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 Number 124 June 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. COURT DECISIONS INFORMATION ... PARTICULARIZED NEED. In two decisions, the DC Circuit Court of Appeals affirms the Authority's decisions in 52 FLRA Nos. 115 and 121 in which the Authority determined, among other things, whether the unions' requests for information under section 7114(b)(B) met the court-established "particularized need" test. American Federation of Government Employees, Local 2343 v. Federal Labor Relations Authority, No.97-1355 (DC Cir. May 29, 1998);Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority No.97-1388 (DC Cir. May 29, 1998). JOB OPPORTUNITY ... MILITARY SERVICE. In accordance with Title 38 U.S.C section 4301 (b)(3), Federal employees serving in military duty have a right to be informed of newly created vacancies and must be given the opportunity to apply for those vacancies. Kenneth M. Allen v. United States Postal Service, No. 97-3319 (Fed. Cir. May 4, 1998). WHISTLEBLOWING ... DEFINITION OF A PERSONNEL ACTION. A progress report is not a formal performance evaluation and therefore is not a personnel action within the meaning of the Whistleblower Protection Act. Marcia R. King v. Department of Health and Human Services, No. 97-3397 (Fed. Cir. January 12, 1998). FLRA DECISIONS EXECUTIVE ORDER 12871 ... BARGAINING ON 7106(b)(1)MATTERS ... USING TERM APPOINTMENTS TO FILL UNIT POSITIONS. In a split decision, Member Wasserman dissenting, the Authority finds that section 2(d) of Executive Order 12871 (Order) does not constitute an election to bargain over section 7106 (b)(1) subjects. In reaching this decision, the majority considered, among other things, the actual language of sections 2(d) and 3 of the Order, as well as the context and the purpose of the Order. Consequently the agency did not commit an unfair labor practice (ULP) when it refused to bargain on its decision to use term appointments to fill bargaining unit positions (which FLRA had earlier held, in 52 FLRA No. 106, is a decision dealing with a (b)(1) matter). FLRA said that "[q]uestions concerning the respondent's compliance with the Executive Order, consistent with section 3, are properly resolved as a matter involving the internal management of the Executive branch." MANDATORY VERSUS PERMISSIVE SUBJECT OF BARGAINING ... RIGHT TO SELECT ... EXPANDING SELECTION POOL. The Authority, in order to avoid the anomaly of finding a mandatory subject of bargaining to be a matter on which management can elect to bargain, creates an exception to the procedural rule it established in VA, Lexington, 51 FLRA No.36. (Under Lexington FLRA considers claims that a proposal deals with a section 7106 (b)(1) permissive matter before it examines claims that the proposal interferes with section 7106(a) management's rights.) FLRA announced there where a union claims that its proposal not only is a section 7106 (b)(1) matter but also that it does not interfere with any section 7106 (a) management right, FLRA will reverse the Lexington procedure and first determine whether section 7106(a) is violated. In applying this (a)-before-(b) procedure, FLRA found that a proposal expanding the applicant pool is a mandatorily negotiable matter. Although proposals limiting an agency's selection options interfere with the right to select, proposals expanding the applicant pool do not. American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and Department of Housing and Urban Development,0-NG-2350, May 11, 1998, 54 FLRA No. 22. RIGHT TO SELECT v. METHODS AND MEANS. An arbitral remedy that interferes with the right to select cannot be sustained where the violated contract provision does not deal with a section 7106(b) matter. Here, the union never claimed that the provision (which required that the selection of employees from transfer registers not be arbitrary or based on unreasonable considerations) was a section 7106(b)(2) procedure or a section 7106(b)(3) appropriate arrangement. It instead claimed that the contract provision dealt with an enforceable methods and means matter under section 7106(b)(1). The Authority, finding no connection between the provision and the methods and means portion of section 7106(b)(1), set aside the award because it interfered with the right to make selections from any appropriate source. National Labor Relations Board and National Labor Relations Board Union,0-AR-2866, April 23, 1998, 54 FLRA No. 7. MSPB DECISIONS INTERIM RELIEF. When interim relief is ordered, an agency's failure to timely (a period of four months) pay the appellant is not a minor matter and cannot be excused, particularly when there was no indication that the agency took any action to correct its initial error even after the appellant gave notice to the agency that he had not been paid. Andrew P. Moore, II v. United States Postal Service,AT0752960884-I-1, March 24, 1998. PROBATIONARY PERIOD. Actions taken during the probationary period that are based on failure to pass a physical examination do not trigger the pre-employment procedural requirements of 6 CFR section 315.805. Lillie Butler v. Defense Commissary Agency,AT315H970365-I-1, March 9, 1998. 