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 Number 125 August 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 SETTLEMENT ... AGENCY-FILED DISABILITY RETIREMENT. An agency must file and prosecute a disability retirement application for an employee who meets the criteria provided in 5 CFR 844.202(a). Wayne B. Harris v. Department of Veterans Affairs, No. 98-3051 (Fed. Cir. May 7, 1998). FLRA DECISIONS FORMAL DISCUSSIONS ... MEDIATED/FACILITATED SETTLEMENT MEETINGS ... FORMAL EEO COMPLAINTS. FLRA found that the activity committed a "formal discussion" unfair labor practice (ULP) when it didn't notify the union of a mediated meeting between the employee and a representative of the agency concerning the employee's two formal Equal Employment Opportunity (EEO) complaints. It found, among other things, that the union's right to be represented at face-to-face negotiations of a grievance also applies to negotiations conducted by a mediator. Although the Administrative Law Judge (ALJ) had found that the two agency employees performing mediation were "representatives of the agency" for the purposes of § 7114(a)(2)(A), the Authority did not adopt (because not necessary) these ALJ findings. But it also added that 16 FLRA No. 135, where an EEO official had been acting as a facilitator, "will no longer be followed to the extent it implies that a discussion conducted [in a nonconfrontational manner through a neutral third party] will never be 'formal' within the meaning of the Statute." Luke Air Force Base, Arizona and American Federation of Government Employees, Local 1547, DE-CA-50519, August 13, 1998, 54 FLRA No. 75. OFFICIAL TIME ... LOBBYING ... DEPARTMENT OF DEFENSE (DOD) PERMISSIVE § 7106(b)(1) STAFFING PATTERNS and METHODS AND MEANS. Proposals requiring that there be a helicopter pilot and a short-range helicopter at two different locations (instead of at only one location, as proposed by management) are § 7106(b)(1) elective subjects of bargaining. That part of the union's proposals prescribing the location of pilots deals with "staffing patterns." That part prescribing the type and location of helicopters deals with "methods and means." These conclusions were reached after the Authority earlier determined that the proposals were not § 7106(b) (3) "appropriate arrangements," and therefore not mandatory subjects of bargaining. American Federation of Government Employees, Local 3807 and Department of Energy, Western Area Power Administration, Golden, Colorado, 0-NG-2394, July 31, 1998, 54 FLRA No. 69. BARGAINING TO IMPASSE ULP ... MULTI-EMPLOYER BARGAINING. In turning down the agency's request for reconsideration of the Authority's decision in 53 FLRA No. 110, the Authority rejected the agency's claim, based on the definition of "impasse" found in the regulations of the Federal Service Impasses Panel, that there was no impasse. "In an unfair labor practice case concerning the duty to bargain," said FLRA, "resort to third party mediation is not a prerequisite to a finding of an impasse. Section 2470.2(e) of the Panel's regulations simply does not apply in this context." FLRA also rejected the agency's claim that it was a "multi-employer" entitled to bargain separate contracts. Food and Drug Administration, Northeast and Mid-Atlantic Regions and American Federation of Government Employees, AFL-CIO, Council No. 242, BN-CA-50168, July 31, 1998, 54 FLRA No. 68. TIMELINESS In cases where the issues of timeliness and jurisdiction are inextricably intertwined, an appeal cannot be dismissed solely on the issue of timeliness. Ronald E. Greek v. Postal Service, DE07520555-I-1, June 9, 1998. LEAVE ... FAMILY AND MEDICAL LEAVE ACT (FMLA). An agency must prove its compliance with FMLA when taking a leave-related charge against an employee. A FMLA claim is not an affirmative defense. In this case, the fact that the appellant failed to submit sufficient medical documentation throughout the removal and appeals process overrode the appellant's argument that the agency failed in its obligation to inform him of his entitlement to FMLA. Jefferies v. Department of the Navy, DC0752970614-I-1, June 2, 1998. PROBATIONARY PERIOD. A new employing agency cannot be expected to know the terms of a potential employee's previous employment. Therefore, the new employing agency does not have the obligation to advise a new employee of the implications of a change in position. Melvin W. Park v. Department of Health and Human Services, AT315H970260-I-1, May 29, 1998. SETTLEMENT ... AGENCY-FILED DISABILITY RETIREMENT Wayne B. Harris v. Department of Veterans Affairs, No. 98-3051 (Fed. Cir. May 7, 1998). Holding An agency must file and prosecute a disability retirement application for an employee who meets the criteria provided in 5 CFR 844.202(a). Summary The agency, in removing the appellant because of his psychiatric disability and the misconduct it had caused, concluded that he lacked the emotional and mental stability that an employee must possess in order to qualify for his position. That assessment was based on a psychiatric diagnosis of "delusional disorder, persecutory type" and on an earlier suspension for a confrontation involving abusive language and threats of violence. The agency informed him he could file for disability retirement, and assisted him in doing so after he filed his appeal of the removal, but before the Administrative Judge (AJ) ruled. During a subsequent status conference, the AJ entered a settlement of the case into the record that reads, in part, as follows: 1) the appellant voluntarily