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

Number 141                    June 2001

	COURT DECISIONS
		WHISTLEBLOWER PROTECTION ACT
	FLRA DECISIONS
		PRONG II OF BEP TEST VIOLATED
		APPROPRIATE ARRANGEMENT ... TREATING EMPLOYEES FAIRLY AND EQUITABLY
		EEO SETTLEMENT AGREEMENT ... INTERPRETING STIPULATIONS
		PERFORMANCE ... METHODS AND MEANS
		DURATION OF WORK ASSIGNMENTS ... TAILORING ... ABROGATION TEST ... BEP TEST
	MSPB DECISIONS
		PERFORMANCE-BASED ACTIONS
		PERFORMANCE-BASED ACTIONS

WHISTLEBLOWER PROTECTION ACT.  Non-pecuniary damages are not recoverable under the Whistleblower Protection Act because the Government has not waived its sovereign immunity with respect to such claims. Janice R. Bohac v. Department of Agriculture, No. 99-3306 (Fed. Cir. Feb. 14, 2001).

PRONG II OF BEP TEST VIOLATED.  In a split decision (Member Wasserman dissenting), the Authority set aside that portion of an arbitration award directing the reassignment of the grievant because it failed Prong II of the BEP test—i.e., it wasn't a proper reconstruction of what the agency would have done had it not violated the contract provisions that the arbitrator found the agency had violated. In his dissent, Member Wasserman said that he "would modify the BEP standard to state that in cases where a management right is affected, reconstruction is not a requirement where an arbitrator finds a violation of a collective bargaining agreement negotiated pursuant to § 7106(b) and reconstruction is not feasible. I would discard the mandatory use of the second prong of BEP in such situations." Social Security Administration, Boston Region and American Federation of Government Employees, Local 1164, 0-AR-3176, June 13, 2001, 57 FLRA No. 55.

APPROPRIATE ARRANGEMENT ... TREATING EMPLOYEES FAIRLY AND EQUITABLY.  In a split decision (Chairman Cabaniss dissenting), the Authority turned down agency exceptions to an award in which the arbitrator found that the supervisor had violated a contract provision requiring the agency to treat all employees "fairly and equitably in all respects." The majority found the contract provision to be an enforceable "prophylactic" appropriate arrangement. In her dissent, Chairman Cabanisss said that she did not agree that "the extremely general language of Article 38, which requires only that the Agency treat employees 'fairly and equitably,' without reference to any particular Agency actions, can reasonably be construed as an appropriate arrangement under § 7106(b)(3) of the Statute." Department of the Army, Dugway Proving Ground, Dugway, Utah and National Association of Government Employees, Local R14-9, 0-AR-3245, June 1, 2001, 57 FLRA No. 48.

EEO SETTLEMENT AGREEMENT ... INTERPRETING STIPULATIONS.  FLRA turned down agency exceptions to an award in which the arbitrator found that the agency violated an EEO settlement agreement by not according the grievant priority consideration for a position the agency claimed wasn't in the bargaining unit. In rejecting the agency's claim that he didn't stick to the letter of the stipulated issue, FLRA said that "the Authority accords an arbitrator's interpretation of a stipulation of issues the same substantial deference that it accords an arbitrator's interpretation and application of a collective bargaining agreement." Social Security Administration v. American Federation of Government Employees, Local 1923, 0-AR-3346, May 24, 2001, 57 FLRA No. 44.

PERFORMANCE ... METHODS AND MEANS.  Because proposals making the use of audit software contingent on the agreement of the auditor and/or the union president concern the methods and means of performing work, they are negotiable at the election of the agency even though they also affect management's rights to direct and assign employees and to assign work. The majority, Member Wasserman dissenting, refused to address the union's further claim that, under the terms of a still effective expired contract requiring the agency to bargain on § 7106(b)(1) matters, the agency had a statutory duty to bargain on the proposals. "Authority orders in negotiability cases are designed to enforce an agency's statutory--not purely contractual --obligation to bargain."

Proposals precluding the agency from lowering an employee's performance evaluation based on the employee's refusal to use agency-approved audit software, and from holding an auditor responsible for the inclusion of a particular kind of file in an "working paper package" are nonnegotiable because they affect management's rights to direct employees and assign work. FLRA rejected the union's claim that they constitute one of the § 7106(b) exceptions to management's § 7106(a) rights. American Federal of Government Employees, Local 3529 and Defense Contract Audit Agency, Irving, TX, 0-NG-2514, May 23, 2001, 57 FLRA No. 43.

DURATION OF WORK ASSIGNMENTS ... TAILORING ... ABROGATION TEST ... BEP TEST.  The Authority, Chairman Cabaniss dissenting, turned down agency exceptions to an award in which the arbitrator interpreted and applied the agreement in such a manner as to effectively limit the duration of work assignments to three-month periods.

The majority rejected the agency's claim that the enforced provision wasn't sufficiently "tailored" to constitute an "arrangement" within the meaning of § 7106(b)(3). It said that, "in arbitration cases, balms are inherently administered only to hurts arising from the exercise of a management right." It also rejected the agency's claim that the award "completely negates" and excessively interferes with the agency's right to determine internal security practices.

In her dissent, Chairman Cabaniss took the position that the tailoring requirement and the excessive interference balancing test that FLRA applies to proposals and to provisions disapproved by agency heads to determine their negotiability should also be applied to contract provisions that, as interpreted and applied by an arbitrator, affect management's rights. Department of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, OK and American Federation of Government Employees, Local 171, Council of Prison Locals C33, 0-AR-3300, May 18, 2001, 57 FLRA No. 40.

PERFORMANCE-BASED ACTIONS.  An agency is not prohibited from using more than one document to set forth the performance standards against which an employee's performance will be rated. Joseph Diprizio v. Department of Transportation, SE0432980331-I-1, March 19, 2001.

PERFORMANCE-BASED ACTIONS.  Board finds that generic performance standards that do not allow for error, even as amended in the PIP notice, are impermissibly absolute and thus invalid. Willena Johnson v. Department of Interior, SE0432990061-I-1, November 30, 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.