Select Issue:
 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 INTEREST ON LIGUIDATED DAMAGES. The DC Circuit, in reversing FLRA's decision in 55 FLRA No. 43, held that the Back Pay Act--on which FLRA had relied in upholding an arbitration award of interest on untimely paid liquidated damages--limits backpay to withdrawn or reduced pay, allowances and differentials. "Liquidated damages," the court held, are not "pay, allowances and differentials." Thus an award of interest on untimely paid liquidated damages is not authorized by the Back Pay Act's exception to the Government's sovereign immunity. Social Security Administration, Baltimore, Maryland v. Federal Labor Relations Authority, No. 99-1157 (D.C. Cir. Jan. 18, 2000). OFFICIAL TIME FOR LOBBYING. The 9th Circuit upheld FLRA's decision in 54 FLRA No. 39, where the Authority found that the agency did not commit an unfair labor practice when it refused to implement a FSIP-ordered provision (which provided official time for lobbying purposes) because the provision was inconsistent with section 8015 of the 1996 DOD Appropriations Act. Association of Civilian Technicians, Silver Barons Chapter and Silver Sage Chapter v. Federal Labor Relations Authority, Nos. 98-70838 and 98-71031 (9th Cir. Jan. 10, 2000). FORMAL DISCUSSION ... GRIEVANCE FACTOR ... EEO CLAIMS. In an unpublished decision, the 9th Circuit reversed the Authority's holding in 54 FLRA No. 75, where the Authority--following the D.C. Circuit and relying on the definition of grievance given in 5 U.S.C. § 7103(a)(9)--held 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 EEO complaints. In a terse decision, with no reference to the D.C. Circuit's contrary views, the 9th Circuit held that "grievances" for "formal discussion" purposes, do not include EEO complaints. Luke Air Force Base, Arizona v. Federal Labor Relations Authority, Nos. 98-71173 and 98-71347 (9th Cir. Dec. 30, 1999). DISCRIMINATION ... REASONABLE ACCOMMODATION. The Supreme Court finds that mitigating measures must be considered when determining whether an individual is disabled. Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, June 22, 1999; Albertsons v. Kirkingburg, Inc.,119 S. Ct. 2162, June 22, 1999; and Murphy v. United Parcel Service, 119 S. Ct. 2133, June 22, 1999. FLRA DECISIONS A PAST PRACTICE AS A (b)(3) APPROPRIATE ARRANGEMENT. FLRA turned down agency exceptions to an award in which the arbitrator held that the agency violated the collective bargaining agreement (CBA) when it unilaterally changed an established past practice under which union representatives were members of panels involved in rating, ranking and interviewing employees for agency positions. Although union representation on such panels affects management's rights in the deliberative process of selection, the past practice at issue here is enforceable as a (b)(3) appropriate arrangement. "[T]he Arbitrator in this case enforced a prophylactic measure designed to prevent employees from being harmed by unfair or inaccurate ratings. Such measures come within the purview of section 7106(b)(3)." FLRA, distinguishing between the (b)(3) "excessive interference" balancing test for bargaining proposals affecting management's rights and the (b)(3) "abrogation" test applied to awards affecting management's rights, held that the award did not "abrogate" those rights. Federal Aviation Administration and Professional Airways Systems Specialists, 0-AR-3142, January 14, 2000, 55 FLRA No. 198. CONTRACT TRUMPS DUTY TO ACCOMMODATE. FLRA turned down agency exceptions to an award in which the arbitrator held that the assignment of a handicapped employee from a shift rotation position to a day shift position wasn't an accommodation under the Rehabilitation Act because of conflict with the agreement. FLRA said that "where there is a conflict between the terms of a collective bargaining agreement and an employer's obligation to reasonably accommodate a handicapped employee the agreement takes precedence." Department of Veterans Affairs, Medical and Regional Center, Togus, Maine and American Federation of Government Employees, Local 2610, 0-AR-3090, December 27, 1999, 55 FLRA No. 192. APPROPRIATE ARRANGEMENT USE OF SENIORITY IN FILLING POSITIONS. FLRA finds that a proposal requiring the agency to use seniority in making selections for certain positions from among "eligible"--i.e., "qualified"--employees who would otherwise be adversely affected by the agency's reorganization is a mandatorily negotiable section 7106(b)(3) appropriate arrangement. Moreover, "where management has authority to determine that employees are equally qualified for work assignments, a proposal requiring selection based on seniority does not affect management's rights to assign employees and assign work." American Federation of Government Employees and