdiction over the underlying claim. James L. Worthington v. United States, No. 98-5160 (Fed. Cir. February 8, 1999). FLRA DECISIONS DETERMINING QUALIFICATIONS ... § 7106(b)(1) "TYPES" OR "METHODS AND MEANS". Two proposals, both dealing with how to evaluate the qualifications of Production Inspectors to certify aircraft repairs, do not deal with methods, means, or staffing pattern types within the meaning of § 7106(b)(1). Association of Civilian Technicians, Evergreen Chapter and National Guard Bureau, Military Department, State of Washington, 0-NG-2385, June 30, 1999, 55 FLRA No. 101. LOCAL PRACTICE INCONSISTENT WITH NATIONAL CONTRACT PROVISIONS . The employer did not commit a ULP when it terminated a local practice that was inconsistent with the national agreement. (Under the practice at issue, a local supervisor allowed the union president to deviate from the national agreement's requirement that all bargaining unit employees sign in and out of work sequentially, every day, on the same sign-in/sign out register.) Department of Housing and Urban Development, Rocky Mountain Area, Denver, Colorado and American Federation of Government Employees, Local 3972, DE-CA-50202, 55 FLRA No. 99. AMBIGUOUS SELECTION PROCEDURE. In a case turning on the meaning of ambiguous contract provisions that had been disapproved by the agency head, Chairperson Segal, distinguishing between how one should interpret proposals and how one should interpret disapproved provisions, dissents with the majority's adoption of the interpretation advanced by the union and urges that fact finding be used to collect evidence concerning the negotiation of the disputed selection procedure. Association of Civilian Technicians, Volunteer Chapter 103 and U.S. Department of Defense, Tennessee National Guard, Nashville, Tennessee, 0-NG-2404, June 30, 1999, 55 FLRA No. 98. "COVERED BY" AND "ALLOWED BY" DEFENSES TO DUTY-TO-BARGAIN COMPLAINTS ARE NOT MUTUALLY EXCLUSIVE. FLRA found, under both the "covered by"and "allowed by" defenses, that an SSA facility located in a multi-tenant building committed a ULP when it unilaterally supported the banning of smoking in the GSA-operated cafeteria and refused to complete bargaining on the matter. Since GSA, not SSA, implemented the ban based on the unanimous support for such a ban by the tenant agencies, FLRA directs SSA to "support" a rescission of the ban and to reduce the impact of that ban on unit employees. Social Security Administration [SSA], Region VI, and American Federation of Government Employees [AFGE], Local 1336, DE-CA-70818, June 30, 1999, 55 FLRA No. 95. MSPB DECISIONS COMPENSATORY DAMAGES ... MOOT ACTION. An appellant's entitlement to back pay and benefits is not limited by the award of disability retirement if the agency is canceling the appealed removal in response to a Board order rather than in response to the award of disability retirement. Rodney Spencer v. Department of Navy, DC-0752-96-0116-C-1 & DC-0752-96-0116-P-1, May 5, 1999. MSPB PROCEDURES. An appellant before the Merit Systems Protection Board is not restricted by the Board's discovery procedures, but may use any lawful means to gain information relevant to the case.William L. Christofili v. Department of the Army, PH-0752-97-0216-I-3, March 29, 1999. JURISDICTION ... CONSTRUCTIVE DEMOTION. The Merit Systems Protection Board will treat reassignments as constructive demotions only where either the agency or the Office of Personnel Management has taken a classification action to correct a classification error or apply a new classification standard subsequent to the appellant's reassignment. Edward E. Hogan v. Department of the Navy, AT-0752-98-0226-I-1, March 12, 1999. RETROACTIVE PROMOTION ... BACK PAY. After reviewing the statutory authorities under the Whistleblower Protection Act and the Back Pay Act and related amendments, the Board held that it had the authority to order a promotion to GS-14, retroactively. Further, the Board held that it had authority to award back pay for the period between the earliest time of the appellant's nonselection for promotion and the Board-ordered prospective promotion. Morgan v. Energy, DE1221950221-R-1, February 10, 1999. RESTORATION RIGHTS. An individual who has been placed on an agency's Reemployment Priority List (RPL) following recovery from a compensable injury is not entitled to the special placement benefits afforded current agency employees under an agency Career Transition Assistance Plan. Peter Kachanis, Jr. v. Department of Treasury, BN-330-97-0210- I-1, January 22, 1999. MOOTNESS ... JUDICIAL ESTOPPEL ... DISABILITY RETIREMENT ... DISCRIMINATION. The doctrine of judicial estoppel precludes a party from adopting contradictory positions in the same or related litigation. An employee's receipt of disability retirement benefits does not judicially estop the employee from pursuing a claim of disability discrimination. However, an employee's statements made in support of an application for disability retirement may be considered in adjudicating any subsequent claim of disability discrimination.Michael W. Tompkins v. Navy, DC-0752-95-0413-I-1, January 14, 1999, and Ruth S. Lamberson v. Veterans Affairs, DE-0752-97-0456-I-1, January 20, 1999. REDUCTION IN FORCE. Despite a finding of error in the application of the reduction in force regulations, the Board will not reverse an agency's action unless there is evidence that the error adversely impacted an appellant's substantive entitlements under the regulations.Joseph F. Pezdek v. Department of Defense, NY-0351-95-0569-I-2, January 14, 1999. COURT REFUSES TO CONSIDER NEW ARGUMENTS ON OFFICIAL TIME FOR LOBBYING Georgia State Chapter Association of Civilian Technicians v. Federal Labor Relations Authority,No. 98-1452 (D.C. Cir, August 3, 1999). Holding The D.C. Circuit turned down the union's petition for review of 54 FLRA No. 70, in which the Authority held that the agency did not commit an unfair labor practice (ULP) when it refused to grant official time for lobbying purposes. The court, noting that 5 U.S.C. § 7123(c) bars the court from considering objections that have not been urged before FLRA unless the failure to urge the objection(s) is excused because of extraordinary circumstances, held that "[t]he particular 'failure or neglect' encountered here cannot be excused. There are no extraordinary circumstances. And so the petition for judicial review must be denied." Summary In 54 FLRA No. 70, the General Counsel accused the agency of "repudiating"a contract provision providing official time for lobbying purposes when it refused a union request for official time for eleven union representatives to meet with Members of Congress to discuss "matters of interest to the Union and the employees it represents." Although, under then-existing case law, official time for lobbying purposes was a negotiable condition of employment, the Authority found persuasive the agency's argument that the contract provision was unenforceable because inconsistent with section 8015 of the 1996 DOD Appropriations Act, which banned the use of official time for lobbying purposes. The ULP was dismissed because the provision was unenforceable and consequently couldn't be "repudiated." The union appealed, arguing that: (1) the Appropriations Act could not repeal the provisions of the FSLMRS by implication, (2) the Authority "overlooked its obligation to reconcile the statutes," (3) FLRA's interpretation raises a First Amendment question, and (4) the FSLMRS is more specific than the Appropriations Act. The court noted that "none of these objections, none of these arguments, was ever urged until the case arrived in this court." Although the Appropriations Act argument had been unanticipated by the union, the court noted that it didn't seek to file a reply brief under 5 CFR 2429.26(a) or ask the Authority to reconsider its decision. It is true that we have considered and ruled on objections first raised on judicial review when the FLRA rested its decision on a ground neither party had argued, so long as a request for reconsideration appeared clearly doomed. . . . The situation here is not comparable. In the first place, the FLRA did not sua sponte raise the Appropriations Act; the Defense Department argued the point to the agency. Second, it is not so plain that a request for reconsideration would have been futile. It accordingly dismissed the union petition for review. INSPECTOR GENERAL AGENTS ARE REPRESENTATIVES OF THE AGENCY FOR THE WEINGARTEN PURPOSES OF 5 U.S.C. § 7114(a)(2)(B) National Aeronautics and Space Administration et al. v. Federal Labor Relations Authority, et al., Supreme Court, No. 98-369, June 17, 1999. Holding In a 5-4 decision the Supreme Court, relying on (1) the plain text of the FSLMRS, (2) court deference to FLRA's reasonable interpretations of the FSLMRS, and (3) Congress' countervailing labor-management policy concerns (as opposed to the policy concerns of the Inspector General Act), holds that Office of Inspector General(OIG) agents are representatives of the agency for the Weingarten purposes of The court stressed that it was not passing on various FLRA rulings on the scope of section 7114(a)(2)(B). It noted, in this connection, that the 4th Circuit had held that various proposals placing limitations on the manner in which IG agents could conduct investigatory interviews were inconsistent with the Inspector General Act. But the Supreme Court emphasized that "[t]he process by which the scope of § 7114(a)(2)(B) may properly be determined . . . [is a question] not now before us." Summary Based on information supplied by the Federal Bureau of Investigation, a NASA-OIG investigator arranged an interview with an employee. Although he allowed the employee's attorney and union representative to be present, he had limited their participation, which led to a ULP complaint. In 47 FLRA No. 29, the Authority rejected the