withdraws his appeal; 2) the agency agrees to assist him with his [pending] disability application . . . ; 3) the appellant m[a]y refile this appeal within 30 days of his receipt of any final decision by OPM which denies his disability application, provided he also appeals OPM's final decision . . . . The agreement also allowed him to refile if he had not received a decision from OPM by March 21, 1997. The appellant subsequently petitioned for review of the initial decision dismissing his appeal, saying the settlement was involuntary. The Merit Systems Protection Board (MSPB, or Board) denied the petition for review. On the same day he wrote to OPM requesting withdrawal of his disability retirement application, which was granted by OPM. After March 21, the appellant filed a petition for enforcement, saying he was entitled to refile his appeal because he had not received a final decision from OPM. The AJ dismissed the petition. He found the appellant could not refile the appeal, because it was he who had breached the clear intent of the settlement when he withdrew his disability retirement application. When his petition for review was denied, a court appeal followed. The court agreed with the AJ that the appellant's withdrawal of his application had breached the agreement and the appellant was therefore unable to reinstate his appeal. However, the court found that the agency may not have discharged its obligation to "assist" the application, if in fact the appellant met the criteria of 5 CFR 844.202(a). That regulation requires the agency to file the application for the (otherwise qualified) employee it has decided to remove if the underlying cause of the removal is medical, the employee is institutionalized, or the agency has other sound reasons to conclude the employee is not competent to file, and the employee does not have a representative, guardian, or family member who is willing and authorized to file on his or her behalf. The case was remanded for a determination about whether the agency had breached its obligations. Comment The regulatory provision cited by the court is not new, but it is rarely invoked. In this instance, neither party had apparently considered, much less raised the issue. In fact, the appellant showed no desire for a disability retirement, and purposely withdrew his own application. However, the appellant's enforcement petition, which cited another settlement clause entirely, gave the court an opportunity to remind the agency that "assistance" for an incompetent employee with no representative may include filing the disability application for that employee, with or without the employee's agreement! Agencies will be wise to familiarize themselves with the narrow criteria of 5 CFR 844.202(a) and make an early determination concerning whether an employee who is being removed meets them. 54 FLRA No. 75 Luke Air Force Base, Arizona and American Federation of Government Employees, Local 1547, DE-CA-50519, August 13, 1998, 54 FLRA No. 75.. Holding FLRA found that the activity committed a formal discussion ULP when it didn't notify the union of a mediated meeting between an employee and a representative of the agency concerning the employee's two formal EEO complaints (the employee had earlier received counseling regarding her informal EEO complaint). It found, among other things, that the union's right to be represented at face-to-face negotiations of a grievance also applies to negotiations conducted by a mediator. Although the ALJ had found that the two agency EEO officials performing mediation were "representatives of the agency" for the purposes of § 7114(a)(2)(A), the Authority did not adopt (because not necessary) these ALJ findings. But it added that 16 FLRA No. 135, involving an EEO official acting as a facilitator, "will no longer be followed to the extent it implies that a discussion conducted [in a nonconfrontational manner through a neutral third party] will never be 'formal' within the meaning of the Statute." Summary When a bargaining unit employee filed two formal EEO complaints alleging retaliation for having filed a previous EEO complaint against her supervisor, the activity referred the complaints to the Defense Department's Office of Complaint Investigations (OCI). An OCI investigator subsequently scheduled a meeting between the employee and a management official with authority to adjust the complaint. The OCI investigator indicated that she'd attempt to mediate a settlement and conduct a formal investigation only if mediation failed. At the January 18 meeting, attended by the employee, her designated representative (who was president of the local union), and an attorney from the Air Force's Judge Advocate General's office representing the activity, the OCI investigator tried, but failed, to mediate a settlement. After both the agency and the union representatives left for the day, the OCI investigator, who had been taking the employee's statement, told the employee that there would be another meeting on the following day. The union wasn't notified of, and did not attend, the second meeting. At the January 19 meeting the activity's chief EEO counselor, who was "in and out of the room" relaying the positions of the employee and the activity's attorney to each other, was able to mediate a settlement. But a ULP complaint followed, claiming that the January 19 meeting was a "formal discussion" and that therefore the activity committed a ULP when it didn't give the union notice of that meeting. A hearing before an ALJ followed and the ALJ concluded that the