U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Number 139                    February 2001

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
		RETALIATION FOR LAWFUL PICKETING ... LACK OF JURISDICTION
		REMOVAL FOR MISCONDUCT ... OFF-DUTY MISCONDUCT
		WHISTLEBLOWING ... JURISDICTION ... SECURITY CLEARANCES
	FLRA DECISIONS
		ATTORNEY FEES ... PREVAILING ON TECHNICAL, NOT SUBSTANTIVE GROUNDS
		PRIORITY CONSIDERATION ... FAULTY USE OF EVIDENCE IN ASSESSING QUALIFICATIONS ... RIGHT TO SELECT
		BREACH OF SETTLEMENT AGREEMENT
		FILLING POSITIONS ... COMPETITIVE PROCEDURES
	MSPB DECISIONS
		DISABILITY RETIREMENT ... OWCP
		WHISTLEBLOWING ... JURISDICTION

RETALIATION FOR LAWFUL PICKETING ... LACK OF JURISDICTION .   The First Circuit--relying on the express language of the Technicians Act, its legislative history, and other court decisions--affirmed the Authority's holding in 56 FLRA No. 21 that the Technicians Act (32 U.S.C. § 709) precludes FLRA from reviewing the employer's retaliatory termination of the employee who was the union president. "Because the Technicians Act deprived the Authority of jurisdiction, it could not review Romero's termination, despite the Guard's patent and egregious violations of the Labor-Management Act. We agree with the Authority that this result is unfortunate. As the Authority stated in its majority opinion, however, we cannot rewrite the statute[.]" American Federation of Government Employees, Local 3936, AFL-CIO v. Federal Labor Relations Authority, No. 00-1417 (1st Cir. February 6, 2001).

REMOVAL FOR MISCONDUCT ... OFF-DUTY MISCONDUCT.  The Federal Circuit finds nexus sufficient to support removal where an employee responsible for base morale engages in an extra-marital off-duty affair with the wife of a deployed serviceman. Brown v. Department of Navy, No.00-3003 (Fed. Cir. Oct. 20, 2000)

WHISTLEBLOWING ... JURISDICTION ... SECURITY CLEARANCES.   The Federal Circuit holds that the Merit Systems Protection Board lacks jurisdiction to review an agency's security clearance determination even though an employee claims the determination constitutes whistleblower retaliation. Hesse v. State, No. 99-3387 (Fed. Cir., July 6, 2000).

ATTORNEY FEES ... PREVAILING ON TECHNICAL, NOT SUBSTANTIVE GROUNDS.   FLRA upheld an arbitrator's determination that, notwithstanding his having mitigated a 14-day suspension to a 1-day suspension, attorney fees were not warranted in the interest of justice. Because the grievant prevailed on technical, not substantive grounds, she was not substantially innocent. Moreover, it can't be said that an agency should have known that its original penalty selection wasn't reasonable where its choice of penalty was based on several charges, not all of which were sustained. National Association of Government Employees, Local R4-6 and Army Transportation Center, Fort Eustis, Virginia, 0-AR-3207-REM (55 FLRA 1298 (2000)), January 31, 2001, 56 FLRA No. 193.

PRIORITY CONSIDERATION ... FAULTY USE OF EVIDENCE IN ASSESSING QUALIFICATIONS ... RIGHT TO SELECT.   In turning down agency exceptions to an award in which the arbitrator ordered a retroactive promotion for failing to afford the grievant her priority consideration rights, FLRA said that an arbitrator's determination that the agency failed to properly consider and weigh all the evidence in the record in assessing the grievant's qualifications doesn't affect management's rights. In FLRA's words, "an arbitrator's review of agency qualification determinations to assess whether the agency, in applying its qualification standards, properly processed the evidence in the record does not affect management's rights in a manner that is contrary to the Statute." Social Security Administration, Ohio District Office and American Federation of Government Employees, Local 3348, 0-AR-3348, January 31, 2001, 56 FLRA No. 192.

BREACH OF SETTLEMENT AGREEMENT.  The Authority turned down union exceptions to an award in which an arbitrator found that the union had breached a settlement agreement in which it had agreed to drop pending cases. As a remedy for the breach the arbitrator declared another arbitrator's award null and void because the matter decided by that arbitrator was encompassed by the settlement agreement. American Federation of Government Employees, Local 2501 and Defense Logistics Agency, 0-AR-3352, January 26, 2001, 56 FLRA No. 187.

FILLING POSITIONS ... COMPETITIVE PROCEDURES .  A disapproved provision requiring that all unit vacancies be filled competitively (thus precluding the agency from using noncompetitive reassignments) is nonnegotiable because it affects management's right to make selections from any appropriate source. In rejecting the union's claim that the provision was a (b)(2) procedure, FLRA noted that it has found proposals requiring the use of competitive procedures in considering employees for vacancies to be negotiable procedures "only when the proposals do not 'prevent management from considering other applicants, or expanding the area of consideration once bargaining unit employees were considered, or using any other appropriate source' in actually 'filling such vacancies.'" Association of Civilian Technicians, Treasure State Chapter #57 and National Guard Bureau, Montana National Guard, 0-NG-2552, January 23, 2001, 56 FLRA No. 185.

DISABILITY RETIREMENT ... OWCP .  By statute a disability retirement annuity commences on the day after the annuitant's separation from service or the day after pay ceases. Queen E. Seacer v. Office of Personnel Management, SF831E990278-X-1, October 24, 2000.

WHISTLEBLOWING ... JURISDICTION.  The Merit Systems Protection Board broadens its interpretation of what constitutes whistleblowing under Whistleblower Protection Act. Ganski v. Interior, PH122198011-M-1, May 4, 2000.

Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930.
Other questions or comments may be mailed to the U.S. Office of Personnel Management, Room 7H28, Theodore Roosevelt Building, 1900 E Street, NW., Washington, DC 20415-2000. You may call us at (202) 606-2930; fax (202) 606-2613; or email lmr@opm.gov.