agency's claim that § 7114(a)(2)(B) applied only to the agency entity having the collective bargaining relationship with the union. It instead found that the Inspector General (IG) investigator was a representative of NASA and therefore was bound by the Weingarten rights provided for by 5 U.S.C. § 7114(a)(2)(B). FLRA went on to find that both NASA and NASA-OIG committed ULPs when the investigator prevented the union representative from actively participating in the examination. The Authority's decision was upheld by the 11th Circuit. Because of disagreement among the circuit courts over the issue of whether OIG investigators are representatives of their agencies for the purposes of 5 U.S.C. § 7114(a)(2)(B), the Supreme Court granted certiorari. The Court summed up its position as follows: The question presented in this case is whether an investigator employed in NASA's Office of Inspector General (NASA-OIG) can be considered a "representative" of NASA when examining a NASA employee, such that the right to union representation in the FSLMRS may be invoked. § 7114(a)(2)(B). Although certain arguments of policy may support a negative answer to that question, the plain text of the two statutes [i.e., the Inspector General Act and the FSLMRS], buttressed by administrative deference and Congress' countervailing policy concerns, dictates an affirmative answer. [Emphasis added.] FSLMRS arguments. In reaching the above conclusion, the Court rejected agency contentions that, among other things, § 7114(a)(2)(B) "should be limited to investigations by representatives of that part of the agency management with responsibility for collectively bargaining with the employee's union." Employing ordinary tools of statutory construction, in combination with the Authority's position on the matter, we have no difficulty concluding that § 7114(a)(2)(B) is not limited to agency investigators representing an "entity" that collectively bargains with the employee's union. IGA arguments. Nor was the agency's narrow reading of § 7114(a)(2)(B) warranted by the Inspector General Act (IGA) of 1978 (which the Court noted was enacted the day before the FSLMRS was enacted). Although the Court owed no deference to FLRA's interpretation of the IGA, the Court said it was unnecessary for it to defer because "a careful review of the relevant IGA provisions plainly favors the Authority's position." After briefly describing the IAG's provisions on the roles and responsibilities of OIGs, the Court acknowledged that Congress intended that OIGs be given a great deal of autonomy in carrying out their missions. But unlike the jurisdiction of many law enforcement agencies, an OIG's investigative office, as contemplated by the IGA, is performed with regard to, and on behalf of, the particular agency in which it is stationed.... In common parlance, the investigators in NASA's OIG are unquestionably "representatives" of NASA when acting within the scope of their employment. The Court went on to find that NASA and NASA-OIG overstated the inherent conflict between an OIG and its agency. "[N]ot all OIG examinations subject to § 7114(a)(2)(B) will implicate an actual or apparent conflict of interest with the rest of the agency; and in many cases we can expect honest cooperation between an OIG and management-level agency personnel." Indeed, certain limitations on OIG authority (e.g., it cannot subpoena witnesses nor discipline agency employees) "enhance the likelihood and importance of cooperation between the agency and its OIG." Considering NASA-OIG's statutorily defined role within the agency, we cannot conclude that the proper operation of the IGA requires nullification of [section] 7114(a)(2)(B) in all OIG examinations. [Emphasis added.] Policy arguments. (Maintaining confidentiality.) The Court also found NASA and NASA-OIG's contention that enforcement of § 7114(a)(2)(B) would make it difficult to maintain the confidentiality of OIG investigations not sufficiently weighty. It noted that the agency identified no authority restricting an employee from discussing the matter with others. Moreover, many investigations having confidentiality concerns would not even involve § 7114(a)(2)(B). Interviewing an employee who may have information relating to agency maladministration, but who is not himself under suspicion, ordinarily will not trigger the right to union representation. Thus, a variety of OIG investigations and interviews . . . will not implicate § 7114(a)(2)(B) at all. [Emphasis added.] (Impairing OIG performance.) As for the claim that FLRA's broad interpretation of section 7114(a)(2)(B) would impair the OIG's ability to perform its investigatory responsibilities, the Court said the following: To resolve the question presented in this case, we need not agree or disagree with the Authority's various rulings regarding the scope of § 7114(a)(2)(B), nor must we consider whether the outer limits of the Authority's interpretation so obstruct the performance of an OIG's statutory responsibilities that the right must be more confined in this context. [In a footnote the Court said the following: The same can be said of NASA and NASA-OIG's concerns that the reach of [section] 7114(a)(2)(B) will become the subject of collective bargaining . . . . See United States Nuclear Regulatory Commission v. FLRA, 25 F.3d 229 (CA4 1994). . . .] Comment Although the Supreme Court has settled the issue of whether OIG investigators are representatives of the agency for Weingarten purposes, the Court emphasizes that it is not passing on the scope of § 7114(a)(2)(B). Indeed, there are hints throughout its decision that, with respect to the scope of § 7114(a)(2)(B), there must be a careful balancing of an employee's Weingarten rights against the purposes of the Inspector General Act. See, in particular, the quotes immediately above these comments. The close vote on the issue may also prompt the Authority to be particularly sensitive to union representative behavior or bargaining proposals that seriously impair the OIG's ability to do its job. There is also a tension between (1) the Court's remark that "interviewing an employee who may have information relating to agency maladministration, but who is not himself under suspicion, ordinarily will not trigger the right to union representation" and (2) FLRA Weingarten decisions in which the Authority has rejected agency claims that it was absolved from honoring the employee's Weingarten rights because the investigator had told the employee that he was not the "subject" of the investigation. See, e.g., IRS v. FLRA, 671 F.2d 560 (D.C. Cir. 1982), affirming 4 FLRA No. 37 (1980) (employee had a reasonable fear of discipline even though he was told that it was a "third party interview" and that he was not the subject of the investigation). EXECUTIVE ORDER 12871 NOT AN "ELECTION" TO BARGAIN ON (b)(1) TOPICS. National Association of Government Employees, National Association of Government Employees, Local R1-8, and Patent Office Professional Association v. Federal Labor Relations Authority, Nos. 98-1313, 98-1317 and 98-1377 (DC Cir, June 25, 1999). Holding The D.C. Circuit upheld the Authority's decision in 54 FLRA No. 43 where the Authority held that section 2(d) of Executive Order 12871 does not constitute an election to bargain over section 7106(b)(1) subjects. Although the court didn't defer to FLRA's interpretation of Executive Order 12871 because the Order was outside FLRA's domain, the court's de novo review of the Order resulted in the same conclusion as FLRA's. Summary In Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, 54 FLRA No. 43 (reported in Significant Cases No. 124), the Authority held that section 2(d) of Executive Order 12871 does not constitute an election to bargain over section 7106(b)(1) subjects. That decision was appealed to the D.C. Circuit. Although the court didn't defer to FLRA's interpretation of Executive Order 12871 (because the Order was outside FLRA's domain), the court's de novo review of the Order resulted in the same conclusion as FLRA's. Pointing to the plain language of section 2(d), the court noted that the Order doesn't state that the President elects to negotiate, but rather directs heads of agencies and their subordinates to negotiate on (b)(1) matters. With respect to the union's claim that such an interpretation would make it impossible to enforce the Presidential directive, the court noted that "[a]n insubordinate agency is subject to Executive Branch enforcement of the EO through persuasion and, ultimately, termination [sic] of the resisting official." Because the language of EO 12871 in its entirety is clear, and because the petitioners provide no reason to depart there from, we conclude that EO 12871 does not constitute a section 7106(b)(1) election. Accordingly, the petitions for review are denied. SETTLEMENT AGREEMENTS Pagan v. Department of Veterans Affairs, No. 97-3395 (Fed. Cir., March 16, 1999). Holding When an agency agrees to provide the appellant with a "clean record" as part of a settlement agreement, it places itself in an awkward position when responding to inquiries from potential employers about the appellant. In this case, the agency was found to be in breach of the settlement agreement, because it provided a response of "no comment" to a questionnaire from a potential employer about the appellant's work history. Summary Finding that the agency did indeed violate a settlement agreement, the court vacated the decision of the Merit System Protection Board (MSPB) to deny a petition for enforcement and remanded the case back to MSPB to decide an appropriate remedy. In this case, the parties agreed to a settlement agreement, under which the appellant agreed to resign for personal reasons and withdraw his appeal of removal before MSPB. During the settlement process, the appellant indicated to the administrative judge that he wanted a "clean