activity committed a ULP. In reaching that decision, the ALJ found, among other things, that the OCI investigator and the activity's chief EEO counselor and the attorney all were "representatives of the agency." That was contested in exceptions that the activity filed with the Authority. The exceptions also contended that the two-day mediation sessions were informal; that the EEO complaints were not "grievances" within the meaning of § 7114(a)(2)(A) because, among other things, the EEO complaint process had been specifically excluded from the negotiated grievance procedure; and that mediation sessions under the Alternative Dispute Resolution Act (ADR Act) are intended to be confidential. Formal discussion requirements. The Authority noted that all elements of § 7114(a)(2)(A) have to exist for there to be a formal discussion--i.e., there must be: (1) a discussion; (2) which is formal; (3) between one or more representatives of the agency and one or more unit employees or their representatives; (4) concerning any grievance or any personnel policy or practice or other general condition of employment. Formality of mediated session. Because there was no dispute that the activity engaged in a "discussion," the Authority addressed the "formality" requirement. It noted that the January 19 mediation/investigation session of the EEO complaints took place outside the employee's work area, the length of the meeting was three hours, the meeting had an agenda (two weeks before the meeting the OCI investigator sent the employee a memorandum referring to the issues in the employee's complaints, explained the general plan of the meeting, and laid out certain ground rules), and attendance was, in effect, mandatory because the employee was told if she didn't cooperate, this would be the basis for an adverse inference concerning her position. Based on the totality of facts, the Authority concluded that the meeting was "formal." In rejecting the claim that a discussion isn't formal if it makes use of mediation or more passive forms of facilitation, FLRA said the following: Even if they were communicating exclusively through the chief EEO counselor, it is clear that both the employee and the Judge Advocate General attorney were engaged in responding to each other's settlement positions, and that they were no less engaged than if they had been speaking face-to-face--as they had been speaking the previous day. A normal mediation technique is to have people in different rooms with someone going back and forth conducting the negotiation. The Union's interest and right to be represented at face-to-face negotiations of a grievance, see, e.g., GSA I, 48 FLRA at 1355-56, applies as well, in our view, to a negotiation conducted through a mediator. Under these circumstances, the [representative of the agency] was effectively present [emphasis added] at the . . . mediation session. Thus, the nature of the communication during the mediation/investigation session . . . does not undermine the overall formality [of the session]. Representatives of the agency. In finding that the attorney from the Judge Advocate General's Office was the representative of the agency, FLRA rejected the agency's observation that the attorney wasn't a representative of the agency because not a supervisor of the employee. "[N]othing in section 7114(a)(2)(A) of the Statute requires that a 'representative' be a supervisor." Since the attorney was a representative of the agency, the Authority did not find it necessary to determine whether the OCI investigator and the activity's chief EEO counselor also were representatives of the agency. Grievance. FLRA rejected the agency's claim that inasmuch as EEO matters were excluded from the scope of the negotiated grievance procedure, the meeting did not deal with a grievance within the meaning of § 7114(a)(2)(A). The statutory definition of a grievance is not dependent on the scope of a negotiated grievance procedure. Agencies and unions remain free to exclude from their grievance procedures any matters they choose. This does not preclude matters they exclude from their grievance procedures from being "grievances" under the Statute if they otherwise meet the elements of section 7103(a)(9). ADR Act Requirements. FLRA also rejected the agency's claim that the union had no right to be present because mediation procedures under the ADR Act are intended to be confidential. Section 574 of the ADR Act, titled "Confidentiality," deals with circumstances under which certain communications made during dispute resolution proceedings may not be disclosed by the parties or by the neutral outside those proceedings. An exclusive representative that is a "party" to the proceedings would presumably be bound by the nondisclosure provisions of 5 U.S.C. § 574. The focus of section 574 of the ADR Act is on the protection of the confidentiality of alternate dispute resolution proceedings and not on who may attend such proceedings. Thus, the mere presence of a union representative at a dispute resolution proceeding where all the elements of section 7114(a)(2)(A) were met, in and of itself, would not conflict with those provisions of the ADR Act. . . . Further, the fact that section 7114(b)(4) may not require an agency to disclose an EEO settlement agreement to the union does not mean that a union has no right under section 7114(a)(2)(A) to attend the formal discussion of an EEO complaint, whether that discussion results in a settlement agreement or not. Comments We report this case because an increasing number of agreements are providing for mediation of grievances. Nor is it uncommon for negotiated grievance procedures (NGP) to exclude certain matters, such as EEO complaints, from the matters covered by the NGP. This case again illustrates that formal discussions aren't limited to face-to-face meetings. FLRA has earlier found that discussions over a telephone can be formal discussions. See, in this connection, McClellan AFB, 35 FLRA No. 68, where FLRA said that "an interview is not removed from the scope of section 7114(a)(2)(A) of the Statute simply because it is conducted over the telephone instead of in person." Here, FLRA finds that mediated sessions between physically separated parties, provided all the criteria of formal discussions are met, can also be formal discussions. 54 FLRA Nos. 38, 39, 62, 63, 70
