Select Issue:
 Number 128 April 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 MIDTERM BARGAINING DUTIES TO BE DETERMINED BY FLRA. Rejecting both the D.C. Circuit's and the contrary 4th Circuit's "absolute" treatments of the management relations statute, the Supreme Court, in a 5-4 decision, remands the case to FLRA to decide "whether, when, and where midterm bargaining is required." Given the statute's ambiguity on this matter, the Court says that FLRA "is entitled to considerable deference when it exercises its 'special function of applying the general provisions of the Act to the complexities' of federal labor relations." National Federation of Federal Employees, Local 1309 v. Department of the Interior et al., and Federal Labor Relations Authority v. Department of the Interior et al., Supreme Court, Nos. 97-1184 and 97-1243, March 3, 1999. LAST-CHANCE AGREEMENT. Where a last chance agreement provides that any violation of agency policy will result in the termination of the employee, a minor violation of an unwritten rule can constitute violation of the agreement. In such a case, once the agency proves the existence of such an unwritten policy, the burden is on the employee to demonstrate compliance with such policy. Failure to meet such burden will result in dismissal of any appeal of the resulting removal under the last chance agreement. Drellie Gibson, III, v. Department of Veterans Affairs, No. 98-3073 (Fed. Cir., Nov. 24, 1998). WHISTLE BLOWING ... JURISDICTION The Federal Circuit holds that it has jurisdiction over any issue that has been raised before a Merit Systems Protection Board judge regardless of whether the appellant has raised those same issues at the full Board level. Bosley v. Merit Systems Protection Board, No. 98-3165 (Fed. Cir., Dec. 14, 1998). FLRA DECISIONS UNION'S INFORMATION ENTITLEMENT IS NOT LIMITED TO INFORMATION RELATING TO ACTUAL NEGOTIATIONS. Several FAA activities were guilty of unfair labor practices when they refused local union requests for information that was needed to administer a seniority system that the local unions were authorized to administer under the terms of the national agreement. (Article 83 of the agreement stated, in part, that seniority shall be determined "by the Union at the local level" for purposes other than RIF.) FLRA rejected the agency's claim that only information related to current bargaining was disclosable. "It is a longstanding principle," said FLRA, "that the scope of the information entitlement under section 7114(b)(4) of the Statute extends to the full range of representational activity, not just the context of pending negotiations between labor and management." Federal Aviation Administration and National Air Traffic Controllers Association, MEBA/AFL-CIO, et al., AT-CA-70058, February 26, 1999, 55 FLRA No. 44. MEANINGLESS DEFINITION OF EMERGENCY IS NEGOTIABLE. Interpreting a disapproved provision defining "emergency" as not limiting the situations in which the agency could take actions in an emergency, the Authority directs the agency to rescind its disapproval of the provision. Acknowledging that past Authority decisions treated definitions of emergency as incompatible with the right to take actions in an emergency, the Authority announced that it would no longer follow that precedent. International Brotherhood of Electrical Workers, Local 350 and Army Corps of Engineers, 0-NG-2400, February 26, 1999, 55 FLRA No. 42. PREMATURE TERMINATION OF A PROVISION ON A PERMISSIVE SUBJECT IS FOUND TO BE A REPUDIATED OF THE AGREEMENT. The activity was under agency instructions to change shift hours so that there would be sufficient overlaps between shifts to provide incoming employees enough time to, e.g., pick up their equipment and arrive at their duty post in time to permit outgoing employees to turn in their equipment by the end of the shift. When the union refused to consent to changes of the agreement's provision on starting and quitting times, the activity unilaterally implemented the agency directive about 75 days before the agreement was scheduled to expire. The Authority held that the activity's action constituted a repudiation of the agreement. Department of Justice, Federal Bureau of Prisons, Danbury, CN and American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661, BN-CA-60527, February 26, 1999, 55 FLRA No. 37. AGENCY VIOLATED A WORK JURISDICTION PROVISION WHEN IT ASSIGNED UNIT WORK OUTSIDE THE BARGAINING UNIT. In a case involving § 704 employees whose pre-FSLMRS bargaining on work jurisdiction was preserved as a matter for mandatory bargaining by § 704 of the CSRA, FLRA turned down agency exceptions to an award in which the arbitrator, finding that the agency violated the agreement by assigning work performed by radio broadcast technicians to non-unit employees in other locations, ordered the agency to cease and desist from this practice. U. S. Information Agency and American Federation of State, County and Municipal Employees, Local 1418, 0-AR-3075, February 26, 1999, 55 FLRA No. 36. MSPB DECISIONS TIMELINESS. When an agency does not expressly decide to suspend an employee for more than 14 days, the time in which the employee may file a timely appeal begins to run when the employee has been absent for more than 14 days. An employee who is not advised of their appeal rights must still demonstrate that he or she exercised due diligence in discovering and pursuing their appeal rights. Susan Dancy-Butler v. Treasury, AT075298-0276-I-1, December 11, 1998. ATTORNEY FEES. In determining whether attorney fees are warranted in the interest of justice, the findings of the addendum initial decision must be based on and consistent with the initial decision on the merits. Gensburg v. Veterans Affairs, MSPB No. SF0752970022-A-1- November 3, 1998. RESTORATION OF DUTY. When an agency denies an employee priority consideration after the employee has fully recovered from a compensable injury, it must show that the employee is disqualified "under OPM or agency regulations." Ruth Knight v. United States Postal Service, AT0353970098-I-1, August 28, 1998. SETTLEMENT AGREEMENT. If an agency materially breaches a settlement agreement, the appellant has the option of enforcing the terms of the settlement agreement or rescinding the settlement agreement and reinstating the appeal. Linda King-Roberts v. United States Postal Service, AT0752951095-C-1, August 27, 1998. INVOLUNTARY RETIREMENT. Where an employee makes a non-frivolous allegation that he detrimentally relied on materially incorrect statements by the agency in making his decision to retire, he is entitled to a hearing on the issue of whether his retirement was therefore involuntary. Sigward