52 FLRA Nos. 115 and 121 American Federation of Government Employees, Local 2343 v. Federal Labor Relations Authority, No. 97-1355 (DC Cir, May 29, 1998); Department of Justice, Immigration and Naturalization Service v. Federal Labor Relations Authority, No. 97-1388 (DC Cir. May 29, 1998). Holdings In two decisions, the DC Circuit Court of Appeals affirms the Authority's decisions in 52 FLRA Nos. 115 and 121 in which the Authority determined whether the unions' requests for information under section 7114(b)(4)(B) met the court-established "particularized need" test. Summaries 52 FLRA No. 115. In this case, involving a penitentiary disturbance caused by an inmate, the Authority held that the agency did not commit an unfair labor practice (ULP) when it failed to provide the union with information concerning an investigation of a bargaining unit employee by the agency's Office of Internal Affairs (OIA). In explaining why it needed the information developed by the OIA's investigation of a correctional officer accused of having physically abused the inmate, the union said it needed it to prepare for arbitration of a previously filed grievance. After determining that the grievance dealt with a health and safety issue and rejecting the union's claim that it also dealt with placing an officer on home duty, FLRA found that the union failed to articulate the connection between the information it wanted and grieving the health and safety issue. It is therefore dismissed the ULP complaint. On appeal, the court affirmed the Authority's decision. The court conceded that "[t]here may well be cases where the connection between the information a union seeks and the grievance is so clear that the union's need is self-evident." But under the circumstances of this case, the union's need for the requested documents wasn't self-evident. The court said the following: The Authority requires unions to articulate particularized need to ensure that in cases like this, where the documents sought are not obviously relevant to the subject of the grievance, the employer has sufficient information about exactly why the union needs the information in order to weigh the union's interest against and countervailing interest the employer might have in privacy and non-disclosure. The court rejected the union's claim that particularized need is automatically established where the requested documents discuss a specific incident about which the union has filed a grievance. Not only does nothing in the NLRB [v. FLRA, 952 F.2d 523] hold that the existence of a grievance always suffices to establish particularized need, but in subsequent decisions, both this court and the Authority required unions to "articulate" particularized need...The articulation requirement gives content to the "particularized" part of the test by requiring not just that there be a need--a standard that unions probably could meet whenever seeking information in connection with a grievance--but also that unions explain with some specificity why they need the information. Although the court shared the union's concern that FLRA's application of the particularized need test could require it to predict the contents of documents to which it hasn't yet had access, it said that in the case at bar knowledge of the contents of the requested documents wasn't needed to establish particularized need. "We recognize that the particularized need test asks unions to walk a fine line between saying too little and saying too much. While we emphasize here that the Authority must not require unions to say too much, we conclude that the Authority committed no error by finding that, in this case, the Union said too little." 52 FLRA No.121 When the agency, as the result of an investigation of allegations of theft, falsification, and conduct unbecoming an officer, notified an employee of its intent to remove him from his position as a Border Patrol agent, the employee asked the union to represent him. When the union, in order to properly respond to the allegations at the oral reply stage, asked for the entire investigatory file, as well as all proposal and decision notices for all similar disciplinary and/or adverse action cases within the agency's Northern Region in the past five years, the agency gave the union a copy of the investigatory report, but nothing more. A ULP charge followed and the Authority found that the union had established particularized need for the disciplinary records. These records were needed in order to compare the proposed discipline with that of other employees committing similar offenses. Given that the agency didn't demonstrate any countervailing anti-disclosure interests (the union had agreed to take the disciplinary records in sanitized form), FLRA concluded that the agency had committed an unfair labor practice. When the agency's request for reconsideration was denied, it filed a court appeal. The court rejected the agency's argument that a union doesn't act in its capacity as an "exclusive representative" when it represents an employee during the proposal stage because at the stage the employee can choose not to be represented by the union and the union can decline an employee's request for representation at the oral reply stage. Nothing in [the section 7103(a)(16)] definition [of "exclusive representative"], section 7114 (b)(4), or any other part of the statute strips a union of exclusive representative status, once so designated, when it chooses to represent an employee at the oral reply stage. In fact, representing an employee at an oral reply falls comfortably within an exclusive representative's broad section 7114 (a)(1) power "to act for...all employees in the unit"...To be sure, exclusive representatives may decline employees' requests for representation at the oral reply stage...But as the Authority points out, [this possibility has] nothing at all to do with the authority unions possess when they do in fact represent employees at oral replies...[U]nion seeks to vindicate not just employees' individual interests at the oral reply,...but also the bargaining agreement. By obtaining related disciplinary records at the oral reply stage, for example, the union might convince the agency to reduce the proposed punishment, thus possibly avoiding a grievance and promoting the bargaining unit's interest in expeditious resolution of labor disputes. The court then turned to the issue of whether the disciplinary records were "necessary" at the oral reply stage.