DUTY TO BARGAIN ON OFFICIAL TIME FOR LOBBYING CONGRESS Holdings The Authority distinguishes among cases involving the application of section 8015 of the 1996 DOD Appropriations Act in determining whether proposals (or FSIP orders, arbitration awards, or ULPs) providing for official time for lobbying are contrary to law. Although the Authority has held--and still holds--that official time for lobbying is a mandatory subject of bargaining (see, e.g., 52 FLRA No. 93, reported in Significant Cases No. 117, p. 11), in some recent cases, involving the application of section 8015 of the 1996 DOD Appropriations Act, it has reached a contrary conclusion. Office of the Adjutant General, Georgia Department of Defense, Atlanta, Georgia and Georgia State Chapter, Association of Civilian Technicians, BN-CA-60514, May 29, 1998, 54 FLRA No. 38 and AT-CA-60432, July 31, 1998, 54 FLRA No. 70. Headquarters, National Guard Bureau and Association of Civilian Technicians, DE-CA-60314 and -60347, May 29, 1998, 54 FLRA No. 39 and July 24, 54 FLRA No. 62. Social Security Administration and American Federation of Government Employees, 0-AR-3051, July 27, 1998, 54 FLRA No. 63. Summaries of Decisions 54 FLRA Nos. 38. Refusing to bargain on a proposal already found negotiable. The Authority, Member Wasserman dissenting, held that the agency did not commit an unfair labor practice (refusing to bargain on a proposal that is substantially identical to a proposal previously found negotiable by the Authority) when it refused to bargain on a proposal dealing with official time to lobby Congress. What set this case apart from earlier FLRA holdings that official time for lobbying Congress is a mandatory subject of bargaining was the application of section 8015 of the 1996 DOD Appropriations Act, which reads as follows: None of the funds made available by this Act shall be used in any way, directly or indirectly, to influence congressional action on any legislation or appropriation matters pending before Congress. FLRA noted that the legislation authorized no exceptions to the above prohibition and added that any conflict between the 1996 DOD Appropriations Act and the Federal Service Labor-Management Relations Statute had to be resolved in favor of the former because a "later and more specific statute usually controls over the earlier and more general one." 54 FLRA No. 39. Refusing to cooperate with a FSIP order. The agency didn't commit a ULP when it refused to implement a FSIP-imposed official time provision (which provided, among other things, for official time for lobbying) because the FSIP order violated section 8015 of the 1996 DOD Appropriations Act. 54 FLRA No. 62. Request for reconsideration granted but outcome unchanged. Although FLRA granted the General Counsel's request for reconsideration of 54 FLRA No. 39 (his brief in the earlier case, which had been timely filed, apparently got mislaid), it nonetheless reaffirmed its earlier decision. "We have given full consideration to the General Counsel's brief. Each of the arguments advanced by the General Counsel was addressed in 54 FLRA [No. 39], and we find no additional information in the . . . brief that would have altered our final decision in this case." 54 FLRA No. 63. Exception to arbitration award. In this case, involving the Social Security Administration instead of a DOD component, the Authority reaffirmed its view that official time for lobbying is a mandatory subject of bargaining when it turned down agency exceptions to an award in which the arbitrator found that the agency violated the collective bargaining agreement when it denied union requests for travel and official time to attend sessions on lobbying Congress. FLRA again said that the Hatch Act, dealing with "partisan" political activity, did not prohibit official time for lobbying and that the ban in 18 U.S.C. § 1913 had been overcome by 5 U.S.C. §§ 7102(1) and 7131(d) which, taken together, constituted an express authorization by Congress. 54 FLRA No. 70. Repudiation of agreement. Under the terms of the agreement, the union was entitled to official time for lobbying. However, when the union asked that a certain amount of official time be granted to certain of its representatives in order that they might lobby Congress, the Georgia National Guard denied its request on the ground that, among other things, the disputed contract provision violated section 8015 of the 1996 DOD Appropriations Act. FLRA dismissed the ULP, finding that since the agreement provision was unenforceable because inconsistent with section 805 of the 1996 DOD Appropriations Act, there was no "repudiation" of the agreement. Comment It thus appears that the rule (at least as far as non-DOD agencies are concerned) is that proposals dealing with official time for lobbying Congress are mandatorily negotiable (or at least not inconsistent with the Hatch Act and 18 U.S.C. § 1913) UNLESS inconsistent with a later and more specific law, such as section 8015 of the 1996 DOD Appropriations Act. DOD components were able to invoke such a law. SSA was not. Hence the different outcomes. 