Gustavson v. Department of the Army, AT0752970824-I-1, October 9, 1998. COURT DECISIONS SUPREME COURT SAYS THAT IT IS FOR FLRA, NOT THE COURTS, TO DETERMINE WHETHER, AND UNDER WHAT CIRCUMSTANCES, THERE IS A MIDTERM BARGAINING DUTY National Federation of Federal Employees, Local 1309 v. Department of the Interior et al., and Federal Labor Relations Authority v. Department of the Interior et al., Supreme Court, Nos. 97-1184 and 97-1243, March 3, 1999. Decision and Summary In a 5-4 decision, the Supreme Court (Justice Breyer, joined by Justices Stevens, Kennedy, Souter, and Ginsberg) held that because the Federal Service Labor-Management Relations Statute (FSLMRS) is ambiguous with respect to midterm bargaining, it is for the Federal Labor Relations Authority (FLRA), not the courts, to determine, in light of FLRA's delegated authority and specialized expertise in the field of labor relations, "whether, when, and where midterm bargaining is required[.]" FLRA, says the Court, "is entitled to considerable deference when it exercises its 'special function of applying the general provisions of the Act to the complexities' of federal labor relations. Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 97 (1983) . . . ." In rejecting the "absolutist" views of the 4th and D.C. Circuits, the Court said the following: [W]here the Agency and the Fourth Circuit find a clear statutory denial of any midterm bargaining obligation, we find ambiguity created by the Statute's use of general language that might, or might not, encompass various forms of midterm bargaining. That kind of statutory ambiguity is inconsistent both with the Fourth Circuit's absolute reading of the Statute and also with the D.C. Circuit's similarly absolute, but opposite, reading. . . . The statutory ambiguity is perfectly consistent, however, with the conclusion that Congress delegated to the Authority the power to determine--within appropriate legal bounds, see, e.g., 5 U.S.C. § 706 (Administrative Procedure Act); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)--whether, when, where, and what sort of midterm bargaining is required. The Statute's delegation of rulemaking, adjudicatory, and policymaking powers to the Authority supports this conclusion. The Court rejected, among other things, the agency's contention that § 7114(a)(4)'s reference to "arriving at" an agreement precludes bargaining intended to "supplement" the parties' basic agreement. In the Court's view, "these linguistic arguments, while logical, make too much of too little. One can easily read 'arriving at a collective bargaining agreement' as including an agreement reached at the conclusion of midterm bargaining . . . ." The Court also rejected the agency's claim that "collective bargaining agreement" is a "term of art" that excludes midterm agreements. Nor was the Court persuaded by the agency's policy arguments. According to the agency, interpreting the statute to provide for midterm bargaining would give unions an incentive to engage in piece-meal bargaining and would effectively eliminate compromise from the bargaining process. Although private sector unions have the right to bargain midterm, that right is rarely exercised because they are reluctant to strike midterm. No comparable disincentive exists in the Federal program where any and all impasses can be referred to the Impasses Panel for final resolution and the only economic costs of disagreement are the fees that might have to be paid to an interest arbitrator, should FSIP order use of outside interest arbitration. But the Court looked at the other side of the policy coin: Other policy concerns, however, argue for a different reading of the Statute. Without midterm bargaining, for example, will it prove possible to find a collective solution to a workplace problem, say a health or safety hazard, that first appeared midterm? The Statute's emphasis upon collective bargaining as "contribut[ing] to the effective conduct of public business," 5 U.S.C. § 7101(a)(1)(B), suggests that it would favor joint, not unilateral, solutions to such midterm problems. . . . [T]he Agency's policy arguments illustrate the need for the Authority's elaboration or refinement of the basic statutory collective-bargaining obligation; they illustrate the appropriateness of judicial deference to considered Authority views on the The Agency's legislative history argument fared no better. Under the program established by Executive Order 11491, the Assistant Secretary of Labor for Labor-Management Relations held that an agency needn't bargain on union midterm proposals. The Court, noting that this single decision had not been reviewed by FLRA's predecessor agency (the Federal Labor Relations Council), said that "a single, unreviewed decision . . . does not demonstrate the kind of historical practice that one might assume would be reflected in the Statute[.]" Nor was the Court persuaded by a Senate Report's reference to negotiations leading to a basic collective bargaining agreement. The Senate Report, the Court noted, pertained to a bill that wasn't adopted. The Court also rejected the claim that § 7106(b) authorizes limited midterm bargaining (a theme taken up at length in the dissenting opinion written by Justice O'Connor). Section 7106(b), said the Court, deals with the scope of bargaining, not with the timing of bargaining: By its terms . . . subsection (b) does nothing more than create an exception to subsection (a) . . . . Because § 7106(b) chiefly addresses the subject matter of bargaining and not the timing, one could reasonably conclude that while that subsection contemplates midterm bargaining in the circumstances there specified, the duty to bargain midterm finds its source elsewhere in the Statute. Hence, the management rights provision seems to hurt, as much as to help, the Agency's basic argument. Noting that FLRA initially held that there was no duty to bargain on union-initiated midterm bargaining requests, but that it had changed its view after the D.C. Circuit issued its "absolutist" view to the contrary, the Court remanded the cases to the Authority to give it an "opportunity to consider these questions aware that the Statute permits but does not compel, the conclusion it reached." In a 2-part dissenting opinion written by Justice O'Connor (joined by Chief Justice Rhenquist and, only with respect to the first part of her opinion, by Justices Scalia and Thomas), Justice O'Connor argued that the statute wasn't ambiguous and, in providing for impact and implementation bargaining implicitly precluded a general midterm bargaining duty. In the second part (not joined by Justices Scalia and Thomas), she argued that "even if there were some ambiguity