Department of Veterans Affairs Medical Center, 0-NG-2466, December 9, 1999, 55 FLRA No. 185. PERFORMANCE BASED ACTIONS. The Board changes its policy on requiring evidence of OPM approval of agencies' performance appraisal systems. Instead of OPM approval being a part of the agency's burden of proof, the Board will only require proof of OPM approval if an appellant alleges that there is reason to believe that an agency is not in compliance with the law. Roger G. Daigle v. Department of the Veterans Affairs, NY-0752-98-0362-1-1 and NY-531D-99-0085-1-1, December 28, 1999. ATTORNEY FEES ... JURISDICTION. A substantive jurisdictional finding is required in order to award attorney fees. Where an agency unilaterally rescinds an action and returns an employee to status quo ante, there is a rebuttable presumption that attorney fees are warranted as long as the appellant has set forth a prima facie case of jurisdiction and incurs attorney fees. Edward Joyce v. Department of the Air Force and Office of Personnel Management, PH-0752-95-0085-B-1, October 5, 1999. JURISDICTION. The one year of current continuous service in the same or similar positions required for a preference eligible claiming adverse action due process coverage must be in the year preceding the action. Alvin Preyor v. United States Postal Service, NY-0752-97-0143-I-1, September 28, 1999. COURT DECISIONS Social Security Administration, Baltimore, Maryland v. Federal Labor Relations Authority, No. 99-1157 (D.C. Cir. Jan. 18, 2000). Holding The DC Circuit, in reversing FLRA's decision in 55 FLRA No. 43, held that the Back Pay Act--on which FLRA had relied in upholding an arbitration award of interest on untimely paid liquidated damages--limits backpay to withdrawn or reduced pay, allowances and differentials. "Liquidated damages," the court held, are not "pay, allowances and differentials," and failure to pay such damages does not constitute a withdrawal or reduction of pay, allowances and differentials. Thus an award of interest on untimely paid liquidated damages is not authorized by the Back Pay Act's exception to the Government's sovereign immunity. Summary This case is an outgrowth of a couple of arbitration awards in which two arbitrators found that certain employees were improperly exempted from the overtime provisions of the FLSA and ordered, as a remedy, backpay and either interest under the Back Pay Act or liquidated damages under the Fair Labor Standards Act (FLSA), at the employees' option. Although the agency and the union reached a settlement of the unfair labor practice involving untimely implementation of the arbitration awards, they had to refer to FLRA the stipulated issue of whether interest on liquidated damages was required by law. In 55 FLRA No. 43, the Authority held that, in the circumstances of this case, interest on liquidated damages was consistent with the Back Pay Act. On appeal, the D.C. Circuit disagreed, finding that (a) liquidated damages are not pay, allowances, or differentials, and (b) the untimely payment of such damages did not constitute a withdrawal or reduction of the employees' pay, allowances, or differentials. [T]he phrase "pay, allowances, or differentials" includes only payments and benefits of the sort that an employee normally earns or receives as part [of] the regular compensation for performing his job. The statutory language, the OPM regulation [i.e., 5 CFR § 550.803], and judicial and administrative precedent, as well as the command that we construe waivers of sovereign immunity narrowly, all mandate this measured interpretation of pay, allowances, and differentials. Liquidated damages are not within the scope of this construction. Accordingly, we hold that liquidated damages are not pay, allowances, or differentials within the context of the Back Pay Act. Moreover, the court continued, "the failure timely to pay [the liquidated] damages does not constitute a 'withdrawal or reduction' of compensation as contemplated in the statute." (In this connection the court cited United States v. Testan, 424 U.S. 392 (1976), where the Supreme Court said that the Back Pay Act "was intended to grant a monetary cause of action only to those who were subjected to a reduction in their duly appointed emoluments or position.") [T]he SSA's failure to pay the Vaughn award in a timely manner clearly did not reduce the regular pay or benefits the employees were receiving in relation to their ongoing employment, nor did it reduce the grade, as Testan requires. Therefore, regardless of whether liquidated damages fall within the scope of pay, allowances, and differentials, according to the Supreme Court's instruction in Testan, the SSA's inaction in this case does not represent a withdrawal or reduction under the Back Pay Act. OFFICIAL TIME FOR LOBBYING Association of Civilian Technicians, Silver