54 FLRA No. 69 American Federation of Government Employees, Local 3807 and Department of Energy, Western Area Power Administration, Golden, Colorado, 0-NG-2394, July 31, 1998, 54 FLRA No. 69. Holdings Proposals requiring that there be a helicopter pilot and a short-range helicopter at two different locations (instead of at only one location, as proposed by management) are section § 7106(b)(1) elective subjects of bargaining. That part of the union's proposals prescribing the location of pilots deals with "staffing patterns." That part prescribing the type and location of helicopters deals with "methods and means." The Authority earlier held that the proposals were not mandatory § 7106(b)(3) "appropriate arrangements." Summary The agency uses two short-range helicopters, located at two different locations (Bismarck, North Dakota and Huron, South Dakota), to inspect its high-voltage electric power lines. When it decided to use a single long-range helicopter, to be located at only the Huron location, the union in effect proposed the maintenance of the status quo.Its proposals are as follows:
The Authority said the four proposals were electively negotiable under 5 U.S.C. §7106(b)(1). The pilot proposals deal with staffing patterns and the helicopter proposals deal with methods and means. Because proposals dealing with § 7106(b)(1) matters are subjects on which the agency can "elect" to bargain, the Authority dismissed the union's petition. § 7106(b)(3) analysis. It took a while, however, before FLRA reached the above conclusions. Since the union in effect claimed that its proposals were mandatorily negotiable under section 7106(b)(3) (appropriate arrangements for employees adversely affected by the exercise of management's rights) and/or permissively negotiable under § 7106(b)(1) (staffing patterns, methods and means), FLRA had to first address the § 7106(a) and § 7106(b)(3) issues before it could address the § 7106(b)(1) issues, just in case the proposals might qualify as mandatory, rather than elective, subjects of bargaining. As part of this evaluation, it concluded that proposals 1 and 3, in requiring the maintenance of a pilot position at both Bismarck and Huron, interfered with the right to assign work (which includes "the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned.") Turning to the § 7106(b)(3) exception to § 7106(a), the Authority found that proposal 1 was an "arrangement" that excessively interfered with management's rights, and therefore wasn't a mandatorily negotiable "appropriate arrangement." Proposal 1 would require the Agency to maintain a pilot position at Bismarck, to pay an additional pilot, and to alter its reorganization plan. The proposal also would prevent the Agency from making its operations more efficient. Consequently, Proposal 1 would place a heavy burden on the Agency, for the sake of a single employee's retention of his current position. On balance, the Agency's interests outweigh those of the pilot at Bismarck, because the interests of a single employee in retaining his current position are not weighty enough to justify an effective prohibition of the Agency's reorganization plan. Proposal 3, on the other hand, didn't even qualify as an "arrangement," let alone an "appropriate arrangement." "[T]here is no basis in the record for concluding [] that the pilot at Huron is in danger of losing his job under the Agency's reorganization plan." Proposals 2 and 4 interfered with management's § 7106(a)(1) right to determine its organization, which includes "such matters as, [among other things], the geographical locations in which an agency will provide services or otherwise conduct its operations, and how various responsibilities will be distributed among the agency's organizational subdivisions." FLRA went on to reject the union's claim that these proposals were appropriate arrangements within the meaning of section 7106(b)(3), finding that "[p]roposals 2 and 4 do not benefit employees adversely affected by the exercise of management's rights." (Emphasis by FLRA.) Having disposed of the union's claims that the proposals were mandatory subjects of bargaining, FLRA next addressed its claim that they dealt with § 7106(b)(1) matters, which are elective subjects of bargaining. § 7106(b)(1) staffing patterns analysis. FLRA, after noting that "[t]he determination of whether, and which, positions assigned to an organizational subdivision will be filled concerns the allocation of staff[,]" found that proposals 1 and 3, in requiring the agency to continue to employ two separate pilots, are electively negotiable.