in the Federal Labor Statute, I would hold that the agency's interpretation of the Federal Labor Statute is inferior to the natural, and most plausible, reading of that Statute--that there is no general duty to bargain midterm." Comments To sum up, the Supreme Court DID NOT DECIDE whether the FSLMRS provides for a general duty to bargain midterm. It instead remanded the matter for FLRA to decide. In the process it, sent a message to the circuit courts of appeal to accord deference to whatever conclusion FLRA reaches on this issue. FLRA, in turn, is expected to consider some of the questions raised by the agency in reaching its decision. The fact that the vote was as close as it can possibly get may or may not have a bearing on how FLRA comes down on the issue. We'll just have to wait for FLRA to tell us whether, and to what extent, and under what circumstances, there is a duty to engage in midterm bargaining. LAST-CHANCE AGREEMENT Drellie Gibson, III, v. Department of Veterans Affairs, Appeal No. 98-3073 (Fed. Cir., Nov. 24, 1998). Holdings Where a last chance agreement provides that any violation of agency policy will result in the termination of the employee, a minor violation of an unwritten rule can constitute violation of the agreement. In such a case, once the agency proves the existence of such an unwritten policy, the burden is on the employee to demonstrate compliance with such policy. Failure to meet such burden will result in dismissal of any appeal of the resulting removal under the last chance agreement. Summary The employee was a Medical Supply Technician at a Department of Veterans Affairs Medical Center. The agency proposed to remove him for illegally using drugs and stealing government property. Settlement discussions between the appellant and his superiors resulted in the signing of a last chance settlement agreement. Under the terms of the agreement, the appellant's removal would be held in abeyance for twelve months if he did not violate any of the policies or regulations of the Medical Center, and would thereafter be rescinded. However, a violation would reactivate his removal. In addition, the appellant waived his right to appeal any such removal to the Board. The agency discharged the appellant for misconduct which amounted to a breach of the last chance settlement agreement. On appeal, the AJ dismissed the appeal for lack of jurisdiction because the appeal was precluded by the terms of the last-chance settlement agreement previously entered into by the appellant and the agency. On appeal to the full Board, the initial decision became the final decision of the Board when the Board denied the appellant's petition for failure to meet the regulatory criteria for such review. The appellant petitioned the Federal Circuit for review of the Board's decision. He argued that the Board erroneously found that he breached the last-chance agreement by violating an agency policy regarding individual visiting patients. He maintained that such a policy did not apply to employees. The agency argued that the employee breached the last chance agreement on two occasions when he entered the Medical Intensive Care Unit (MCIU) without permission. The agency contended that the hospital had a policy prohibiting anyone, including hospital employees, from visiting patients in the MICU without prior permission. However, the only written policy was found in a brochure given to visitors and posted on the entrance to the intensive care unit, directing visitors to call into the unit from a telephone outside the entrance doors before entering the MICU. In reviewing the case, the Federal Circuit found, based on testimony by four agency witnesses, that a policy existed that prohibited hospital employees from visiting patients in the MICU without prior permission was supported by substantial evidence. By meeting the burden of proving the existence of an unwritten policy, the agency shifted the burden of whether the appellant could prove compliance with the policy. The appellant did not meet this burden. The appellant did not argue that he personally obtained permission to enter the MICU, or that he personally requested permission to enter the MICU on the days in question. Instead, he argued that the agreement did not contemplate "minor, non-recognized infractions" such as entering the MICU without prior permission. He contended that to enforce such a policy would not provide notice to employees such as himself. But the agency, according to the Court, correctly pointed out that the settlement agreement applied to any violation of policy, without any exceptions for "minor non-recognized infractions." Such broad language did not require that the policy in question be routinely enforced to be effective. The court also agreed with the AJ's finding that the appellant's breach of the hospital policy was material. Accordingly, the court found that there was substantial evidence to support the AJ's finding that the policy was violated by the appellant on the days in question. The appellant himself acknowledged that he was visiting a patient and did not obtain express permission to enter the MICU on the occasions in question. Therefore, the AJ correctly found that the appellant violated the agency policy and thereby materially breached the last chance settlement agreement. Thus, the appellant did not have the right to appeal his removal. WHISTLEBLOWING ... JURISDICTION John P. Bosley v. Merit Systems Protection Board, No. 98-3165 (Fed. Cir., Dec. 14, 1998). Holding The Federal Circuit holds that when an issue has been raised before a Merit Systems Protection Board judge but not raised at the full Board level in a petition for review, the issue is preserved for court review unless the appellant has knowingly abandoned or waived the issue. Summary The appellant filed a complaint with the Office of Special Counsel (OSC) in 1996 claiming that he had been reprised against (failed to get a quality step increase) for having made a whistleblowing disclosure about a supervisory Customs official nine years earlier in 1987. He also claimed that threats of dismissal and long-term assignments away from his home office constituted reprisal. After the OSC closed out the case, the appellant filed an individual right of action appeal with the Merit Systems Protection Board. A Board administrative judge dismissed the appeal for lack of jurisdiction and the full Board denied the appellant's petition for review. The appellant's petition for review raised the step increase issue but did not raise the dismissal and assignments issues. He then filed for judicial review by the Court of Appeals for the Federal Circuit. One of the appellant's key arguments