Barons Chapter and Silver Sage Chapter v. Federal Labor Relations Authority, Nos. 98-70838 and 98-71031 (9th Cir. Jan. 10, 2000). Holding The 9th Circuit upheld FLRA's decision in 54 FLRA No. 39, where the Authority found that the agency did not commit an unfair labor practice when it refused to implement a FSIP-ordered provision (which provided official time for lobbying purposes) because the provision was inconsistent with section 8015 of the 1996 DOD Appropriations Act. Summary In 54 FLRA No. 39, the Nevada Air National Guard and the Nevada Army National Guard disapproved, among other things, an official-time-for-lobbying provision that had been ordered by the Federal Service Impasses Panel. The ULP complaint that followed was dismissed by FLRA insofar as it involved the Panel-imposed provision on official time for lobbying purposes. The Panel-ordered provision, said FLRA, was contrary to section 8015 of the 1996 DOD Appropriations Act. (That section 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 the Congress.") Relying on its reasoning in 54 FLRA No. 38, the Authority said that the aforementioned legislation "does not authorize any exceptions to this prohibition, and there is no basis for the Authority to create an exception that Congress has not stated." It there added that "canons of statutory construction provide that, where two statutes conflict, the later and more specific statute usually controls over the earlier and more general one. . . . Thus, the 1996 DOD Appropriations Act prevails over the [Federal Service Labor-Management Relations] Statute." In a brief decision, the 9th Circuit affirmed FLRA's decision: Although it is disfavored as a matter of policy, repeal by implication can be found where Congress's intent to replace the existing statute is unambiguous. . . . Here, Congress expressed a clear intent to repeal sections 7131 and 7102 of the FSLM RA as they are read to allow DOD employees to use official time to lobby Congress. . . . Therefore, we conclude that the Union's proposal conflicted with section 8015 and the Agency was not required to include it in the collective bargaining agreement. The decision of the FLRA is AFFIRMED. FORMAL DISCUSSION ... GRIEVANCE FACTOR ... EEO CLAIMS Luke Air Force Base, Arizona v. Federal Labor Relations Authority, Nos. 98-71173 and 98-71347 (9th Cir. Dec. 30, 1999). Holding In an unpublished decision, the 9th Circuit reversed the Authority's holding in 54 FLRA No. 75, where the Authority--following the D.C. Circuit and relying on the broad definition of grievance given in 5 U.S.C. § 7103(a)(9)--held 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 EEO complaints. In a terse decision, with no reference to the D.C. Circuit's contrary views, the 9th Circuit cited IRS, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983) and held that "grievances" for "formal discussion" purposes, do not include EEO complaints. Summary In 54 FLRA No. 75 the Authority found, among other things, that a meeting with agency representatives concerning the employee's two formal EEO complaints constituted a formal discussion. In connection with that finding, 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 involve a "grievance." FLRA said the following: 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). That decision was appealed to the 9th Circuit which, relying on its decision in IRS, Fresno Service Center v. FLRA, 706 F.2d 1019 (9th Cir. 1983), said the following in reversing the Authority in its unpublished decision: Under IRS, Fresno Serv. Ctr. v. FLRA, 706 F.2d 1019, 1024 (9th Cir. 1983), "grievances" within the meaning of Section 7114(a)(2)(A) do not include [the employee's] complaints because they were brought pursuant to EEOC procedures, which are "discrete and separate from the grievance process to which 5 U.S.C. [§] . . . 7114 [is] directed." The fact that the collective bargaining agreement explicitly excludes discrimination claims from the grievance procedure also suggests that these claims are not "grievances." . . . Because the January 19 meeting did not concern "grievances" within the meaning of Section 7114, the meeting did not satisfy the fourth element of Section 7114. The union therefore had no right of representation at the meeting. [Emphasis added.] Comments This is an especially terse decision. The court doesn't even trouble to describe the petitioner's claims or acknowledge--let alone respond to--the D.C. Circuit's and the Authority's contrary views. (There is no indication that it reexamined its earlier Fresno decision in light of the D.C. Circuit's remarks about that decision in NTEU v. FLRA, 774 F.2d 1181 (DC Cir. 1985).) And what is one to make of its remark that the fact that the scope of the negotiated grievance (NGP) procedure excludes discrimination complaints "suggests" that the