§ 7106(b)(1) methods and means analysis. FLRA first elaborated on the meaning of the terms "methods" and "means": the former refers to "the way in which an agency performs its work[;]" the latter refers to, among other things, any "instrumentality" the agency uses to perform its work. FLRA then used a two-part test to determine whether a proposal interferes with the methods and means of performing work. Under that test, the agency must first show "a direct and integral relationship between the particular method and means the agency has chosen and the accomplishment of the agency's mission." (Emphasis added.) And, second, "the agency must show that the proposals would directly interfere with the mission-related purpose for which the methods or means was adopted." (Emphasis added.) Applying the above to proposals 2 and 4, the Authority concluded that the planned use of one long-range helicopter rather than two short-range helicopters dealt with the methods by which the agency would carry out its work. Moreover, the helicophers constituted "instrumentalities" and hence a means for performing work. "As Proposals 2 and 4 would directly interfere with the mission-related purpose for which the Agency intends to utilize a single helicopter, the proposls constitute matters regarding the methods and means of performing work, and they are bargainable only at the Agency's election[.]" Comments In footnote 7, in which the Authority refers to footnote 3 in 53 FLRA No. 130, the Authority indicates that perhaps the two-part test applied to methods and means proposals is not appropriate when it is the union, not the agency, which claims that the proposal concerns methods and means. (Keep in mind that the two-part test refers to showings that an agency must make in order to support its claim that certain proposals interfere with its "rights" under § 7106(b)(1).) FLRA may be hinting that there should be no need for the union to show that its proposal(s) directly interfere with § 7106(b)(1) rights. After all, the union needn't show that a proposal interferes with a § 7106(a) right as a precondition to showing that its proposals are "appropriate arrangements" under § 7106(b)(3). Why should it demonstrate a conflict between its proposals and management's staffing patterns and methods and means rights as a precondition to a finding that the agency can "elect" to waive these rights? Part of the difficulties concerning § 7106(b)(1) stems from the fact that it not only establishes certain management rights (to determine staffing patterns, technology, and methods and means of performing work), but also in effect permits agencies to elect to waive such rights. (Contrast this with management's § 7106(a) rights. See, in this connection, 34 FLRA No. 55, where the Authority said that "[m]anagement rights under section 7106(a) cannot be waived or relinquished though collective bargaining.") However, as neither the agency nor the union asked FLRA to reconsider its existing methods and means test, FLRA applied the existing test. It is somewhat odd to say that an agency can elect to bargain on a proposal that FLRA has already determined excessively interferes with management's rights, as FLRA did regarding proposal 1. Odd, because the excessive interference balancing test is, at bottom, a merit test and a finding that a proposal excessively interferes with a management right is tantamount to saying that the proposal lacks merit. Thus, in finding that a proposal flunking the excessive interference test nonetheless deals with a § 7106(b)(1) matter, FLRA is in effect saying that the agency can elect to bargain on a proposal that FLRA has concluded lacks merit. 54 FLRA No. 68 Holdings In turning down the agency's request for reconsideration of the Authority's decision in 53 FLRA No. 110, the Authority rejected the agency's claim, based on the definition of "impasse" found in the regulations of the Federal Service Impasses Panel, that there was no impasse. "In an unfair labor practice case concerning the duty to bargain," said FLRA, "resort to third party mediation is not a prerequisite to a finding of an impasse. Section 2470.2(e) of the Panel's regulations simply does not apply in this context." FLRA also rejected the agency's claim that it was a "multi-employer" entitled to bargain separate contracts. Food and Drug Administration, Northeast and Mid-Atlantic Regions and American Federation of Government Employees, AFL-CIO, Council No. 242, BN-CA-50168, July 31, 1998, 4 FLRA No. 68. Summary In 53 FLRA No. 110, the Authority found that the activity committed an unfair labor practice when it insisted to impasse on a permissive subject of bargaining--i.e., insisting that the parties negotiate two separate agreements for employees in a single unit who were assigned to two different geographic regions. (The agency had earlier recognized a consolidated unit that included employees from New York and Newark.) As the result of a reorganization, New York and Newark were made separate administrative units of the employer. When the union wanted to negotiate a successor agreement for the consolidated unit, the employer insisted to impasse on two separate agreements being negotiated: one for the New York employees and another for the Newark employees. In 53 FLRA No. 110 FLRA had said that: The principle that the exclusive representative and agency are each a single party dictates that neither has a right to turn itself into two parties and demand separate negotiations. Rather, both the agency and the exclusive representative have a unilateral right to demand that they negotiate with each other as one entity. Variations on this right may be proposed, but they are permissive, not mandatory, variations. In its request for reconsideration the agency argued, among other things, that it had not bargained to impasse. It invoked section 2470.2(e) of the Panel's regulations, which defines impasse as "that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so . . . by use of mediation or other voluntary arrangements for settlement." Since the parties did not invoke mediation or other arrangements, the agency argued, there was no impasse. FLRA disagreed. Nothing in Part 2470 