was that, even though the denial of the quality step increase occurred before the Whistleblower Protection Act, he was still covered by the Act because the denial affected every pay check since then and each new (smaller) check constituted a new violation of the Act and constituted a "continuing violation." The court rejected those arguments, noting that while the denial had monetary effects that continued into the future, those consequences do not constitute either separate violations of the Act or render the original (pre-Act) violation (denial of the increase) continuing. The court also rejected the appellant's arguments that he had an entitlement to recovery for damages under the Back Pay Act. Here, the court noted that if the Board does not otherwise have jurisdiction over an individual's appeal, the Back Pay Act does not confer jurisdiction on the Board. The appellant also raised again the argument that he had been reprised against by being threatened with dismissal and given unacceptable assignments after the effective date of the Whistleblower Protection Act. The court rejected the Government's argument that, since he had not raised these matters at the full Board level, he could not seek review of them by the court. Here, the court paraphrased its precedent decision in James v. Federal Energy Regulatory Commission, 755 F.2d 154 (Fed. Cir. 1985) by saying that "when an appellant has raised an issue before a Board administrative judge but not in a petition for review to the full Board, the issue is preserved for review by this court unless the appellant has knowingly abandoned or waived the issue." The court could find no evidence that the appellant abandoned or waived the matters of dismissal threats and assignments. With regard to the Government's additional argument that the case should be dismissed because there could be no meaningful relief, the court noted that the Board's administrative judge had dismissed the case without ever considering those issues and that it was therefore inappropriate for it to determine that the Board's broad whistleblower reprisal remedial powers were insufficient here to grant a remedy. In conclusion, the court upheld the Board's dismissal of the part of the appellant's claim concerning the denial of the quality step increase (since it occurred prior to the Whistleblower Protection Act) but remanded the matter to the Board to review the additional allegations of reprisal concerning the dismissal threats and work assignments (since they occurred after the Act was effected). Comment The lesson in this case is that an agency should always be aware that when one of its cases goes to the Federal Circuit, it should be prepared to potentially defend against everything that was ever raised by the appellant at the initial stages of the Board's proceedings. Unless there is evidence that the appellant abandoned or waived claims there, they could resurface in court even though the claims were never raised at the full Board level. FLRA DECISIONS 55 FLRA No. 44 Federal Aviation Administration and National Air Traffic Controllers Association, MEBA/AFL-CIO, et al., AT-CA-70058, February 26, 1999, 55 FLRA No. 44. Holding Several FAA activities were guilty of unfair labor practices when they refused local union requests for information that was needed to administer a seniority system that the local unions were authorized to administer under the terms of the national agreement. (Article 83 of the agreement stated, in part, that seniority shall be determined "by the Union at the local level" for purposes other than RIF.) FLRA rejected the agency's claim that only information related to current bargaining was disclosable. "It is a longstanding principle," said FLRA, "that the scope of the information entitlement under section 7114(b)(4) of the Statute extends to the full range of representational activity, not just the context of pending negotiations between labor and management." Summary Under the terms of a collective bargaining agreement (CBA) for a nationwide unit of Air Traffic Controllers, the Union is given the exclusive right to determine the type of seniority that will be used for various non-RIF purposes--such as administering the CBA's provisions on shift assignments, leave, and temporary assignments. When local representatives of the union asked various FAA facilities for information on the employment histories and service computation dates of bargaining unit employees, most of those requests were turned down for various reasons. ULPs followed and the case was consolidated and referred to an ALJ for a decision. The ALJ rejected the agency's contention that, notwithstanding existing case law to the contrary, Congress intended to limit data disclosure to requests arising during negotiations. He also found that the union had established a particularized need for the requested information and that the agency didn't meet its burden to establish countervailing anti-disclosure interests that outweighed the Union's particularized need. He accordingly found that the agency violated sections 7116(a)(1), (5), and (8). On appeal, the Authority also found that the respondent committed ULPs. In rejecting the claim that only information related to current bargaining was disclosable, FLRA said the following: It is a longstanding principle that the scope of the information entitlement under section 7114(b)(4) of the Statute extends to the full range of representational activity, not just the context of pending negotiations between labor and management. See Local 1345, 793 F.2d at 1363, wherein the court held that this right to information "applies not only to information needed to negotiate an agreement, but also to data relevant to its administration," and that this meant the "full range of union responsibilities." (emphasis in original). In so holding, the court also held that this fundamental duty to provide information was "part and parcel of the fundamental duty to bargain." . . . In doing so, the court acknowledged the longstanding private sector law which requires employers to give unions access to information in connection with contract administration, and not just contract negotiations. The Authority, also finding that the union had established a particularized need that wasn't off-set by countervailing anti-disclosure interests, accordingly directed the agency to furnish the requested information. 