The oral reply is not limited to whether the employee committed the alleged offense. As this case demonstrates...the oral reply also encompasses the appropriate punishment. In fact, for employees who admit they committed the alleged offense but believe the proposed punishment does not fit the crime, evidence of disparate treatment constitutes their only available defense. Information about how an agency disciplines other employees is thus "necessary" as the oral reply stage. The court accordingly denied the agency's petition for review. JOB OPPORTUNITY ... MILITARY SERVICE Kenneth M. Allen v. United States Postal Service,U.S. Court of Appeals for the Federal Circuit, Appeal No. 97-3319 (Fed. Cir. May 4, 1998). Holding In accordance with Title 38 U.S.C. section 4301(b)(3), Federal employees service in military duty have a right to be informed of newly created vacancies and must be given the opportunity to apply for those vacancies. Summary A job opportunity arose during the appellant's absence for military service. The appellant did not learn of the new position until his return to his civilian position. By then the new position had been filled and his assertion of a senior right to the position was rejected by the Postal Service. On appeal, the Board's administrative judge upheld the agency's action. In his petition for review of the administrative judge's decision to the full Board, the appellant argued that under Title 38 U.S.C. section 4301 (b)(3) the Postal Service should have informed him of the new position while he was on military duty because Title 38 requires that persons on military service are not to be disadvantaged because of the service. Without reference to the applicable statues, the Board held that the Postal Service must treat employees on military duty as if they were on furlough or leave of absence, and concluded that since the Postal Service is not required to notify employees who are on furlough or leave of absence of a new employment opportunities, no such requirement applies to employees on military service. The employee appealed the Board decision to the Court of Appeals for the Federal Circuit. The issue before the Federal Circuit was whether the Postal Service had a duty to inform the appellants of this position or otherwise to enable the appellant to compete for the appointment. Previous court decisions set out a three part analysis of Title 38 U.S.C. section 4301 (b)(3). First, it must be determined whether the "incident or advantage" provided for in the law is one generally granted court must consider whether the person absent on military duty was treated the same way as if the person had remained at work. Previous rulings recognize that, although for some statutory purposes persons returning from military duty correctly are treated as if they had been on furlough or leave of absence, under section 4301 (b)(3) they must not be disadvantaged by failure to treat them as if they had been present at work. Third, it is important to consider whether there was reasonable certainty that the benefit would accrued to the employee but for the military service absence. With this guidance, the Federal Circuit concluded that in this case, the new position was made available and filled while the appellant was on military duty. The appellant's qualifications were senior to those of the person placed in the position and it was not disrupted that in view of the appellant's seniority and the collective bargaining agreement, he would have gained the position had he applied for it while on military duty. Further, the record provided evidence that but for his military duty, the appellant would have known of the vacancy, requested, and received the job. Accordingly, the court held, in accordance with Title 38 U.S.C. section 4301 (b)(3), the right to bid for and receive the newly-created day shift position was a protected "incident or advantage of employment," and was required to be made available to the appellant. The denial of this opportunity occurred solely because of the appellant's tour of military duty, thus the procedures followed were contrary to law. The Federal Circuit reversed the Board's decision and remanded the case for appropriate further proceedings. WHISTLEBLOWING ... DEFINITION OF A PERSONNEL ACTION Marcia R. King v. Department of Health and Human Services, No.97-33979(Fed. Cir. January 12, 1998) Holding A progress report is not a formal performance evaluation, and therefore not a personnel action with the meaning of the Whistleblower Protection Act. Summary The appellant and four of her coworkers complained in writing to a senior agency official about the "inhumane" way appellant's supervisor treated employees. Subsequently, the supervisor gave appellant a progress review as required under the office's policy, and the review was memorialized on the customary agency form, containing the supervisor's "Progress Review Comments," which the appellant signed. The appellant then filed a complaint with the Office of Special Counsel (OSC), claiming that the progress review constituted retaliation against her for her whistleblowing. When the OSC notified the appellant that it had terminated its investigation into her case, she filed an individual right of action (IRA) with the Board. The AJ dismissed the case for lack of jurisdiction, finding that a progress review was not the same thing as a performance evaluation under OPM's regulations, and was not a personnel action. When the Board denied the appellant's petition for review, she filed this appeal with the Federal Circuit, which affirmed the AJ's decision. Comment It is well established that a performance evaluation is a personnel action for purposes of the Whistleblower Protection Act. However, as this case illustrates, instances of performance feedback provided during the rating cycle are not legally equivalent to the official evaluation which statue directs agencies to prepare when an employee has completed the designated appraisal period. 