suggests that the definition contained in section 2470.2(e) serves a purpose broader than that described in the regulations: assisting in establishing the jurisdiction of the Panel over a particular case. The agency also argued that it was a multi-employer and as such could withdraw from any multi-employer arrangement and negotiate separate contracts. FLRA disagreed: The Respondent's position is premised on a fundamental misconception about the nature of multi-employer bargaining in the private sector and under INS [16 FLRA No. 19]. In the private sector, multi-employer bargaining units are established as voluntary associations of independent employers or unions that join together for purposes of collective bargaining. . . . The Respondent's bargaining unit at issue here, however, is not a voluntarily created association of employers or unions. Rather, it was created in 1979 as a consolidation of several districts represented by the same Union within Respondent's "New York Field Office." . . . This consolidation did not create a multi-employer bargaining unit; it created a single bargaining unit comprised of all employees of a single field office. Respondent's decision to reorganize its field structure in 1987 does not change the initial character of this bargaining unit and transform it into a "multi-employer" unit. . . . Rather than disengage from a multi-employer bargaining arrangement, the Respondent here is attempting to, in effect, unilaterally split one unit into separate units. Unilateral action of this sort is not permitted. Comments In 16 FLRA No. 19 the Authority described the conditions under which parties to a multi-unit or multi-employer bargaining arrangement may withdraw from such a voluntary arrangement. A party can unilaterally withdraw if its withdrawal is timely--i.e., before the onset of multi-unit negotiations. If it isn't timely and occurs after negotiations have started, withdrawal can occur "only where there is mutual consent by the affected parties or where unusual circumstances exist." TIMELINESS Ronald E. Greek v. Postal Service, DE0752970555-I-1, June 9, 1998. Holding In cases where the issues of timeliness and jurisdiction are inextricably intertwined, an appeal cannot be dismissed solely on the issue of timeliness. Summary The employee alleged that he was constructively suspended. Without making a finding of jurisdiction, the administrative judge (AJ) dismissed the appeal as untimely although the agency did not provide the appellant with a notice of appeal rights to the Merit Systems Protection Board (Board). The AJ further found that the appellant did not indicate when he learned of his potential right of appeal to the Board and therefore no basis existed for finding that the appellant acted diligently in filing his appeal after learning he could do so. The employee filed a petition for review arguing that he filed his appeal within 30 days of learning that the agency would definitely not let him return to work. In Gordy v. Merit Systems Protection Board, 736 F.2d 1505, 1508 (Fed Cir. 1984) the Board held that an untimely appeal will be excused if an agency should have given a right of appeal notice but did not, as long as the appellant "acted promptly within the allowable time limits once he was aware of the basis of his claim." Applying Gordy, the Board found that, as it appears from the record, the appellant's untimeliness should be excused because he filed his appeal 30 days after he learned that the agency definitely would not let him return to work. The Board also found that the administrative judge erred by dismissing the appeal as untimely without making a finding on jurisdiction. Popham v. Postal Service (50 MSPR 193) held that a jurisdictional determination may be avoided only if an appellant's jurisdictional allegations are taken as true and it is nevertheless clear that the appellant's delay in filing should not be excused. In other words, the resolution of the timeliness issue depends on the resolution of the jurisdictional issue. As a result, assuming that the appellant's allegations are true, Popham cannot be applied to this case. The Board held that, in cases where the issues of timeliness and jurisdiction are inextricably intertwined, an appeal cannot be dismissed solely on the issue of timeliness. Here, the issue of whether the employee filed his appeal in a timely manner was closely related to the issue of whether he was subjected to a constructive suspension. Since the administrative judge dismissed the appellant's appeal without making a finding of jurisdiction and thus did not either advise the appellant of the requirements to establish jurisdiction or afford him the opportunity to file argument and evidence on the jurisdictional issue, the Board remanded the appeal for a jurisdictional determination. LEAVE . . . FAMILY AND MEDICAL LEAVE ACT (FMLA) Jefferies v. Department of the Navy, DC0752970614-I-1, June 2, 1998. Summary The appellant was removed from his wage-grade position based on charges of excessive unauthorized absence and failure to follow leave procedures. The administrative judge upheld the removal action, finding that the agency proved its charge of excessive unauthorized absence by preponderant evidence. The charge of failure to follow leave procedures was not sustained, however, because the agency failed to show that the appellant was aware of the agency's leave procedures for an extended absence. In addition, the administrative judge found that the appellant failed to prove his "affirmative defense" for leave under the