record," because he was in the process of securing employment with the United States Postal Service (USPS). As part of the settlement agreement, the appellant was provided with back pay and $8,000 in settlement fees. The settlement agreement specifically stated that the appellant would receive a clean record and that all charges (in this case there were multiple charges) and actions would be removed from the appellant's personnel file. When the appellant completed his employment application form with the USPS, he indicated that his appeal of removal from the Department of Veterans Affairs (DVA) was pending. When the settlement agreement was finalized, the appellant provided a copy of his resignation to the USPS and explained during a job interview that a confidential agreement had been reached. When the USPS contacted the DVA to obtain more information, an official at the DVA indicated on the questionnaire that due to uncontrollable circumstances, no questions could be answered nor comments provided regarding the appellant's performance, attendance, etc. Soon thereafter, the appellant was informed by the USPS that no positions were available. When the appellant alleged that the DVA had violated the settlement agreement, the administrative judge ruled in favor of the agency, noting that the settlement agreement was silent on the issue of future employment references and recommendations and that the "no comment" response to the questionnaire did not violate the agreement because none of the terms of the agreement were divulged. On review, the court noted that the appellant's intent for a "clean record" was to remove any adverse information so that future employment considerations would not be affected. The court held that the "clean record" text of the settlement agreement meant that the appellant's record was to be restored to its former state--including un-controverted performance ratings of "fully successful" and "highly successful." While the settlement agreement was clear that the agency would remove all charges and actions from the appellant's personnel record and would refrain from disclosing the terms of the confidential agreement, the agreement did not specify how to respond to potential employers about the appellant's work history. The court held that even though the agency did not promise to provide a favorable reference (or any reference at all), the agency was required to act as if the appellant had a "clean record." Thus, the manner in which the agency responded to the USPS questionnaire strongly suggested that the appellant did not have a "clean record," and therefore constituted a breach of the settlement agreement. In its closing arguments, the court opined on its concerns over agency settlement agreements that allow an unsatisfactory employee to resign in exchange for a personnel record clear of all charges and adverse actions. Comment In today's climate of reaching settlement in order to avoid a lengthy and costly appeals process, the court reminds us of a settlement practice that should be entered into very cautiously. In Pagan, the court points out the weakness of management in agreeing to provide an employee with an opportunity to resign with a "clean record," in lieu of pursuing the appeal process. As the court points out, the employee expects that a "clean record" will prevent potential employers from learning any adverse information about the employee. However, the former employer who agrees to the "clean record," is forced to either lie when asked about the employee or come up with some artful evasion. It will be interesting to learn what remedy DVA establishes for Pagan, on remand. JURISDICTION ... USERRA Jeffrey N. Thomsen v. Department of Treasury, No. 98-3255 (Fed. Cir. March 5, 1999) Holdings Membership in the U.S. Army Reserves (Ready Reserves) is not a benefit of employment. A clear nexus between an allegedly denied benefit and one's employment is an essential component of a USERRA claim that involves a denial of a benefit of employment. Summary The agency maintained a policy that prohibited employees of the Uniformed Division (UD) from membership in the United States Army Reserves (Ready Reserves). These employees occupied "key" positions under Title 32 CFR § 44.5(10)(b)(2)(I), which allows agency heads to designate employees that "occupy positions that cannot be vacated during a national emergency or mobilization without severely impairing the capability of their agency to function effectively." The appellant, who was a member of the UD, was also an active member of the Ready Reserves. The Army transferred the appellant to inactive status upon learning from the agency that the appellant was considered a "key" employee. The appellant filed a complaint with the Department of Labor. He alleged that the agency was in violation of USERRA by designating him as a "key" employee. He argued that this designation which resulted in his removal from the Ready Reserves denied him a "benefit of employment." On review, the Department of Labor issued a decision finding that the agency did not violate USERRA. The appellant then filed a complaint with the Merit Systems Protection Board (Board). The Board found that the appellant's designation as a "key" employee and subsequent removal from the Ready Reserves was a denial of a benefit of employment; however, it dismissed the complaint for a lack of jurisdiction because the "alleged improper denial of an employment benefit occurred before the effective date of the USERRA discrimination provision." The appellant filed an appeal with the Federal Circuit. The court disagreed with the Board's finding that membership in the Ready Reserves is a benefit of employment under USERRA. In this case, the appellant must show that a benefit of his employment has been denied as a result of his military status. The court held that membership in the Ready Reserves, in and of itself, is not a benefit of the appellant's employment. Rather, the statute prohibits discrimination by employers on the basis of an employee's military status. A clear nexus between an allegedly denied benefit and one's employment is an essential component of this type of USERRA claim. Since the appellant had no such nexus to his employment in his agency, his removal from the Ready Reserves was not a denial of a benefit of employment. The court did not adjudicate the timeliness of the appellant's complaint due to its determination that the Board erred in deciding this case. Accordingly, the court vacated the Board's decision and remanded the case for further proceedings JURISDICTION James L. Worthington v. United States, No. 98-5160 (Fed. Cir. February 8, 1999) Holding The Merit Systems Protection Board (Board) only has jurisdiction over claims of back pay if it has (or had) jurisdiction over the underlying claim. Summary The employee's supervisor required him to work a compressed work schedule to ensure that he was "on the job when needed." The employee was subsequently removed for unacceptable performance. Following his removal, the employee filed a formal discrimination complaint with the Equal Employment Opportunity Commission contending that he was unlawfully placed on a compressed work schedule which was a violation of the Federal Employee Flexible and Compressed Work Schedules Act (FEFCWSA). The agency canceled and rescinded the agency's letter of instruction requiring him to work such a schedule. The employee then filed a claim with the Court of Federal Claims seeking compensation under the Back Pay Act for the time he worked the compressed work schedule. The Court of Federal Claims (CFC) dismissed the claim for lack of jurisdiction claiming that the Board had the exclusive authority to hear his claim. The employee filed an appeal with the Federal Circuit arguing that his claim is outside the scope of the Civil Service Reform Act (CSRA) and therefore the Board does not have jurisdiction. He further contended that the CSRA does not remove the CFC jurisdiction otherwise granted by the Tucker Act. The Tucker Act gives the CFC jurisdiction over claims against the United States. These claims must invoke a statute that mandates the payment of money damages. On review, the Federal Circuit initially determined that the employee's Back Pay Act claim fell within the terms of the Tucker Act. However, the Federal Circuit also noted that Fausto v. United States,484 U.S. 439 (1988), deprived the CFC of jurisdiction over personnel actions covered by the CSRA. However, in Romero v. United States, 38 F.3d at 1211, it held that the CSRA does not encompass every adverse personnel action against a Federal employee. Therefore the Federal Circuit, in this case, had to determine whether the CSRA covered the employee's claim. Based on previous case law, the Federal Circuit held that where the Board has jurisdiction over a claim, the CFC does not; and where CFC has jurisdiction over a claim the Board does not. The Federal Circuit found that the employee's claim for violation of the FEFCWSA did not fall within the jurisdiction of the Board. Furthermore, in Spezzaferro v. Federal Aviation Administration, 24 MSPR 25 (1984), the full Board clarified the Board's jurisdiction over back pay claims. In Spezzaferro, the Board held that it only has jurisdiction over claims of back pay if it has (or had) jurisdiction over the underlying claim. The Federal Circuit held that the Board has no jurisdiction over the employee's claim and therefore, per Spezzaferro, no jurisdiction over his back pay claim. Therefore, because the employee's claim is not within the scope of the CSRA, but falls within the jurisdiction of the Tucker Act, the CFC has jurisdiction to adjudicate this dispute. The Federal Circuit reversed the CFC's decision and remanded it for further adjudication. FLRA DECISIONS 55 FLRA No. 101 Association of Civilian Technicians, Evergreen Chapter and National Guard Bureau, Military