54 FLRA No. 43 Department of Commerce, Patent and Trademark Office and Patent Office Professional Association, WA-CA40743, June 19, 1998, 54 FLRA No.43 Holding In a split decision, with Member Wasserman dissenting, the Authority finds that section 2(d) of Executive Order 12871 does not constitute an election to bargain over section 7106 (b)(1) subjects. In reaching this decision, the majority considered, among other things, the actual language of sections 2(d) and 3 of Executive Order 12871 (Order), as well as the context and purpose of the Order. Consequently the agency did not commit an unfair labor practice (ULP) when it refused to bargain on its decision to use term appointments to fill bargaining unit positions (which FLRA had earlier held, in 52 FLRA No. 106, is a decision dealing with a (b)(1) matter). FLRA said that "[q]uestions concerning the Respondent's compliance with the Executive Order, consistent with section 3, are properly resolved as a matter involving the internal management of the Executive branch." In his dissent, Member Wasserman focused on the political context of the Order, rather than its precise language. Relying on newspaper articles, he stated, among other things, that "[i]t is commonly understood that the federal unions struck an agreement with the administration to receive expanded bargaining rights in exchange for their cooperation in the National Performance Review." He also accused OPM of back-peddling when, in its amicus brief, it viewed the Order as a directive rather than an election. Summary In its earlier decision in 53 FLRA No. 70, reported in Significant Cases No. 121, the Authority issued a partial decision in which it had held that the agency's decision to use term employees to fill bargaining unit vacancies concerned a section 7106(b)(1) matter. It also had found that the agency committed a ULP when it did not afford the union an opportunity to bargain over the impact and implementation (I&I) of its decision. It did not, however, pass on the fundamental issue of "whether section 2(d) of Executive Order 12871 constitutes an agency election to bargain on section 7106(b)(1) matters, and whether such an election can be enforced in Authority unfair labor practice and subsequent court review proceedings." It instead directed the parties (and invited amicus briefs) to respond to certain questions related to that issue. The Authority, in a split decision, has now decided that issue by holding that the Order's section 2(d) directive to bargain on section 7106(b)(1) matters is not an election to negotiate on such matters. Actual wording of section 2(d). FLRA noted that nothing in the Order expressly states that the President is making an "election" within the meaning of 5 U.S.C. section 7106(b)(1). Although the General Counsel asserted that the term "shall" in section 2 of the Order should be construed as an "election under the Statute," FLRA said that such a position is essentially a claim that "the words in Section 2(d) have a meaning beyond their plain terms." Moreover, "by instructing agency heads and subordinates to bargain over 5 U.S.C. section 7106(b)(1) subjects, Section 2(d) clearly anticipates that agency heads and subordinates will elect to bargain. However, directing another to undertake an action is not necessarily the same as undertaking the act itself." FLRA went on to distinguish between a mandate to bargain on section 7106(b)(1) matters and a statutory election to bargain on such matters. Not every order from a superior to a subordinate amounts to a requirement that is enforceable by administrative agencies and/or the courts. Section 2(d) can be mandatory in nature without constituting a Statutory election that is enforceable in unfair labor practice proceedings. Purpose of the Order and the context of section 2. FLRA then turned to the purpose of the Order--i.e., "to facilitate the formation of labor-management partnerships in order to implement the Government reform objectives of the National Performance Review"--and the context of the actions directed by section 2 of the Order. In addition to the section 2(d) directive to bargain on section 7106(b)(1) matters, FLRA noted that section 2 of the Order also directed the creation of labor-management partnerships, the involvement of employees and unions in identifying problems and crafting solutions, the providing of training in alternative dispute resolution, and the evaluation of agency performance improvements resulting from partnerships. [E]ach of the . . . actions directed in Section 2 of the Executive Order are indisputably outside the framework of legal rights and obligations defined in the Statute. Therefore, the context in which the command in Section 2(d) appears does not indicate that it is intended to effect an action under the Statute. Section 3 of the Order. The majority also argued that its interpretation of section 2(d) also is consistent with the plain wording of section 3 of the Order. Any uncertainty about whether Section 2(d) of the Executive Order is properly construed as taking an action that triggers the enforcement mechanisms in the Statute is resolved, in our view, by the unambiguous terms of Section 3. This section states clearly that the Executive Order is "intended only to improve the internal management of the executive branch." . . . Dispelling any doubt, this exclusive intent is underscored by the further statement in Section 3 that the Executive Order is "not intended to, and does not, create any right" to "administrative or judicial review, or any other right enforceable by a party . . . ." [Emphasis by FLRA.] OPM Guidance. FLRA questioned the probative value of the OPM Guidance of December 16, 1993. It was issued over 2 months after the Order (and therefore