55 FLRA No. 42 International Brotherhood of Electrical Workers, Local 350 and Army Corps of Engineers, 0-NG-2400, February 26, 1999, 55 FLRA No. 42. Holding Interpreting a disapproved provision defining "emergency" as not limiting the situations in which the agency could take actions in an emergency, the Authority directs the agency to rescind its disapproval of the provision. Acknowledging that past Authority decisions treated definitions of emergency as incompatible with the right to take actions in an emergency, the Authority announced that it would no longer follow that precedent. Summary The agency head, relying on FLRA precedent under which any definition of "emergency" interfered with the right to take any action necessary to carry out the mission of the agency in an emergency, disapproved a negotiated provision that reads as follows: The word "emergency" means a temporary condition posing a threat to human life or property including the reliability and integrity of the Cannon Power Plant. The Authority, noting that the parties at the local level who had agreed to the above provision had said that they didn't intend the provision to limit the situations in which the Agency could take actions in an emergency, interpreted the above provision accordingly. Consequently the proposal, so interpreted, did not affect management's right to "take whatever actions may be necessary to carry out the agency mission during emergencies." FLRA acknowledged that past decisions treated definitions of emergency as incompatible with the right to take actions in an emergency. However, it said that it would no longer follow that precedent. In an apparent response to an agency claim that the above interpretation of the provision made it meaningless, the Authority said, in effect, that a provision could be legal even though meaningless. "We leave to the parties," said FLRA, "the determination whether a provision is meaningful." Comment Although a meaningless provision can be legal, arbitrators aren't likely to treat contract provisions and that's what's at issue in this case, not a proposal--as being meaningless. Apparently FLRA was mindful of this when, in footnote 3, it said that "[t]he meaning we adopt for this provision would apply in other proceedings, unless modified by the parties through subsequent agreement." 55 FLRA No. 37 Department of Justice, Federal Bureau of Prisons, Danbury, CN and American Federation of Government Employees, Council of Prison Locals, AFL-CIO, Local 1661, BN-CA-60527, February 26, 1999, 55 FLRA No. 37. Holding The activity was under agency instructions to change shift hours so that there would be sufficient overlaps between shifts to provide incoming employees enough time to, e.g., pick up their equipment and arrive at their duty post in time to permit outgoing employees to turn in their equipment by the end of the shift. When the union refused to consent to changes of the agreement's provision on starting and quitting times, the activity unilaterally implemented the agency directive about 75 days before the agreement was scheduled to expire. The Authority held that the activity's action constituted a repudiation of the agreement. As a remedy, it ordered restoration of the status quo ante for at least 75 days (the remaining life of the CBA when the activity acted). After 75 days the activity can terminate the CBA provision at issue, after giving notice to the union. Absent such express notice, the status quo ante continues indefinitely. Summary The agency had directed subordinate activities to change shift hours so that there would be overlaps between shifts to give both incoming and outgoing employees adequate time within their shifts to, e.g., pick up and return equipment. The local supplemental agreement, however, specified the starting and quitting times of the three shifts. Local management, advising the union of the headquarter's directive, was unable to get the union to agree with any departure from the requirements of the CBA. In several meetings the union insisted that the CBA provision (a section 7106(b)(1) permissive subject) be adhered to and threatened to file a ULP if the agency changed the shift hours. The activity acted unilaterally about 75 days before the contract was to expire (rather than wait until the agreement expired, when it could have unilaterally and lawfully terminated the provision). A ULP complaint followed, contending the activity had repudiated the agreement's provisions on starting and quitting times. The ALJ rejected the activity's argument that, inasmuch as the national agreement prohibited local supplemental agreements from dealing with permissive subjects of bargaining, the local agreement's prescription of shift hours was invalid. Although the national agreement prohibited supplemental agreements on permissive subjects, it also allowed supplemental agreement on any matters not inconsistent with the national agreement. Since the national agreement didn't have any provision on shift starting and quitting times, the local agreement was valid. The ALJ went on to find that the CBA provision dealt with a § 7106(b)(1) matter, and concluded that the activity, in unilaterally changing shift hours had repudiated the agreement. As a remedy, he ordered a return to the status quo ante for three months, after which it could reinstitute shift changes after giving notice to the union and an opportunity to bargain on such changes. In its exceptions to the ALJ decision, the agency raised issues that had not been raised before the ALJ. Those exceptions were not valid under FLRA's regulations. Because there were no valid exceptions to the ALJ's holdings that (1) shift starting and quitting times deal with a § 7106(b)(1) matter, and (2) the activity had repudiated the agreement, FLRA adopted these findings, but made clear that they were without precedential significance. FLRA also modified the ALJ's remedy by requiring that the restoration of the status quo ante be for 75 days (rather than 3 months). FLRA also rejected the ALJ's recommendation that the notice to terminate must afford the union an opportunity to bargain before the CBA's shift hours can be terminated. It said the following: A party's right to terminate unilaterally a permissive bargaining subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change. No precedent to the contrary was cited by the Judge or the parties. Moreover, this conclusion is supported by at least two policy reasons. First, since the termination of the permissive subject can only become effective on the expiration of an agreement, the Union would have the opportunity to bargain on the matter as part of the renegotiation of the expired agreement. Second, attaching bargaining obligations to termination of permissive bargaining provisions may discourage parties from engaging in bargaining on permissive subjects. Member Wasserman dissented only to the extent that he regarded the provision at issue as being a mandatory subject of bargaining due to EO 12871 and thus it could not be unilaterally terminated after expiration of the agreement. 