Department, State of Washington, 0-NG-2385, June 30, 1999, 55 FLRA No. 101. Holding Two proposals, both dealing with how to evaluate the qualifications of Production Inspectors to certify aircraft repairs, do not deal with methods, means, or types within the meaning of § 7106(b)(1). Summary In August 1996 the agency implemented a program to increase the number of Production Inspectors who were qualified to certify repairs of certain aircraft maintenance conditions. This program included the use of a book of consolidated questions (but not answers) and reference materials that were distributed to work centers. The program also required that Production Inspectors review and complete an open book questionnaire, using the book of consolidated questions and reference materials. In Proposal 1 the union proposed that this program be rescinded and the previous method of determining qualifications be restored. Under Proposal 2, intended to be an alternative to Proposal 1, the union proposed the following: Consolidate questions and answers into a book, this book would then be distributed to all relevant work centers, and once a year production inspectors would review [the book] and be signed off by their immediate supervisors [as having the knowledge stated in the book, upon demonstration satisfactory to the supervisors.] [Bracketed inserts are by FLRA.] Because the union did not dispute that its proposals affected management's rights to assign work and assign employees (where both rights include the right to determine the qualifications of employees), or claim that the proposals were mandatory subjects of bargaining within the mean-ing of § 7106(b)(2) 'procedures' or § 7106(b)(3) 'appropriate arrangements,' the Authority first determined whether the proposals fell within the scope of § 7106(b)(1). Proposal 1. Noting that § 7106(b)(1)'s reference to "methods" was intended to mean "how" work is performed, and "means" was intended to mean "with what," the Authority rejected the union's claim that Proposal 1 dealt with methods and means because the union didn't show how returning to the previous method of determining qualifications would change how or with what the work is performed. Nor did the proposal deal with § 7106(b)(1) "types" of employees. FLRA pointed out that "types" of employees are part of "staffing patterns." "As Proposal 1 does not concern staffing patterns," said FLRA, "it does not concern 'types' of employees under section 7106(b)(1)[.]" Proposal 2. The majority (Member Wasserman dissenting) found that this proposal consisted of two separate requirements. First, it would require the agency to establish and distribute to work centers a question-and-answer book containing information necessary for certification of air-craft repairs. Second, it would require that the book be used, instead of the agency-proposed questionnaire, to determine whether inspectors are qualified to certify aircraft repairs. With respect to the first requirement, the majority said that "the requirement in the proposal that the Agency develop the question-and-answer book for distribution and use as a guide in performing certifications would appear, consistent with established precedent, to constitute a means of performing work." However, because the union did not request that Proposal 2's parts be severed, and because the second part of the proposal required that qualifications be determined in a certain way, the majority held that the proposal in its entirety did not deal with a means of performing work. It therefore is not an elective subject of bargaining. Given that there was no dispute that the proposal, in requiring that qualifications be determined in a certain way, affected management's right to assign employees, the Authority held that the proposal is outside the duty to bargain. In his dissent, Member Wasserman held that the two parts of the proposal (which he called "aspects") were inseparable and the part requiring that the instructional book contain answers was the "dominant requirement." In finding the proposal negotiable at the election of the agency, he said the following: The Authority has applied a definition of "means" that includes "tools" used to accomplish or further the performance of an agency's work. . . . Quite clearly, the instructional book was designed to be used by employees to perform one aspect of their work, namely, conducting aircraft certifications. It is obvious to me that proposals that provide employees with the tools to perform their jobs concern the work that the agency performs and, as such, involve the means of performing work. 55 FLRA No. 99 Department of Housing and Urban Development, Rocky Mountain Area, Denver, Colorado and American Federation of Government Employees, Local 3972, DE-CA-50202, 55 FLRA No. 99. Holding The employer did not commit a ULP when it terminated a local practice that was inconsistent with the national agreement. (Under the practice at issue, a local supervisor allowed the union president to deviate from the national agreement's requirement that all bargaining unit employees sign in and out of work sequentially, every day, on the same sign-in/sign out register.) Summary Article 17 of the national agreement between HUD and AFGE required, among other things, that all bargaining unit employees sign in and out of work sequentially, every day, on a sign in/sign out register. (By "sequentiall" the parties meant that the first employee reporting to work would sign in on the first line of the register, indicating time of arrival; the second employee reporting to work would fill in the second line; etc.) The national agreement also stated, in Article 34, that local agreements may not modify, nullify, or conflict with the terms of the national agreement. The local union president had been signing in and out sequentially, as required by the national agreement. But as a result of a reorganization that caused him to spend 100% of his time on representational duties, his supervisor allowed the local president to leave a phone number where he could be reached in lieu of signing in and out. This deviation (hereafter referred to as "practice") from the requirements of the national agreement continued until a new supervisor insisted that the local president follow the national agreement's requirements. Although the local president complied with the directive to sign in and out, he did not do so sequentially, but instead used a separate sign in/out sheet. When HUD's Acting Deputy Director for Human Resources directed the local president to sign in and out sequentially, a ULP charge followed, claiming that management unilaterally changed the local president's practice without bargaining with the union. The ALJ interpreted Article 34 as prohibiting practices modifying the agreement. Because no exceptions were filed to this interpretation of Article 34, it was adopted by FLRA without precedential significance. The ALJ also found that the plain language of Article 17 required that the local president sign in and out sequentially. "We agree," said FLRA, "that the plain language supports the Judge's conclusion that Article 17 applies to the Local President, as it requires all employees, without exception, to sign in and out sequentially." General Counsel attempts to support an alternative interpretation were found insufficient. The General Counsel offers only the circumstances of one of the AFGE negotiators, i.e., a local union president having a "side bar" agreement with his local management allowing special sign in/sign out procedures, and a second union representative on 100% official time, as proof of the parties' intent in negotiating the nationwide agreement. This is an insufficient basis on which to reject the Judge's interpretation of the article [i.e., Article 17]. The evidence relied on by the General Counsel falls short of, for example, rejected proposals and minutes of bargaining sessions. Nor was FLRA persuaded by the General Counsel's use of extrinsic evidence regarding the intent of the parties. "Here, the Judge relied on the language of the article itself and inferences from the agreement as a whole--that is, the fact that Article 17 required everyone to sign in and out sequentially without providing any exceptions--more than the unwritten and disputed bargaining history of the parties.' It also rejected the General Counsel's argument that the practice was evidence of the intent of the parties. FLRA noted that, in the case at bar, "the level of the agency that negotiated the agreement was unaware that a contrary practice was being used at the local level." Because there was "no basis for finding that HUD Denver committed a ULP when it insisted on returning without bargaining to the practice mandated by Article 17[,]" FLRA dismissed the complaint. Comment FLRA didn't address the conclusion of the ALJ that, even in the absence of Article 34, HUD, Denver, couldn't be considered as "responsible management" capable of establishing binding past practices contrary to the national agreement. "[W]e do not foreclose," said FLRA, "the possibility in some future case that, in the absence of an agreement provision like Article 34, local management officials could establish a binding practice that is contrary to the terms of a nationwide agreement." (Emphasis added.) Negotiators of national agreements be forewarned! 