cannot be regarded as comparable to legislative history) and the authority delegated to OPM by section 1 of the Order "does not expressly extend to interpreting the terms of the Executive Order itself." But even if FLRA were to regard the OPM Guidance as reliable evidence of the President's intent, the Authority wasn't persuaded that section 2(d) constituted an election to bargain. The General Counsel had focused on the Guidance's stating that bargaining on section 7106(b)(1) "is now mandatory," and it's statement that the parties could present an impasse to the Impasses Panel. Neither of these statements establish that Section 2(d) . . . should be construed, contrary to its text and context and the unambiguous limitation in Section 3, to constitute an election under the Statute. Neither statement refers to an "election," and neither refers to action taken by the President on behalf of agency managers. Moreover, both of the statements relied by the General Counsel are at least as consistent with finding that the Executive Order is an internal management instruction to agency heads, as they are with finding that it effects an election under the Statute that is enforceable in unfair labor practice proceedings. Moreover, there were other statements in the Guidance that indicated that OPM did not regard the Order as creating obligations enforceable under ULP proceedings. For example, it directed the use of interest-based bargaining in negotiating over section 7106(b)(1) matters and stated that proposals were to be evaluated in terms of the extent to which they improved productivity, streamlined operations, reduced over control and micro management, and made Government capable of delivering the highest quality services to the American people. These statements went beyond the requirements of the Federal Service Labor-Management Relations Statute. Making the Order "meaningful." FLRA questioned the claim that the Order would be meaningless if FLRA did not find that the President made a statutory election to bargaining over section 7106(b)(1) matters. It pointed out that, according to National Partnership Council reports to the President, "the issues being handled by partnerships include subjects arguably within the ambit of section 7106(b)(1)[,]" and that there has been significant progress toward realizing the ambitious goals of the Order. "Thus," said FLRA, "there is considerable basis for viewing the Executive Order as, indeed, meaningful even in the absence of statutory enforcement of the bargaining direction in Section 2(d)." Dissent. In his dissent, Member Wasserman focused on the political context of the Order, rather than its precise language. Relying on newspaper articles, he stated, among other things, that "[i]t is commonly understood that the federal unions struck an agreement with the administration to receive expanded bargaining rights in exchange for their cooperation in the National Performance Review." "We cannot ignore," he continued, "the quid pro quo aspect of the Executive Order, and the obvious intent of the President in issuing the Order. . . . In light of the President's intention to downsize the federal government by over a quarter of a million employees, the need for consensus with the unions was indeed important." He also accused OPM of back-peddling when, in its amicus brief, it viewed the Order as a directive rather than an election. Nor was he troubled by section 3 of the Order: "The effect of Section 3 is to prevent individuals or parties from enforcing the Order in court or in arbitration." Comment On the same day that the Authority's decision in 54 FLRA No. 43 was issued, it also decided three other cases involving the same issue of whether the President, by means of section 2(d) of Executive Order 12871, exercised the affected agency's discretion to elect to bargain on section 7106(b)(1) matters. In all three cases the Authority dismissed the refusal-to-bargain ULPs against the agencies. Those cases are as follows: 54 FLRA No. 44, Department of Veterans Affairs Medical Center, Lexington, Kentucky and National Association of Government Employees, CH-CA-50399 (having lab technicians perform certain dental assistant duties); 54 FLRA No 45, Social Security Administration, Santa Rosa District Office, Santa Rosa, California and American Federation of Government Employees Council 147, AFL-CIO, SF-CA-50155 (moving an employee from one organizational subdivision of the agency to another); and 54 FLRA No. 46, Department of the Air Force, 647th Air Base Group, Hanscom Air Force Base, Massachusetts and National Association of Government Employees, SEIU, AFL-CIO, Local R1-8, BN-CA-41011 (implementing decision to fill several vacant positions without providing the union an opportunity to negotiate over the decision). It is too soon to know whether any of the unions involved in the above cases will be seeking court review. Meanwhile, it should be emphasized that, notwithstanding the fact that there is no statutory duty to bargain on section 7106(b)(1) matters, the President has directed agencies to bargain on such matters. As the Authority noted, "[q]uestions concerning the Respondent's compliance with the Executive Order, consistent with Section 3, are properly resolved as a matter involving the internal management of the Executive Branch." Apart from measures designed to ensure compliance with the President's directive, it can be argued that the Authority's decision, in removing the risk of Authority-imposed settlements, has given agencies incentives to experiment with section 7106(b)(1) matters relating to the improvement of agency performance. In this connection, it could be argued that discussions on ways to improve agency performance are necessarily going to involve discussions of staffing patterns, technology, work processes, and whatever else is meant by "methods