55 FLRA No. 36 U. S. Information Agency and American Federation of State, County and Municipal Employees, Local 1418, 0-AR-3075, February 26, 1999, 55 FLRA No. 36. Holding In a case involving § 704 employees whose pre-FSLMRS bargaining on work jurisdiction was preserved as a matter for mandatory bargaining by § 704 of the CSRA, FLRA turned down agency exceptions to an award in which the arbitrator, finding that the agency violated the CBA by assigning work performed by radio broadcast technicians to non-unit employees in other locations, ordered the agency to cease and desist from this practice. Summary A class action grievance was filed by the union, claiming that the agency's assignment of radio/TV simulcasts in Studio 47 and "walk-in production" work in Language Area Production (LAP) studios to non-unit employees violated the work jurisdiction clause of the parties' CBA. That CBA provision reads, in part, as follows: The operation and maintenance of analog radio audio broadcast equipment in the core studios (studios 1 - 19) will be assigned exclusively to NFFE-represented RBTs [radio broadcast technicians]. The arbitrator, finding the above to focus on the work, not the location at which the work was performed, found that the agency violated the CBA's work jurisdiction provision when it assigned the work to non-unit employees. As a remedy, he ordered the agency to cease and desist the violations found in his award. The Authority (Member Wasserman didn't participate in this decision) rejected the agency's claims that the arbitrator exceeded his authority, that his award failed to draw its essence from the agreement, that the award was based on non-facts, and that the award is ambiguous, contradictory, or impossible to implement. Regarding the latter, it said the following: In order for an award to be found deficient on the basis that it is incomplete, ambiguous, or contradictory so as to make implementation impossible, the appealing party must show that implementation of the award is impossible because the meaning and effect of the award is too unclear or uncertain. [51 FLRA 444, 448.] Evaluating the Agency's arguments in light of this narrow standard, the Agency has not established that the Arbitrator's award is impossible to implement. A reading of the award, as a whole, supports the conclusion that the Arbitrator intended that, to the extent unit employees were performing walk-in studio work that involved the "operation of analog radio audio broadcast equipment" performed in 1989, and such work still remained to be done, unit employees should do the work. . . . Nothing in this finding makes it impossible to implement the Arbitrator's further conclusion that LAP personnel were entitled to perform work they were performing when the work jurisdiction clause became effective in 1995. Comment Although work jurisdiction proposals/provisions normally are nonnegotiable/non-enforceable because they directly interfere with management's right to assign work, USIA's radio broadcast technicians are an exception to that rule. The technicians are "prevailing rate" employees who are covered by section 9(b) of the Prevailing Rate Systems Act. Section 704(a) of the Civil Service Reform Act provides, in part, that the terms and conditions of 9(b) employees that were negotiated prior to August 19, 1972, continue to be negotiable without regard to the provisions of the FSLMRS. In 37 FLRA No. 113, the Authority found that a work jurisdiction proposal was negotiable because the union had established that jurisdiction over work was a matter negotiated by the parties before 1972 and thus was preserved as a matter for mandatory bargaining by § 704 of the CSRA. See, also, 49 FLRA No. 119 where, as a result of a court remand, FLRA reaffirmed this holding. Interestingly, in its decision in the case at bar, FLRA provides none of this history to the reader. TIMELINESS Susan Dancy-Butler v. Treasury, AT075298-0276-I-1, December 11, 1998. Holdings When an agency does not expressly decide to suspend an employee for more than 14 days, the time in which the employee may file a timely appeal begins to run when the employee has been absent for more than 14 days. An employee who is not advised of their appeal rights must still demonstrate that he or she exercised due diligence in discovering and pursuing their appeal rights. Summary The employee filed an untimely appeal alleging that the agency's initial refusal to reinstate her and, as a form of reasonable accommodation, reassign her, constituted a constructive suspension as well as a form of discrimination under the Rehabilitation Act. Finding that the employee failed to establish that the agency initiated her placement on leave and that her inability entitled her to a reasonable accommodation, the administrative judge dismissed her appeal for lack of jurisdiction. Due to the fact that the administrative judge dismissed the appeal on jurisdictional grounds, he did not address the timeliness issue. In Popham v. Postal Service, 50 MSPR 193, 197-198 (1991), the full Merit Systems Protection Board (Board) held that only where jurisdiction and timeliness are "inextricably intertwined" must a finding be made on jurisdiction before an appeal may be dismissed as untimely. Therefore, on review, the Board addressed the timeliness issue. When an agency does not expressly decide to suspend an employee for more than 14 days, the time in which the employee may file a timely appeal begins to run when the employee has been absent for more than 14 days [Greek v. Postal Service, DE 0751970555-I-1, (June 9, 1998)]. In this case, the employee filed an appeal 23 months after the agency denied her request to return to work. The employee's attorney argued that the agency committed harmful error in not advising the employee of her appeal rights. Although the employee's attorney argued that it took many months before they "realized what the agency had done and to articulate a position," the Board held that an employee who is not advised of her appeal must still demonstrate due diligence in discovering and pursuing her appeal rights. Accordingly, the Board dismissed the appeal as untimely, and finding that the issues of timeliness and jurisdiction were not inextricably intertwined, it declined to decide any issue of jurisdiction. ATTORNEY FEES Gensburg v. Veterans Affairs, MSPB No. SF0752970022-A-1- November 3, 1998. Holdings In determining whether attorney fees are warranted in the interest of justice, the findings of the addendum initial decision must be based on and consistent with the initial decision on the merits. Summary