55 FLRA No. 98 Association of Civilian Technicians, Volunteer Chapter 103 and U.S. Department of Defense, Tennessee National Guard, Nashville, Tennessee, 0-NG-2404, June 30, 1999, 55 FLRA No. 98. Holding In a case turning on the meaning of ambiguous contract provisions that had been disapproved by the agency head, Chairperson Segal, distinguishing between how one should interpret proposals and how one should interpret disapproved provisions, dissents with the majority's adoption of the interpretation advanced by the union and urges that fact finding be used to collect evidence concerning the negotiation of the disputed selection procedure that the majority, adopting the union's interpretation, found did not "affect" management's right to select. Summary The disapproved provision in dispute reads, in part, as follows: Section 17. Selecting Official Actions: Selecting officials have the right to select or not select any of the candidates referred to them. However, at the direction of the agency, he must select only from the well qualified group. The selecting official will: The agency argued that the first paragraph of Section 17 was intended to prevent the agency from selecting from among qualified candidates or candidates from other sources if there are well-qualified candidates. Consequently this provision, in restricting the sources from which management could make selections, violated management's § 7106(a)(2)(C) right to select. The union disagreed, saying that the selecting official must select from the well-qualified group only if the agency directs the official to do so. The agency also argued, among other things, that paragraph (b) of Section 17, in requiring management to non select the well-qualified candidates before being able to consider other candidates, prevented management from comparing and evaluating all the candidates. That is, in order to consider qualified candidates, the selecting official must first non select well-qualified candidates, and consequently, the well-qualified candidates are removed from further consideration and comparison. The union responded by stating that a decision not to select the well-qualified candidates would not be irrevocable. If, after considering other candidates (provided there has been non selection with explanations for the previous group referred for consideration), management wants to make its selection from the initially non selected group, it may do so. The Authority was in agreement that the first paragraph, in restricting selections to the well-qualified candidates only when directed to do so by the agency, did not interfere with the agency's discretion to make selections from any source. By providing that the selecting official must select, only at the direction of the Agency, a candidate from among well qualified "area 1" candidates, the first paragraph preserves the Agency's discretion to consider sources other than that group of candidates But they disagreed over the interpretation to be placed on paragraph (b) of Section 17. The majority, in adopting the union's interpretation of this paragraph, said the following: As to the Agency's argument that Section 17(b) would preclude management from comparing candidates before making a selection, that argument is based on a misunderstanding of the proposal [i.e., provision]. The selecting official's decision is not irrevocable. Thus, the official can decide initially not to select from among the well-qualified "area 1" candidates referred for first consideration . . . and then examine qualified "area 1" candidates. After examining those candidates, the selecting official may choose from among the well qualified, or the qualified "area 1" candidates, or expand the area of consideration. In this regard, the plain terms [emphasis added] of the last sentence of Section 17(b)(4) provide that the Agency is limited to selecting from among qualified area candidates or expanding the area only if there are no well qualified "area 1" candidates. In disagreeing with the majority's interpretation of paragraph (b), Chairperson Segal said the following: If the provision means what the Union posits, then I agree with the majority that it does not affect the Agency's right to make selections. By the same token, however, if the Agency is correct that the provision requires it to make selection decisions on particular candidates without evaluating others, then Authority precedent requires finding that the provision affects the Agency's right to select. . . . In sum, this is a case where the meaning of the disapproved contract provision is dispositive of whether it is contrary to law. Chairperson Segal said the only thing that was "plain" about the last sentence of section 17(b)(4) was "that the provision is ambiguous on whether non selections by the Agency, pursuant to the terms of the provision, are revocable." She went on to distinguish between contract proposals and contract provisions. Regarding the former, the Authority defers to the union's interpretation of the proposal's meaning "provided that its words can be read in a manner that is not inconsistent with the asserted interpretation." This was reasonable, given that "only the union, as the drafter, can know what it intended the proposal to require[.]" If this case had involved a union proposal, rather than a disapproved contract provision, she would have deferred to the union's view of the proposal's meaning. However, this case involved a contract provision, not a proposal, and it was her view that it was inappropriate to defer to the union's interpretation of the provision. "Indeed, there appears to be solid support for employing an entirely different principle and construing any ambiguity in a provision against the party who drafted its words. See Mastrobuono v. Shearson Lehmen Hutton, Inc., 514 U.S. 52, 62-63 (1995)." Because the record contained no information on the negotiation of this provision, Chairperson Segal said that FLRA should conduct a fact finding proceeding. "I believe that the Authority has an obligation to do so prior to reaching its decision, and see no basis to disparage taking steps to find facts as a[] 'academic exercise.'" 55 FLRA No. 95 Social Security Administration [SSA], Region VII, Kansas City, Missouri and American Federation of Government Employees [AFGE], Local 1336, DE-CA-70818, June 30, 1999, 55 FLRA No. 95 Holding FLRA found, under both the "covered by" and "allowed by" defenses, that an SSA facility located in a multi-tenant building committed a ULP when it unilaterally supported the banning of smoking in the GSA-operated cafeteria and refused to complete bargaining on the matter. Since GSA, not SSA, implemented the ban based on the unanimous support for such a ban by the tenant agencies, FLRA directs SSA to "support" a recission of the ban and to reduce the impact of that ban on unit employees. "Allowed by" analytical framework. Although Article 9, Section 17 of the National Agreement provides that there is to be no smoking in any SSA facility, that provision did not allow the agency to take the action it did because the GSA-operated cafeteria is not an SSA facility. "Covered by" analytical framework. Given that an MOU established a union right to initiate midterm bargaining unless the matter was set forth "explicitly and comprehensively" in the agreement, and given that smoking policy for multi-tenant buildings isn't "explicitly and comprehensively" set forth in the national agreement, management had effectively waived its right to assert a "covered-by" defense. Summary A multi-tenant building administered by GSA had a board of directors (board), made up of representatives of each tenant agency, that decided issues concerning the building. At the time, smoking was permitted in the cafeteria, but restricted to a certain area. GSA's policy on smoking in the cafeteria was that it would ban smoking if all tenant agencies approved of such a ban. In May 1997 the board unanimously approved eliminating smoking in the cafeteria. However, because board approval was contingent on agencies notifying the unions representing their employees and discharging any bargaining obligations, SSA notified the union of board approval of the ban, but refused to bargain. A ULP complaint followed. The agency argued that it had no duty to bargain because, among other things, its national agreement with AFGE expressly encompassed the matter of smoking in multi-tenant buildings and thus the matter was already "covered by" the national agreement. Specifically, Article 9, Section 17 of that agreement states that "there shall be 'no smoking' in any SSA facility." (Emphasis added.) That and other agency arguments were rejected by the Administrative Law Judge (ALJ) hearing the matter. In deciding what approach to take in deciding the matter, the ALJ distinguished between the "covered by" analytical framework*, as articulated in SSA, 47 FLRA No. 96, and the IRS framework, as articulated in IRS, 47 FLRA No. 103 (which we will refer to as the "allowed by" framework). In the ALJ's view, the case at bar was controlled by the "allowed by" frame-work. He went on to reject the agency's claim that Article 9, Section 17 of the national agreement allowed the agency's actions, holding that the cafeteria was not an SSA facility. Although he based his decision on the "allowed by" framework of 47 FLRA No. 103, the ALJ indicated that even if the "covered-by" framework of 47 FLRA No. 96 were applicable, he would find that the agency didn't establish a "covered-by" defense because, as required by an MOU dealing with midterm bargaining, there was a contractual duty to engage in midterm bargaining "[u]nless it is clear that a matter at issue is set forth explicitly and comprehensively in the National Agreement or existing MOU[.]" (Emphasis added.) In reviewing the ALJ's decision, the Authority briefly described the differences between the "covered by" and "allowed by" analytical frameworks and held that they were not mutually exclusive. The "covered by" framework focuses on determining whether a union-initiated midterm bargaining proposal deals with a subject matter that has already been resolved by previous bargaining. Under that approach, FLRA applies a three prong analysis in which it determines (1) whether the express language of the agreement reasonably encompasses the subject in dispute, or (2), whether the subject in dispute is inseparably bound up with a