EEO claims are not grievances? Is the 9th Circuit saying that matters excluded from the scope of the NGP aren't "grievances" for "formal discussion" purposes? If so, why "suggests" rather than "establishes"? Or is the 9th Circuit saying something narrower: namely, that claims not excluded from the NGP but which are nonetheless prosecuted under statutory procedures aren't grievances for formal discussion purposes? Is it the employee's election of forum rather than the defined scope of the NGP that is determinative? It has been reported that the Authority has asked the 9th Circuit to grant its request for an en banc review, presumably as a prelude to a request that the Supreme Court resolve an apparent conflict in the circuits. DISCRIMINATION-EEO ... REASONABLE ACCOMMODATION Sutton v. United Air Lines, Inc., 119 S. Ct. 2139, June 22, 1999; Albertsons v. Kirkingburg, Inc., 119 S. Ct. 2162, June 22, 1999; and Murphy v. United Parcel Service, 119 S. Ct. 2133, June 22, 1999. Holdings
Summary Plaintiff Sutton and her sister were severely myopic pilots, with uncorrected vision of 20/200. Corrected, with glasses or contact lenses, their vision was 20/20. Both were denied employment as "global airline pilots" with United Airlines because they did not meet the company's standard requiring uncorrected vision of 20/100, and this suit followed. The district court found the sisters were not disabled under the law, since their corrected vision was normal. The court also found they had not established they were regarded as disabled simply by showing they were found disqualified for a particular position. The Tenth Circuit affirmed this reasoning. Hallie Kirkingburg was a truck driver for Albertson's, Inc. When he was hired in 1990, the examining doctor erroneously certified that he met Department of Transportation (DOT) vision standards, although in fact he did not because he had monocular vision. The error was discovered in 1992 and the company fired him for failure to meet the DOT standard. It later refused to rehire him, even though DOT gave him a waiver to the standard under a new experimental program. The district court found he was properly disqualified for failure to meet the DOT standards, regardless of the waiver program. The Ninth Circuit reversed, finding that he was a disabled person under the law, and the employer could not ignore the waiver program in relying on the DOT standards. Petitioner Murphy was a mechanic. He was hired by United Parcel Service (UPS) into a position that required a commercial driver's license. He was erroneously certified as meeting DOT standards, despite his high blood pressure. When the error was discovered, he was fired, and sued. The district court found for the employer and the Tenth Circuit agreed, citing to its prior decision in Sutton. The court found he was not disabled, since his doctor testified that he functioned normally in every day activities when medicated. The Supreme Court accepted these cases to clarify disability discrimination law and resolve a split in the circuits. Both the EEOC and the Justice Department had issued interpretive guidance stating that a determination of whether an individual is disabled under the law should be made without regard to mitigating measures. Most circuits ruling on the issue followed this approach. The Court, however, agreed with the Tenth Circuit that an impairment does not limit a life activity if it is corrected. First, it found that the definition of disability requires that the impairment "substantially limits" one or more major life activities. This wording suggested to the Court actual--not hypothetical-- impairment. It also found that ignoring the effects of mitigating measures would defeat the long-established requirement for individualized assessment. Finally, it noted that in the legislative history, Congress referred to 43,000,000 Americans with one or more disabilities. This number appeared to have been derived from a functional approach to determining disability, and clearly could not include, for instance, the 100,000,000 people who have been elsewhere identified as needing corrective lenses to see properly. Applying this holding to the lead Sutton case, the Court found the sisters were not actually disabled. Neither had they proved that they were regarded as disabled, merely because they were found physically disqualified for a job. The Court then rejected their claim that "global airline pilot" is a "class of jobs" for the purpose of finding them "substantially limited" in the life activity of working. They could continue to work as pilots, albeit not in the particular job they wanted. The same reasoning applied to Mr. Murphy, who could continue to work as a mechanic in any job that did not require a commercial driver's license. Mr. Kirkingburg's case presented two special