The employee was removed based on the charges of unauthorized possession and removal of government property, diesel fuel and six half-sheets of plywood, and unauthorized use of a government vehicle. The administrative judge only sustained the charge of unauthorized possession and removal of plywood and, therefore, mitigated the removal penalty to a 90-day suspension. That decision became the final decision of the Board when neither part petitioned for review. In an initial addendum decision, the administrative judge denied the appellant's motion for attorney fees, finding that the fees were not warranted in the interest of justice. The employee filed a petition, asserting that the administrative judge made findings contrary to the findings of the initial decision on the merits of his appeal. The Board first noted that the gravity and circumstances of a sustained charge are important factors in determining whether the Board should award fees under the "in the interest of justice" standard [Allen v. Postal Service, 2 MSPR 420, 434-35 (1980)]. In the addendum initial decision, the administrative judge stated that the agency failed to prove the charge of unauthorized possession and removal of diesel fuel and unauthorized use of a government vehicle on a "technicality". Contrary to the findings in the initial decision on the merits, the administrative judge also emphasized the seriousness of the sustained charge. However, based on the findings of the initial decision on the merits, the full Board held that the sustained offense was not grave. The full Board found that the findings from the initial decision on the merits when that decision became the final decision of the Board, not the re-review of the full record, control in determining whether an award of attorney fees in warranted in the interest of justice. In this case, the findings of the initial decision indicated that the agency presented no credible evidence to support its charges of unauthorized possession and removal of diesel fuel, and unauthorized use of a government vehicle and that the sustained offense was not grave. The findings of this initial decision became the final decision of the Board. Therefore, the Board found that fees were warranted in the interest of justice. The full Board remanded the case to the regional office to address the reasonableness of fees requested by the employee and to issue a new addendum initial decision. RESTORATION TO DUTY Ruth Knight v. United States Postal Service, AT0353970098-I-1, August 28, 1998. Holding When an agency denies an employee priority consideration after the employee has fully recovered from a compensable injury, it must show that the employee is disqualified "under OPM or agency regulations." Summary The appellant was a Letter Carrier who separated from the agency by disability retirement effective March 4, 1994. On October 12, 1994, the Office of Workers' Compensation Programs (OWCP) found that she was entitled to compensation based on major depression retroactive to February 13, 1991. After OWCP terminated benefits effective August 15, 1996, based on a finding that the appellant had fully recovered, the appellant applied for restoration under 5 C.F.R. part 353. The agency denied the request based on information obtained during a discrimination suit filed by the appellant in U.S. district court, that the appellant had misrepresented and omitted facts about herself since 1991 in order to benefit financially under the Federal Employees Compensation Act and Title VII of the Civil Rights Act of 1964. On appeal to an MSPB regional office, the administrative judge (AJ) affirmed the agency's decision. The AJ found that this conduct would have justified the appellant's removal if she had been continuously employed. On appeal to the full Board, the Board denied the appellant's petition for review but reopened the appeal because the AJ's order informing the agency of what it had to prove in this case omitted a requirement in the applicable regulation. The AJ did not inform the agency that it had to prove that the appellant's misconduct was such that it disqualified her for employment "under OPM or agency regulations." OPM's regulations provide that an employee who separated because of a compensable injury and whose full recovery takes longer than one year from the date eligibility for compensation began is entitled to priority consideration, agencywide, for restoration to the position he or she left or an equivalent one. However, if during the period of injury... the employee's conduct is such that it would disqualify him or her for employment under OPM or agency regulations, restoration may be denied. The Board found that 5 C.F.R. § 353.108 allows for the disqualification of a person entitled to priority consideration only under an OPM or agency regulation that provides for such disqualification. OPM's regulation at 5 C.F.R. § 302.203 permits agencies to include certain reasons in its qualification standards that would disqualify persons entitled to priority consideration. The Board held that it does not view section 302.203 as self-effectuating. Requiring agencies to adopt disqualifying factors in their qualification standards appears designed to ensure that agencies "apply the standards for a position uniformly to all applicants," 5 C.F.R. § 202, and not make ad hoc decisions. There was no indication in the record or in the testimony of the agency's witnesses that the agency disqualified the appellant under an OPM or agency regulation. Accordingly, the Board vacated the initial decision and remanded the appeal for the taking of evidence on the issue of whether the agency disqualified the appellant from priority consideration "under OPM or agency regulations." SETTLEMENT AGREEMENT Linda King-Roberts v. United States Postal Service, AT0752951095-C-1, August 27, 1998. Holding If an agency materially breaches a settlement agreement, the appellant has the option of enforcing the terms of the settlement agreement or rescinding the settlement agreement and reinstating the appeal. Summary Appellant, a preference-eligible City Carrier, appealed the agency's decision to remove her based on charges of misconduct. The parties entered into a settlement agreement providing in relevant part that the appellant would withdraw her appeal; the agency would expunge from the appellant's Official Personnel File "any and all references" to the notice proposing her removal and the subsequent removal decision, the agency would place the appellant on leave without pay for 12 months, during which time she would pursue disability retirement benefits before the Office of Personnel Management; the appellant would resign at the expiration