subject expressly covered by the agreement, or (3) whether the intent of the parties can be determined from bargaining history and established practices. (Regarding established practices as an indicator of intent, see 52 FLRA No. 2, reported in Significant Cases No. 114, starting on page 10.) Under the "allowed by" framework, FLRA determines whether the actions taken by the agency (as contrasted with union-initiated midterm bargaining) are authorized by the agreement. FLRA went on to say the following: As reflected by the discussion of these two frameworks and as this case demonstrates, both defenses could conceivably be raised in the same case. . . . To the extent that there is any confusion as to whether these defenses are mutually exclusive, we take this opportunity to specifically rule that they are not and that a respondent may rely on both defenses in the same case. The Authority agreed with the ALJ's application of the "allowed by" framework. "[W]e conclude that the Judge correctly refused to extend the smoking ban for SSA facilities to the . . . cafeteria." Although the ALJ erred in finding that the "covered by" framework didn't apply, FLRA agreed with the ALJ that the agency failed to demonstrate that bargaining on the topic of smoking in multi-tenant buildings was "covered by" no-smoking provisions in the national agreement. In reaching this determination, the Authority relied on a MOU that provided that, in the words of the Authority, "a subject was not foreclosed from further bargaining unless the subject in dispute was set forth explicitly and comprehensively in an agreement." In FLRA's view, smoking policy for multi-tenant buildings was not explicitly and comprehensively set forth in the 1996 agreement.
Comment Because it was GSA, not SSA, that had authority to implement a cafeteria smoking ban, the FLRA found that SSA committed a ULP when it unilaterally "supported" the smoking ban. Does this mean that agencies must bargain with unions on whether they should support or oppose proposed legislation or Governmentwide regulations affecting conditions of employment? Probably not, given that FLRA said the following in 8 FLRA No. 87, a case dealing with cafeteria prices: [T]he Authority has held a proposal concerned with influencing legislative action to change conditions of employment to be outside the duty to bargain because the relationship between political efforts to influence legislative action, on the one hand, and changes in personnel policies, practices, and matters affecting working conditions, on the other hand, is, at best, remote and speculative. [6 FLRA No. 106 cited.] This analysis would similarly apply to proposals concerned with influencing the content of Government-wide regulations to affect conditions of employment. Presumably FLRA would distinguish the case at bar on the ground that the effect of SSA's support for the cafeteria smoking ban was not "remote and speculative," given that GSA indicated that it wouldn't implement the smoking ban unless there was unanimous agency support for the measure. MSPB DECISIONS COMPENSATORY DAMAGES ... MOOT ACTION Rodney Spencer v. Department of Navy, DC-0752-96-0116-C-1 & DC-0752-96-0116-P-1, May 5, 1999. Holding An appellant's entitlement to back pay and benefits is not limited by the award of disability retirement if the agency is canceling the appealed removal in response to a Board order rather than in response to the award of disability retirement. Summary The appellant succeeded in having the Board reverse his 1995 removal for inability to perform and the case was remanded to the administrative judge for a hearing on compensatory damages based on a finding of disability discrimination. In that case, the Board found that the agency failed to provide evidence that the employee was not performing his duties successfully and found that the agency perceived him to be disabled and its removal action was, therefore, discriminatory. When the agency canceled the removal and reinstated the appellant in accordance with the Board's January 1997 order, it found that the appellant had been in receipt of disability retirement benefits which, though awarded on June 27, 1996, were retroactive to his removal date, October 1, 1995. On February 28, 1997, OPM rescinded the disability retirement based on the agency's action to reinstate the employee with back pay. The administrative judge ordered the parties to submit arguments on the question of what impact OPM's approval of the disability retirement had on the appellant's claim for compensatory damages and entitlement to back pay as well as whether 42 USC §1981a(a)(3) impacted on the appellant's claim. On his own motion, the administrative judge certified these issues to the Board for a ruling. Additionally, the judge asked the Board to consider reopening the case based on the appellant's receipt of disability retirement. The Board declined to reopen the case, finding that the retroactive cancellation of the disability retirement in February 1997 (which resulted from the agency's actions to comply with the Board's order) removed the basis for the agency's argument. The Board reasoned that if there were no disability retirement benefits, then there could be no inconsistency with its earlier ruling on perceived disability discrimination. Next, the Board addressed the issue of whether the appellant's entitlement to back pay and benefits was limited by the June 1996 award of disability retirement benefits. The administrative judge had suggested that Cooper v. Navy, 108 F.3d 324 (Fed. Cir. 1997) governed this case and the appellant should only be entitled to having the removal action canceled and all references deleted from his official personnel folder. The Board held that Cooper would not apply because in that case, the agency canceled the removal action and replaced it with a retirement action after receiving notification that OPM had awarded disability retirement, thus making the appeal of the removal moot. Here, the agency's act to cancel the removal was in response to a Board order, not on OPM's disability benefits award. The Board therefore found that the order for reinstatement with back pay and benefits was still valid and ordered the administrative judge to determine whether or not the agency had complied. Finally, the Board addressed the issue of whether 42 USC §1981a(a)(3) limits the appellant's entitlement to compensatory damages. This section of the code provides that where it can be shown that an agency (or any covered entity) has acted in good faith to provide reasonable accommodation but was unable to, compensatory damages may not be awarded. The Board rejected this argument because it found that reasonable accommodation was not involved in this case. It is the Board's position that "the agency had erroneously regarded the appellant as disabled when in fact he was performing the duties of his position satisfactorily up until his removal without any accommodation." Finding that the language regarding reasonable accommodation does not apply in this case, the Board returned the case to the administrative judge with instructions to adjudicate the claim for compensatory damages. MSPB PROCEDURES William L. Christofili v. Department of the Army, PH-0752-97-0216-I-3, March 29, 1999. Holding An appellant before the Merit Systems Protection Board is not restricted by the Board's discovery procedures, but may use any lawful means to gain information relevant to the case. The Board has no authority to enforce state rules of professional conduct against an attorney representative in proceedings before it. Summary The appellant appealed his removal and the process of discovery began. The agency representative became aware that the appellant's representative was approaching some agency employees directly rather than through her. She asked the administrative judge (AJ) to advise opposing counsel that all requests for discovery must be through her. The AJ did not agree that this was required. The agency representative cited an Army Litigation Regulation, which she supplied, and also claimed a violation of the New Jersey Rules of Professional Conduct for attorneys, which she also supplied. She requested that all "information gained in this manner" be excluded from the record. The AJ issued an order denying the motion for sanctions, and the agency requested a stay, and certification of an interlocutory appeal on the following issues: (1) Whether the appellant may only obtain "the disclosure of information" from the agency's employees "through the Board's discovery process"; and (2) Whether the Board has the right to enforce New Jersey's Rules of Professional Conduct. The Board sided with its AJ on both issues, finding that an appellant may obtain relevant in-formation "through any lawful means other than the Board's discovery procedures," and that "[t]he Board has no authority to enforce New Jersey's Rules of Professional Conduct against an attorney representative in proceedings before the Board." There are a number of cites provided on both issues. JURISDICTION ... CONSTRUCTIVE DEMOTION Edward E. Hogan v. Department of the Navy, AT-0752-98-0226-I-1, March 12, 1999 Holding The Merit Systems Protection Board will treat reassignments as constructive demotions only where either the agency or the Office of Personnel Management has taken a classification action to correct a classification error or apply a new classification standard subsequent to the appellant's reassignment. Summary The appellant was reassigned from one WG-8 position to another. He appealed this as a constructive demotion, claiming his original position was misclassified when he occupied it and was really worth a WG-10 classification. In fact, a classification advisory had determined the position should be reclassified at the higher level, and the appellant had successfully claimed back pay for the salary difference