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

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
		SETTLEMENT AGREEMENTS ... REPORTING FELONIOUS CONDUCT
		VETERANS PREFERENCE ... PROMOTION
		LAW ENFORCEMENT CREDIT ... RETIREMENT CREDIT
	FLRA DECISIONS
		ATTORNEY FEES ... WITHIN GRADE INCREASE ... INTEREST
		NOT FILLING POSITIONS ... BEP TEST ... ABROGATION TEST ... INSUFFICIENT GUIDANCE
		EEO SETTLEMENT AFFECTING UNIT ... POST-IMPLEMENTATION I&I
		WEINGARTEN ... RESTRICTING CHOICE OF UNION REPRESENTATIVE ... PARTIAL DISCLOSURE OF PRIVILEGED CONVERSATION
		FORMAL DISCUSSION ... MEDIATION OF FORMAL EEO COMPLAINT
	MSPB DECISIONS
		REMOVAL ISSUES ... ELIGIBILITY FOR DISCONTINUED SERVICE ANNUITY
		USERRA ... NOTICE REQUIREMENTS
		MSPB REVIEW OF ARBITRATION AWARDS

SETTLEMENT AGREEMENTS ... REPORTING FELONIOUS CONDUCT.  While there is no statutory requirement for an agency to report felonious conduct to the proper authorities, the settlement agreement reached by the appellant and agency did not preclude the agency's ability to report such conduct to the proper authorities, whether those authorities are domestic or international. Fomby-Denson v. Department of the Army, 247 F.3d 1366 (Fed. Cir. May 3, 2001).

VETERANS PREFERENCE ... PROMOTION.  Neither the Veterans Preference Act (VPA) nor the Vietnam Era Veterans' Readjustment Assistance Act (VEVRAA) accord veterans preference for promotions and intra-agency transfers. Fonda Brown, Alphonso Adams, and Angela Hapier v. Department of Veterans Affairs, Nos. 00-3278, -3313, -3314 (Fed. Cir. April 18, 2001).

LAW ENFORCEMENT CREDIT ... RETIREMENT CREDIT.   The Federal Circuit declines to overturn the Board's determination that the appellant was not a law enforcement officer, holding that determination of factual issues and the drawing of appropriate inferences from them is a task for the Board, not for the court. James T. Hannon v. Department of Justice, No. 99-3354 (Fed. Cir. Dec, 7, 2000).

ATTORNEY FEES ... WITHIN GRADE INCREASE ... INTEREST.  The Authority turned down agency exceptions to an award in which the arbitrator found that the agency committed an unjustified or unwarranted personnel action when it improperly failed to award the grievant backpay with interest at step one of the grievance procedure and determined that attorney fees were warranted in the interest of justice. Because the issue of the reasonableness of the amount of the attorney fees remained unresolved, FLRA remanded this matter to the parties for settlement or resubmission to the arbitrator. FLRA added that if either party objected to resubmission of this matter to this particular arbitrator, the parties are to select a different arbitrator to determine the reasonableness of the attorney fees sought. Naval Surface Warfare Center, Indian Head, Maryland and American Federation of Government Employees, Local 1923, 0-AR-3285, July 23, 2001, 57 FLRA No. 75.

NOT FILLING POSITIONS ... BEP TEST ... ABROGATION TEST ... INSUFFICIENT GUIDANCE.  In a split decision (Cabaniss dissenting), the Authority turned down agency exceptions to an award in which arbitrator, after finding that the agency violated the agreement by leaving certain work posts temporarily vacant, ordered the agency to vacate the posts "only for good reason and not on a routine basis for administrative convenience." Because the award affected management's rights to assign work and determine its internal security practices, FLRA applied the BEP test. It found that the award (1) enforced an arrangement that didn't "abrogate" management's rights and (2) was a "proper reconstruction" of what the agency would have done had it not violated the agreed-to arrangement. In addition to dissenting to the use of the abrogation test, Chairman Cabaniss expressed concern "that the parties have been left without sufficient guidance to help them determine what future conduct will or will not comport with the award." Federal Bureau of Prisons, U. S. Penitentiary, Atlanta, Georgia and American Federation of Government Employees, Council of Prison Locals, Local 1145, 0-AR-3369, July 18, 2001, 57 FLRA No. 72.