of the 12-month period if she had not by that time been granted disability retirement; the agency would expedite processing of the appellant's disability retirement application; the agency would pay the appellant a large sum and also pay her attorney fees; the parties would keep the terms and conditions of the agreement confidential; and the agreement would be enforceable by the Board. The appellant applied for disability retirement. OPM denied the application in a decision that made express reference to the notice of proposed removal. The appellant filed a petition for enforcement, claiming that the agency violated the settlement agreement by disclosing the notice of proposed removal, as well as the settlement agreement itself, to OPM. The appellant asked that the agreement be rescinded and the appeal be reinstated. The administrative judge denied the petition for enforcement finding that OPM had requested information about the appellant's employment status, and that the agency was required by statute and regulation to provide OPM with the requested information. The appellant argued in her petition for review that the agency violated the expungement and confidentiality provisions of the settlement agreement when it disclosed the notice of proposed removal, the removal decision letter, and settlement agreement to OPM. The appellant's allegation of breach centered on the agency's response to an inquiry from OPM regarding her disability retirement application. Specifically, OPM received a letter from her doctor in which he inaccurately stated that a Merit Protection Hearing separated the appellant from the Postal Service with a permanent disability. OPM subsequently contacted the agency to clarify the appellant's employment status. OPM requested a copy of the settlement agreement from the agency in order to further process the appellant's application for disability retirement. Although the settlement agreement clearly indicated that it was to remain confidential, it is undisputed that the agency disclosed the notice of proposed removal, the removal decision letter and the settlement agreement itself to OPM. The Board concluded that the agency's disclosure of the agreement to OPM was a breach of the agreement. The Board rejected the agency's argument that its disclosures were required under either the Freedom of Information Act (FOIA), Privacy Act, or OPM regulations. It held that the neither the FOIA or the Privacy Act are intended to increase a government agency's discretion to what it could release or decline to disclose to another agency. It similarly rejected the argument that OPM's regulations supersede the broadly worded confidentiality provision of the settlement agreement. The Board found that the confidentiality provision was a vital component of the settlement agreement and that the agency's action constituted a material breach of the settlement agreement. The Board held that the appellant was entitled to rescission of the settlement agreement and reinstatement of the appeal. It also held that in order to rescind the settlement agreement and reinstate her appeal, the appellant must first return all money she received as a result of the agreement. INVOLUNTARY RETIREMENT Sigward Gustavson v. Department of the Army, AT0752970824-I-1, October 9, 1998. Holding Where an employee makes a nonfrivolous allegation that he detrimentally relied on materially incorrect statements by the agency in making his decision to retire, he is entitled to a hearing on the issue of whether his retirement was therefore involuntary.
Summary The appellant was employed as a Mechanical Engineering Technician with the Army Corps of Engineers. He elected to apply for early retirement and to receive a Voluntary Separation Incentive Payment (VSIP) based on information from a staffer in the agency's Personnel Office, that during an upcoming RIF, his position would be abolished, and that he would receive a notice of separation with no job offer. The agency did not provide him with a written RIF separation notice. In his appeal to an MSPB Regional Office he claimed that his retirement was involuntary because: (1) it was based on the personnel officer's statement that his position would be abolished; and (2) he subsequently learned that his position had not been abolished. The administrative judge found that the appellant could appeal his separation under Mays v. Department of Transportation, 27 F.3d 1577, 1579-81 (Fed. Cir. 1994), but she dismissed the appeal, finding it was premature because it was filed before the appellant's separation would have been effective. The agency petitioned the full Board for review, contending that the administrative judge erred in finding that the Board had jurisdiction over the appellant's appeal. The Board found that the administrative judge based her determination that the agency's oral communication to the appellant that he would be separated was sufficient to enable him to appeal to the Board under Mays. The Board held this was error. In Mays, the agency acted upon its proposed removal by issuing the appellant a written notice of its final decision to remove her for unacceptable performance. Here, the appellant's VSIP application expressly provided that such a payment would preclude his separation by RIF. Further the agency took no action with regard to the appellant's separation once he had elected early retirement, and never issued him a formal written notice of its decision to separate him. The administrative judge did not address the appellant's involuntary retirement allegation. The appellant alleged that he subsequently learned that his position was not abolished, but was given to another employee. The Board concluded that because the deadline imposed by the agency for election of its early retirement/VSIP program, the appellant could not have awaited the purported abolition of his position to then make a decision to retire or not to retire under that program. Rather, he was compelled by the manner in which the agency structured the early retirement/VSIP program to make his retirement decision in reliance on representations allegedly made to him by an agency official that his position would definitely be abolished after the early retirement election period had expired. Accordingly, the Board found that the appellant had made a nonfrivolous allegation that he detrimentally relied on materially incorrect statements by the agency in making his decision to retire, and that his retirement was therefore involuntary. The Board remanded the appeal to the regional office for a hearing on the issue of involuntariness. 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. Page Updated 12 October 1999 |
Top