and means of performing work." Bargaining on section 7106(b)(1) matters is, in short, integral to finding ways to improve agency performance which, after all, is the main purpose of the Order's labor relations implementation of the goals of the National Performance Review. Hence, it is not surprising that the President, in section 2(d), directs heads of agencies to bargain on section 7106(b)(1) matters and to direct subordinates to do so. 54 FLRA No. 22 American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and Department of Housing and Urban Development, 0-NG-2350, May 11, 1998, 54 FLRA No.22. Holding The Authority, in order to avoid the anomaly of finding a mandatory subject of bargaining to be a matter on which management can elect to bargain, creates an exception to the procedural rule it established in VA, Lexington, 51 FLRA No. 36. (Under Lexington, FLRA considers claims that a proposal deals with a section 7106(b)(1) permissive matter before it examines claims that the proposal interferes with section 7106(a) management's rights.) FLRA announces that where a union claims that its proposal not only is a section 7106(b)(1) matter but also that it does not interfere with any section 7106(a) management right, FLRA will reverse the Lexington procedure and first determine whether section 7106(a) is violated. In applying this (a)-before-(b) procedure, FLRA found that a proposal expanding the applicant pool is a mandatorily negotiable matter. Although proposals limiting an agency's selection options interfere with the right to select, proposals expanding the applicant pool do not. American Federation of Government Employees, HUD Council of Locals 222, Local 2910 and Department of Housing and Urban Development, 0-NG-2350, May 11, 1998, 54 FLRA No. 22. Summary When the agency notified the union that, as a result of headquarters' downsizing, it intended to make available certain vacant positions in its field offices only to headquarters' employees, the union, during the course of impact and implementation (I&I) bargaining, proposed that field office employees also be permitted to apply for the vacant positions. Management argued, among other things, that the proposal interfered with its right to make selections and did not constitute a section 7106(b)(2) procedure or a section 7106(b)(3) appropriate arrangement. The union disagreed, claiming that the proposal didn't interfere with management's section 7106(a)(2)(C) right to make selections and, moreover, was a section 7106(b)(1) matter involving the assignment of positions to organizational subdivisions. The Authority noted that under the procedure it adopted in DVA, Lexington, 51 FLRA No. 36, regarding management claims that a proposal violates management's section 7106(a) rights and union claims that the proposal deals with section 7106(b)(1) matters, FLRA would first address the (b)(1) claim. If it concluded that the proposal dealt with a (b)(1) matter, that would end the matter. If, on the other hand, it found that the proposal did not deal with a (b)(1) matter, FLRA would then address the (a) contention. It also noted that were it to apply the Lexington approach to the case at bar, FLRA could end up finding a proposal on which management had duty to bargain to be a proposal on which it could elect or not elect to bargain. In order to avoid such an anomaly, FLRA said that it would take up the section 7106(a) issue before addressing the section 7106(b)(1) claim where a union disputes an agency's claim that the proposal deals with a section 7106(a) matter. If it found no interference with management's section 7106(a) rights, it would direct the agency to bargain on the matter without bothering to address the (b)(1) issue. If, on the other hand, it found that there was interference, it would then address the (b)(1) contention--i.e., determine whether the proposal was an exception to the rights reserved to management. (In a footnote FLRA indicated that it would use the above sequence where a union asserts "that a proposal is within the duty to bargain under section 7106(b)(2) and/or (b)(3).") Turning to the agency's claim that the proposal interferes with management's right to select, which includes the right to select from any source, FLRA found no interference and thus found it unnecessary to address the union's (b)(1) claim. Although proposals limiting management's selection options would interfere with the right to select, proposals that expanded the applicant pool would not. It accordingly directed the agency, upon request and absent agreement with the union, to bargain on the proposal. Comment Disputes involving section 7106 continue to become increasingly convoluted, mainly because of the section 7106(b) exceptions to section 7106(a) rights. At any rate, let us summarize the procedures that FLRA uses where there are claims that a proposal is a section 7106(b) exception to section 7106(a) management rights. (b)(1) exception: the Lexington approach. When the union, in response to a management claim that the proposal interferes with one or more of management's rights, doesn't contest the claim but instead argues that the proposal is a (b)(1) exception to the (a) rights, FLRA first addresses the (b)(1) contention. If it finds that the proposal is a (b)(1) matter, it holds that the proposal is an elective subject and dismisses the petition. (It can't order bargaining on a permissive subject.) If it isn't a (b)(1) matter, it addresses the (a) argument. (b)(1) exception: the HUD approach. When the union disputes the agency's claim that the proposal deals with an (a) matter and also claims that the proposal deals with a (b)(1) matter, FLRA will first address the (a) argument. If it finds no interference, it holds that there is a duty to bargain on the proposal (i.e., that it is a mandatory subject of bargaining) and issues a