for the 2 years he had occupied it up to that point. However, the agency never did upgrade the job. The appellant was told to discontinue performing the higher graded duties instead. He continued to perform at the higher level and filed a classification appeal. The agency then reassigned him and abolished his prior position. The Board found this situation distinguishable from the situations in its key cases on constructive demotion, Russell v. Navy, 6 M.S.P.R. 698 (1981), and Artmann v. Interior, 926 F.2d 1120 (Fed. Cir. 1991), which quotes Russell. In those and other cited cases the agency did take action to upgrade the positions subsequent to the reassignment of the appellants. Here, neither the agency nor OPM ever took an action to correct the classification of the position. The Board stated that "we hereby clarify that the Board will exercise its jurisdiction to hear appeals as constructive demotions only in situations in which the agency or the Office of Personnel Management takes a classification action that is either a correction of a classification action or an application of a new classification standard subsequent to the appellant's reassignment." (Emphasis in original.) Comment The Board appears to be recognizing that agencies have two options when they find an employee is performing duties that warrant a higher grade. One is to upgrade the position. If the higher level duties should have been recognized when the job was previously classified, or if they result from application of a new classification standard, the case law established in Russell and Artmann finds the employee is essentially entitled to be promoted when the job is upgraded. In those circumstances, it is a constructive demotion to reassign the employee instead. However, the other option is to order the employee to stop performing the higher level duties, as the agency did here. There are many legitimate reasons why an agency may choose that course, and the employee has no right to ignore the order and then claim entitlement to a higher level job that doesn't exist. RETROACTIVE PROMOTION ... BACK PAY Charles G. Morgan v. Department of Energy, DE1221950221-R-1, February 10, 1999. Holding After reviewing the statutory authorities under the Whistleblower Protection Act and the Back Pay Act and related amendments, the Board held that it had the authority to order a promotion to GS-14 retroactively. Further, the Board held that it had authority to award back pay for the period between the earliest time of the appellant's non selection for promotion and the Board-ordered prospective promotion Summary In an individual right of action (IRA) appeal, the administrative judge decided that the appellant made disclosures protected under the Whistleblower Protection Act of 1984 (WPA) and that the agency retaliated against the appellant for those protected disclosures by not selecting the appellant for promotion to grade level GS-14 positions, which were posted in a series of vacancy announcements in late 1990, 1992, and 1993. The first nonselection for promotion to the GS-14 grade, occurred in 1990. The initial decision, dated May 12, 1997, which later became the final decision, ordered the agency to promote the appellant prospectively to a GS-14 position (effective May 12, 1997). The appellant, however, claimed promotion and back pay as far back as the earliest date of his non selection to a GS-14 position (i.e., a retroactive promotion effective to February 1990). On review of whether the Board had authority to grant a retroactive promotion with attendant back pay, the Board reviewed the WPA which was codified in title 5, United States Code. The Board cited section 1221(g), which provides that if the Board orders corrective action in an IRA appeal, "the corrective action may include back pay and related benefits . . . and any other reasonable and foreseeable consequential changes." Because the Board had previously held that consequential changes (damages) cannot be retroactive and do not apply prior to October 29, 1994, the Board found the appellant was not entitled to "back pay" and "consequential damages" under this authority. Upon further review, the Board noted that the agency had committed a prohibited personnel practice of not selecting the appellant for several GS-14 positions because of his whistle blowing. Thus, the Board determined that the appellant was affected by a unjustified or unwarranted personnel action under the Back Pay Act. In analyzing whether back pay could be awarded under the Back Pay Act, the Board looked to the legislative history of the Civil Service Reform Act of 1978, (CSRA), which amended the Back Pay Act. The Board found that the legislative history clearly indicated Congress's intent that a denial of an increase in pay was a situation covered by the Act. Further, the Board found that back pay for a retroactive promotion should be awarded under the Act when the retroactive promotion would make the employee "whole for any of the losses" resulting from the prohibited personnel practice. The Board also cited previous case law where it ordered retroactive increases in pay or promotions where the denial of the increase or promotion was a result of an unwarranted or unjustified personnel action (Hoover v. Navy, 61 M.S.P.R. 151 (1994), and Cosgrove v. Navy, 59 M.S.P.R. 618 (1993)). The Board concluded that the appellant was not made whole by merely a prospective promotion. In addition, the Board noted that the legislative history of the CSRA indicated that Congress intended the Board to have broad corrective action authority. This congressional intent would be thwarted if the Board were to find in this appeal that it was limited to ordering a prospective promotion only. The Board found that under the WPA it had authority to order the agency to promote the appellant to GS-14 retroactively to February 1990, the date of the earliest non-selection by the agency due to the appellant's whistle blowing activity. In addition, the Board found that under the Back Pay Act, it had the authority to order the agency to pay the appellant back pay for the period between his non selection in February 1990 and his prospective promotion to a GS-14. Thus, the Board ordered the agency to promote the appellant to GS-14 effective February 1990, and to provide the appellant with the attendant waiting period for purposes of determining within-grade increases, and back pay with interest. Peter Kachanis, Jr. v. Department of Treasury, BN-330-97-0210-I-1, January 22, 1999. Holding An individual who has been placed on an agency's Reemployment Priority List (RPL) following recovery from a compensable injury is not entitled to the special placement benefits afforded current agency employees under an agency Career Transition Assistance Plan (CTAP). Summary Following his recovery more than one year after suffering a compensable injury, the appellant applied to the agency to be rehired to a comparable Revenue Officer position at IRS within his commuting area. The agency did not appoint the appellant at that time but placed him on its Reemployment Priority List, in accordance with OPM's regulations implementing the relevant statutory restoration rights for employees who recover from compensable injury more than one year after the commencement of compensation. The appellant appealed to the Merit Systems Protection Board (MSPB) on the basis that the agency had failed to properly accord him his restoration rights, specifically by failing to provide him with priority consideration for a vacant Revenue Officer, GS-12 position which the agency filled during the time the employee was on the RPL. In his appeal, the appellant argued that the agency had reassigned a current employee into a comparable, vacant Revenue Officer position during the time the appellant was eligible for priority consideration. The agency defended its action with the argument that OPM's regulations only require consideration of RPL candidates before other candidates when an agency fills a job externally. Providing RPL candidates with consideration before a position is filled with an internal candidate is left to the discretion of the agency. Accordingly, in reassigning an internal candidate, IRS was not required to provide priority consideration for its RPL candidates because the vacancy was filled internally. Secondly, the agency stated that it imposed an external hiring freeze in 1995 in anticipation of severe personnel reductions. In this same vein, the agency stated that the employee placed in the job had received a notice that his position was identified as surplus and he was eligible for assistance under the Career Transition Assistance Plan. The administrative judge found in favor of the appellant and ordered the agency to place him in the Revenue Officer position retroactively to the date the internal candidate was reassigned. In reaching his decision, the AJ determined that when OPM wrote its CTAP regulations, it effectively mandated that agencies consider all RPL candidates before making internal placements to vacancies. The AJ noted that this position was in conflict with OPM's existing RPL regulations regarding internal placements but did not further explain the logic of his belief that OPM had implicitly reduced agency discretion in one regulation through the issuance of a new regulation. On appeal to the full Board, the agency reiterated its arguments and the full Board concurred. In its decision, the Board found that the appellant was properly placed on the agency RPL following his recovery. Next, it reviewed the agency CTAP policy in place at the agency and found that it covered only current employees who were found to meet the enumerated definition of "displaced" or "surplus." Since the appellant was no longer an employee of the agency, the Board found that he was not entitled to the special placement rights provided by the CTAP