Family and Medical Leave Act of 1993 (FMLA), because he failed to submit adequate documentation to show that his daughter's illness, which he claimed was the cause of his absence, was a covered absence under FMLA. On appeal, the Board held that the administrative judge erred by finding that the appellant's FMLA claim was an affirmative defense. Citing Ellshoff v. Interior, 76 M.S.P.R. 54 (1997), where the Board found that an agency must prove its compliance with FMLA in bringing a leave related charge against an employee, the Board concluded that a claim made under FMLA should not be treated as an affirmative defense. However, considering the facts of the case and the evidence presented, the Board held that the administrative judge correctly found that the appellant was not entitled to leave under FMLA. In regard to medical evidence, the Board noted that the appellant submitted medical information, which was vague and incomplete, only after the decision notice to remove had been issued. Further, the medical documentation did not establish that the appellant's daughter suffered from a "serious health condition" as defined in section 6381(5) of title 5, United States Code, because it did not show that her illness involved inpatient care or continuous treatment by a health care provider for the period of the appellant's absence. Because the appellant did not provide the required medical documentation to the agency either prior to his removal or during the adjudication of the appeal, the Board found that the appellant was not harmed by the fact that the agency failed to inform the appellant of his FMLA entitlement. The Board sustained the removal action. Comment The Board reaffirmed its holding in Ellshoff that an agency must prove its compliance with FMLA when taking a leave related charge against an employee and that a FMLA claim is not an affirmative defense. In this case, the fact that the appellant failed to submit sufficient medical documentation throughout the removal and appeals process overrode the appellant's argument that the agency failed in its obligation to inform him of his entitlement to FMLA. Keep in mind that agencies remain obligated to inform employees of their FMLA entitlement, and we believe it is best to inform employees of FMLA as soon as possible, especially before any discretionary leave is granted. PROBATIONARY PERIOD Park v. Department of Health and Human Services, MSPB AT315H970260-I-1, May 29, 1998. Holding A new employing agency cannot be expected to know the terms of a potential employee's previous employment. Therefore, the new employing agency does not have the obligation to advise the new employee of the implications of a change in position. Summary The appellant accepted a position with another agency. During his probationary period with the new agency, he was notified that he would be removed. The appellant, however, resigned before the removal became effective. The appellant later filed an appeal alleging that his resignation was involuntary. Relying solely on evidence presented by the agency, the administrative judge dismissed the appeal, finding that he was a probationary employee and was not entitled to appeal his removal to the Merit Systems Protection Board (Board). The appellant filed a petition for review contending, among other things, that the agency had an obligation to notify him of the effect of his change of position on his Chapter 75 adverse action appeal rights. Initially, the full Board cited prior decisions such as Briggs v. National Council on Disability in finding that the agency was obligated to give the appellant prior notice of the effect of his acceptance of the position. However, the Board later found this to be incorrect. Briggs and other decisions held that an employee must receive notice from his employing agency regarding the effect of a change in tenure and appeal rights before he can accept another position within the agency that lacks the same rights. Since the employee, in this case, accepted a position with another agency, these holdings do not apply. The Board concluded that because a new employing agency cannot be expected to know the terms of a potential employee's previous employment, the employee, not the employing agency, is responsible for determining the consequences of the change of positions. The Board applied its holding in Phillips v. Department of Housing and Urban Development (44 MSPR 50) to the present case. In Phillips, the Board found that it could not waive the employee's requirement to serve a probationary period based on a lack of notice where the employee accepted employment with another Federal agency. Accordingly, the Board held that a new employing agency does not have the obligation to advise a new employee of all of the implications of a change in position. However, due to the fact that the administrative judge erred by considering only the agency's evidence, the Board remanded the appeal for a jurisdictional hearing to determine whether the appellant was an "employee" under 5 U.S.C. § 7511(a)(1)(A)(I). Comments In this case, the employee alleged that even as a probationary employee, he was entitled to appeal to the full Board because the agency failed to notify him of the effect of his change of positions. In this decision, the Board, after some consideration, ultimately declined to extend the agency obligation to afford prior notice when there is a change in appeal rights to situations where the employee accepts a position with a new agency.
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