bargaining order. Such a finding obviates any need to address the union's (b)(1) claim. If, however, it concludes that there is interference with (a), it next addresses the (b)(1) claims. (Where applicable, it would address any (b)(2) or (b)(3) claims.) (b)(2) exception: procedures. Although section 7106(b)(2) procedures have been characterized as an exception to management's section 7106(a) rights, they really aren't an exception. To constitute a (b)(2) procedure, the proposal cannot interfere with management's section 7106(a) rights. (b)(3) exception: appropriate arrangements. Where the union claims that its proposal constitutes a (b)(3) appropriate arrangement exception to management's section 7106(a) rights, FLRA first determines whether the proposal is "tailored" to benefit only adversely affected employees. If it is and if it also "affects" (i.e., interferes with) management's section 7106(a) rights, the Authority applies an "excessive interference" balancing test to determine whether the proposal is a mandatory subject of bargaining. 54 FLRA No. 7 National Labor Relations Board and National Labor Relations Board Union, 0-AR-2866, April 23, 1998, 54 FLRA No. 7 Holding An arbitral remedy that interferes with the right to select cannot be sustained where the violated contract provision does not deal with a section 7106(b) matter. Here, the union never claimed that the provision (which required that the selection of employees from transfer registers not be arbitrary or based on unreasonable considerations) was a section 7106(b)(2) procedure or a section 7106(b)(3) appropriate arrangement. It instead claimed that the contract provision dealt with an enforceable methods and means matter under section 7106(b)(1). The Authority, finding no connection between the provision and the methods and means portion of section 7106(b)(1), set aside the award because it interfered with management's section 7106(a)(2)(C) right to make selections from any appropriate source. Summary The arbitrator, after finding that the agency violated the contract when it decided to hire a recent law school graduate rather than to transfer the grievant into the vacant position, directed NLRB to offer the grievant the next available vacancy in the D.C. area for which grievant was qualified. Since that remedy interferes with the section 7106(a)(2)(C) right to make selections from any appropriate source, it can be sustained only if, among other things, the contract provision being enforced deals with a 7106(b) matter. (Section 7106(b) matters, such as (b)(1) staffing patterns and methods and means, (b)(2) procedures, and (b)(3) appropriate arrangements, are exceptions to the rights reserved to management by section 7106(a).) Here, there was no claim that the provision was either a (b)(2) procedure or a (b)(3) appropriate arrangement within the meaning of (b)(3). It was instead a claim that the violated contractual requirement dealt with (b)(1) methods and means. FLRA noted that it has defined methods and means to refer to the way in which the agency performs its work. The contract stated that NLRB decisions to select employees from transfer registers would not be based on arbitrary or unreasonable considerations. "No connection," says FLRA, "has been established or is apparent between the [contract] provision, encompassing requirements governing decisions on transfer, and the way the Agency performs its work." In a separate concurring opinion, Member Wasserman said that were it not for the union's express disavowal that the contract provision is a (b)(3) appropriate arrangement, he would have enforced the award. But since the union put all its eggs in the (b)(1) methods-or-means basket, and since the contractual "arrangement" could not be regarded as a methods or means, he agreed that the award had to be set aside on the ground that it impermissibly interfered with the section 7106(a)(2)(C) right to make selections from appropriate sources. Comments In Department of the Treasury v. Federal Labor Relations Authority, 494 U.S. 922 (1990), the Supreme Court held that only those limitations on management's section 7106(a)(2) rights that are contained in "applicable laws" can be enforced by the union under the negotiated grievance procedure. Following up on this, the Authority, in Bureau of Engraving and Printing, 53 FLRA No. 21, said that "an arbitration award that affects management rights under section 7106(a)(2) may provide a remedy only for a violation of either applicable law, within the meaning of section 7106(a)(2), or a contract provision that was negotiated pursuant to the exceptions to section 7106(a) that are set forth in section 7106(b)." (Bold added.) In the case at bar, the arbitrator found a violation of a contract provision, not of an "applicable law." However, the union, instead of stating that the violated provision dealing with selections from transfer registers was a section 7106(b)(3) appropriate arrangement, took the position that it was a section 7106(b)(1) methods and means. This case illustrates a need to better appreciate the conditions that must be met for an arbitration award remedy affecting management's rights to be valid. It must be based either on violations of laws or regulations that constitute "applicable law" within the meaning of section 7106(a)(2) or on violations of contract provisions that are matters falling under any of the section 7106(b) exceptions to management's section 7106(a) rights. For a detailed discussion of "applicable law," see 42 FLRA Nos. 31 and 32, reported in Significant Cases No. 88. INTERIM RELIEF Andrew P. Moore, II v. United States Postal Service,AT0752960884-I-1, March 24, 1998. Holding When interim relief is ordered, an agency's failure to timely pay the appellant for a period of four months is not a minor matter and cannot be excused. In this case, there