EEO SETTLEMENT AFFECTING UNIT ... POST-IMPLEMENTATION I&I.  The Authority found that the agency committed an impact-and-implementation (I&I) unfair labor practice when it didn't notify the union when it implemented a court-approved settlement agreement of a discrimination complaint. In rejecting the agency's claim that post-implementation I&I bargaining would require agencies in future cases to delay implementing court-approved settlements or court orders until bargaining is complete, FLRA noted that "the Authority has indicated in prior cases that when an agency changes conditions of employment in order to correct an unlawful practice, the agency may implement the change prior to negotiations." Air Force, March Air Reserve Base, California and American Federation of Government Employees, Local 3854, AFL-CIO, SF-CA-00037, July 6, 2001, 57 FLRA No. 71.

WEINGARTEN ... RESTRICTING CHOICE OF UNION REPRESENTATIVE ... PARTIAL DISCLOSURE OF PRIVILEGED CONVERSATION.  The Authority (Member Wasserman dissenting) agreed with the ALJ in finding that the agency overcame the union's presumptive right to designate a particular representative in an investigatory examination. It found that there was a potential conflict of interest justifying the limitation on the employee's choice of representative. It also found that there was sufficient need to justify the two questions the special agent asked a union representative about an otherwise protected conversation between the representative and an employee. U. S. Customs Service, Office of Internal Affairs, Tucson, Arizona and National Treasury Employees Union, Chapter 116, DE-CA-80776, -80829, July 29, 2001, 57 FLRA No. 66.

FORMAL DISCUSSION ... MEDIATION OF FORMAL EEO COMPLAINT.  The Authority, relying on its decision in Luke AFB (54 FLRA No. 75), and notwithstanding the 9th Circuit's having reversed that decision in Luke AFB v. FLRA, 208 F.3d 221 (9th Cir. 1999), cert. denied, 121 S. Ct. 60 (2000)), held that the agency committed a formal discussion ULP when it failed to notify the union of the mediation of a formal EEO complaint. "[W]e . . . do not acquiesce in the 9th Circuit's view of the scope of the term 'grievance.'" (In this case, the negotiated grievance procedure excluded EEO complaints, and the union wasn't representing the employee in the statutory procedure.) Chairman Cabaniss dissented on two grounds: (1) she agreed with the 9th Circuit's view, and (2) the presence of a union representative at the mediation session, where the union is not acting as the representative of the EEO complainant, violates EEOC regulations. Air Force, 436th Airlift Wing, Dover AFB and American Federation of Government Employees, WA-CA-00262, June 28, 2001, 57 FLRA No. 65.

REMOVAL ISSUES ... ELIGIBILITY FOR DISCONTINUED SERVICE ANNUITY.  Where there has been no review of the substantive validity of the removal action, OPM may not deny a request for discontinued service annuity on the basis that the employee's removal was for misconduct or delinquency. John Litzenberger v. Office of Personnel Management, DC0831990279-M-1, May 16, 2001.

USERRA ... NOTICE REQUIREMENTS.  In the case of a USERRA appeal, where a violation of USERRA is raised as an affirmative defense, an administrative judge (AJ) must inform an appellant of the burdens of proof and the different methods of proving a USERRA claim. Stephen Fox v. United States Postal Service, BN-3443000064-I-1, May 4, 2001

MSPB REVIEW OF ARBITRATION AWARDS.  The scope of the Board's review of arbitrators' awards is limited; the awards of arbitrators are entitled to deference. The Board will modify or set aside an arbitrator's award only when the arbitrator has erred as a matter of law in interpreting civil service law, rule, or regulation. Absent legal error, the Board cannot substitute its conclusions for those of the arbitrator, even if it would disagree with the arbitrator's decision. Noel Costa v. Department of Defense, MSPB CB-7121-00-0018-V-1, May 1, 2001.

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.