policy. Further, the Board disagreed with the administrative judge's determination that, by application of its CTAP policy, the agency had affirmatively elected to consider RPL candidates before considering its internal candidates in filling a vacancy. The full Board reversed the decision of the administrative judge and affirmed the agency decision not to restore the appellant. Comment OPM regulations address how an agency provides priority consideration to individuals who recover from compensable injury after more than a year of compensation. Relevant to this case is 5 CFR 330.201(a), which states that agencies must give RPL registrants priority consideration over certain outside or external job candidates and, "if it chooses," may also impose this requirement for RPL priority consideration before filling internal vacancies. OPM also developed regulations requiring agencies to develop a CTAP policy for the purpose of efficiently placing surplus or displaced employees. The confusion in this case stemmed from the part of OPM's CTAP regulations (5 CFR 330.606 (b)) which recognizes that there are times when other statutory obligations require an agency to place an employee who is not entitled to CTAP before an otherwise qualified CTAP-eligible employee. Exception (2) covers the reemployment of a former agency employee exercising regulatory or statutory reemployment rights. However, in this case, the appellant's exercise of rights only extended to priority consideration before external candidates, not internal candidates. Since the agency had never exercised its discretion to grant priority consideration to RPL candidates for positions filled internally, the administrative judge erred in his belief that the CTAP exclusions somehow elevated the appellant's protection to higher level than the law and the regulations allowed. MOOTNESS ... JUDICIAL ESTOPPEL ... DISABILITY RETIREMENT ... DISCRIMINATION Michael W. Tompkins v. Navy, DC-0752-95-0413-I-1, January 14, 1999. Ruth S. Lamberson v. Veterans Affairs, DE-0752-97-0456-I-1, January 20, 1999. Holding The doctrine of judicial estoppel precludes a party from adopting contradictory positions in the same or related litigation. An employee's receipt of disability retirement benefits does not judicially estop the employee from pursuing a claim of disability discrimination. However, an employee's statements made in support of an application for disability retirement may be considered in adjudicating any subsequent claim of disability discrimination. Summaries In the case of Tompkins v. Navy, the appellant had filed two separate appeals. In the first, the appellant appealed OPM's decision terminating his retirement benefits in 1994. Information he gained in the course of that appeal led him to file another alleging that his initial retirement on disability was a constructive removal due to agency misinformation. In the first, after extensive proceedings, the appellant eventually received a decision from an administrative judge ordering OPM to grant the appellant's original application for disability benefits and continue his disability status. The constructive removal appeal was held in abeyance pending the outcome of the disability retirement claim. Once the appellant succeeded in his application for disability retirement, the Board applied the doctrine of judicial estoppel to dismiss the second appeal as moot. The appellant was barred from seeking reinstatement and back pay, the potential remedies in his constructive removal case, after successfully litigating his conflicting contention that he was entitled to disability retirement benefits for the entire period of time at issue, continuing to the present. In a concurring opinion that foretold the Board's upcoming Lamberson decision, Vice Chair Slavet noted that the appellant would not have been foreclosed from his appeal had the disability retirement decision hinged on the agency certification that no accommodation for the employee's medical condition was possible. Six days after Tompkins was issued, the Board further clarified its approach to judicial estoppel in Lamberson v. Veterans Affairs, in which it retained jurisdiction of the appellant's discrimination claim even after she had been granted disability retirement and the original removal action had been rescinded by the agency. In this case, the appellant had been removed for physical inability and failure to possess a current nursing license. Prior to appeal, OPM approved her disability retirement and the administrative judge dismissed the case as moot, following the precedent set in Cooper v. Navy, 108 F.3d 324 (Fed. Cir. 1997). The Board found, as it had in Currier v. U.S. Postal Service, 79 M.S.P.R. 177 (1998), that the rationale set forth in Cooper is inapplicable in a case with a pending claim for compensatory damages (or other relief), as was the case here. Having reversed the mootness determination, the Board then considered whether the appellant's receipt of disability retirement benefits precluded her from challenging the agency's failure to reasonably accommodate her medical condition. The Board determined that an administrative determination by OPM to grant retirement benefits is not the equivalent of an adjudicatory decision by a third party on the issue of the agency's efforts to accommodate. It noted that the disability retirement applications for the Civil Service Retirement System and the Federal Employees' Retirement System do not ask the applicant any questions regarding accommodation, and simply require a statement by the employing agency on accommodation efforts. Therefore, the Board found that an award of benefits under either system could not be considered a statement by the appellant that she could not be accommodated. Since judicial estoppel applies only where a party is adopting inconsistent litigating positions, it would not apply here. The Board then went on at some length to compare court decisions where the receipt of Social Security disability benefits had not been considered an absolute bar to litigation on a claim under the Americans with Disabilities Act. Finally, the Board cited guidance from the publication entitled, EEOC Enforcement Guidance: Effect of Representations Made in Applications for Disability Benefits on the Determination of Whether a Person Is a "Qualified Individual with a Disability" Under the Americans with Disabilities Act of 1990. From it, the Board adopted a framework for determining, on a case-by-case basis, what impact an appellant's application for disability retirement benefits will have in future litigation of discrimination claims. Among other things, the guidance recommends a consideration of whether or not reasonable accommodation was denied. The Board remanded this case for argument and evidence on the issue of the discrimination allegation and instructed the administrative judge to use the suggested EEOC approach in evaluating the impact of the approved disability retirement benefits on the appellant's claim of discrimination. Comment These cases outline an important distinction. In the first, it was the appellant who argued that he was disabled from useful service, and presented evidence which successfully supported that contention. In the second, the appellant argued that she could have performed had the agency appropriately accommodated her disabling condition. The Board has demonstrated that it will take a case by case approach, and agencies must do the same, considering whether the employee has contended that there are accommodations that would allow successful performance, and whether any such contention is meritorious. Joseph F. Pezdek v. Department of Defense, NY-0351-95-0569-I-2, January 14, 1999. Holding Despite a finding of error in the application of the reduction in force regulations, the Board will not reverse an agency's action unless there is evidence that the error adversely impacted an appellant's substantive entitlements under the regulations. Summary The appellant's position was abolished and he accepted a one-grade demotion. He appealed the action to the Merit Systems Protection Board on the basis that the agency had created an improper competitive level. The administrative judge reversed the agency action on this basis and the agency appealed to the full Board Since the parties had stipulated to the bona fides of the reduction in force and the appropriateness of the competitive area, the Board focused on the establishment of the appellant's competitive level. Prior to the reduction in force actions, the agency reorganized the competitive area where the appellant worked and streamlined 12 positions to eight. Two of the positions retained their previous structure but the remaining six were redesigned as multifunctional team leader positions. Based on the record evidence, the Board found that the agency erroneously disregarded the nine competitive levels that the 12 employees occupied when it determined assignment rights. The agency basically put all the employees into one competitive level for the purposes of assignment to the six new positions and the two remaining positions. However, the Board noted its longstanding case law that a reduction in force action will not be reversed based on an erroneous application of the regulations unless an employee's substantive rights have been impaired by the error (See Hill v. Commerce, 25 MSPR 205 (1984)). So the Board reviewed the proper assignment rights of the 12 employees in the appellant's organization and found that at least eight other released employees had greater assignment rights than the appellant. Therefore, despite the agency's error, the appellant was not harmed by it. Therefore, the Board reversed the administrative judge's decision and sustained the agency's demotion action. 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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