was no indication that the agency took any action to correct its initial error in failing to put the appellant in pay status even after the appellant gave notice to the agency that he had not been paid. Summary The appellant was removed for failure to cooperate during a fitness-for-duty examination. The administrative judge, finding that the agency failed to follow regulations when ordering a fitness-for-duty examination, reversed the removal and ordered interim relief, if a petition for review was filed. The agency filed its petition for review and, as proof of interim relief, included its notice to the appellant that he should not return to duty and that he was being placed on administrative leave, effective the date of the initial decision. The appellant argued that the agency had not complied with the interim relief order because he had not received any pay or compensation. The agency responded that its memorandum to the section chief, which ordered that the appellant be placed on administrative leave, was inadvertently not provided to the payroll office. The agency indicated, however, that it had issued a check to the appellant to cover the period in question and that it had informed the payroll office to place the appellant on administrative leave effective to the date of the initial decision. The appellant argued that the amount of the check was not correct (Federal tax deductions were at a higher rate than usual) and that he suffered financial and emotional hardship as a result of the agency's failure to act in a timely manner. Citing Salazar v. Transportation, 60 M.S.P.R. 633 (1994), the Merit Systems Protection Board (Board) noted that although the agency is not required to have actually paid the appellant by the deadline for filing a petition for review, it must take appropriate administrative action by the deadline that will result in the issuance of a paycheck for the interim relief period. Additionally, an agency's inadvertent, minor mistake in complying with interim relief can be excused if promptly corrected (Woodford v. Army,5 M.S.P.R. 350 (1997)). In the case at hand, however, the Board determined that the agency did not examine the appellant's claim that he had not been paid until it was compelled to respond to the Board's order (about four months later). The Board held that there was no indication that the agency took any action to correct its initial error in failing to put the appellant in pay status even after he clearly gave the agency notice that he had not received any money. The Board found that the agency's failure to timely pay the appellant for a period of four months was not a minor matter and could not be excused. Thus, the Board dismissed the agency's petition for review. Comment Citing Woodford, the Board has reinforced its holding that inadvertent, minor errors in complying with an interim relief order, can be excused if promptly corrected. This case provides some guidance on the time frame for making corrections. Clearly, four months is outside the scope of what the Board will consider timely, especially when the appellant has made the agency aware that no compensation has been received. PROBATIONARY PERIOD Lillie Butler v. Defense Commissary Agency,AT315H970365-I-1, March 9, 1998. Holding Actions taken during the probationary period that are based on failure to pass a physical examination do not trigger the pre-employment procedural requirements of 5 CFR section 315.805. Summary Pending satisfactory completion of a physical examination, the employee was offered a competitive service appointment that was subject to a one-year probationary period. About two months later, a doctor performed the employee's physical examination and concluded that the employee could not conform to the requirements necessary for the position. The agency therefore removed the employee for inability to perform the required full range of duties. Due to the employee's probationary status, the agency issued her a notice of appeal rights which included the right to appeal based on marital status or political affiliation. In an initial decision, the administrative judge found that the employee was removed during her probationary period for pre-employment reasons because the agency characterized the physical examination as a pre-employment physical. The administrative judge also found that the agency committed harmful error by failing to afford her procedural rights under 5 CFR section 315.806(c). Therefore, the administrative judge reversed the agency's removal decision. The full Merit Systems Protection Board (Board) disagreed with the administrative judge's finding that the employee was entitled to a notice of the proposed action with a right to respond under 5 CFR sections 315.805-806, and with his finding of harmful error by the agency. The Board held that even though the agency referred to the physical examination as a pre-employment examination, it was, in fact, a post-employment examination. The Board also noted that even if this were the case, according to Pierce v. Government Printing Office, 70 F.3d 106, 108 (Fed. Cir. 1995), the Federal Circuit held that pre-employment reasons for termination do not include pre-employment physical conditions. In addition, the Board explained that physical conditions which predate employment, and which result in performance deficiencies, are excluded from probationary period procedural requirements that normally apply to actions taken for pre-appointment reasons. Furthermore, the Board stated that even if it were to conclude that the employee was terminated for a pre-appointment reason, harmful error could not be presumed from the agency's failure to adhere to the procedural requirements. Accordingly, the full Board reversed the initial decision and sustained the agency's action.
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