features. Of most significance, the mitigating measure in his case was not external, but consisted of his body's own unique compensations, which allowed him to drive safely despite his monocular vision. Second, after discharge, he was able to get a waiver of the DOT standard at issue. The Court found nothing in the experimental waiver regulations that "disentitles an employer like Albertsons to insist on the basic standards." Comment Many have expressed extreme dismay with these decisions, claiming that they absurdly narrow the coverage of the statute. In fact, they do deny coverage to individuals who cannot show that their day-to-day functioning is substantially limited because of an impairment. They also subject petitioners to a more rigorous burden of proof when claiming they are regarded as disabled. It is worth noting, however, that very few precedential decisions of the Merit Systems Protection Board have so far even cited Sutton, and none of the outcomes have yet turned on these controversial holdings. 55 FLRA No. 198 Holding FLRA turned down agency exceptions to an award in which the arbitrator held that the agency violated the collective bargaining agreement (CBA) when it unilaterally changed an established past practice under which union representatives were members of panels involved in rating, ranking and interviewing employees for agency positions. Although union representation on such panels affects management's rights in the deliberative process of selection, the past practice at issue here is enforceable as a (b)(3) appropriate arrangement. "[T]he Arbitrator in this case enforced a prophylactic measure designed to prevent employees from being harmed by unfair or inaccurate ratings. Such measures come within the purview of section 7106(b)(3)." FLRA, distinguishing between the (b)(3) balancing test for negotiability issues and the (b)(3) "abrogation" test applied to awards affecting management's rights, held that the award did not "abrogate" those rights. Federal Aviation Administration and Professional Airways Systems Specialists, 0-AR-3142, January 14, 2000, 55 FLRA No. 198. Summary This case is related to a companion case, 55 FLRA No. 157 (not reported in Significant Cases), where FLRA held that the agency repudiated an MOU that provided that a union representative could be included on panels that conduct selection interviews regarding details, temporary assignments over 90 days, and position vacancies. It there refused to address the agency's claim that the MOU interferes with management's rights because that particular argument was made for the first time in the agency's exceptions to FLRA. In the case at bar FLRA focused on the change in the national, not local, policy regarding union participation on selection panels. When FAA's Director for Human Resources Management learned that certain local FAA facilities provided for union participation on selection panels for bargaining unit positions, he sent a note to agency officials saying that "union representatives are not to participate in the selection process by serving as members of either rating and ranking panels or interview panels for any Agency positions." A copy of that note was sent to the Union, which in turn filed a national grievance. When the matter was referred to arbitration, the arbitrator, finding that the agency had violated a past practice, held that the agency had violated Article 70 of the agreement (which required that prior notice of the proposed change be given to the union). As a remedy, the arbitrator ordered a return to the status quo ante. The agency filed exceptions, alleging that the award violated management's section 7106 rights and that the arbitrator had exceeded his authority. Although FLRA disagreed with the arbitrator's view that union participation on selection panels didn't interfere with management's rights to assign work and make selections, that didn't end the matter. When an arbitrator enforces a past practice as part of the collective bargaining agreement, we will apply the BEP [Bureau of Engraving and Printing, 53 FLRA No. 21] framework . . . . Here, Article 70 of the parties' agreement provides that "[i]n the event [the Agency] proposes to change a . . . practice . . . [the Agency's shall provide the Union written notice of the proposed change"; and "[i]n the event the Union submits timely written proposals[,]" the Agency shall "discuss any proposal the Union may have to amend or change the [A]gency proposal" prior to implementing the proposed change. Under Prong I of the BEP framework, FLRA first determines whether the award provides "a remedy for a violation of either applicable law, within the meaning of section 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to section 7106(b) of the Statute." FLRA concluded that the arbitrator had enforced a "prophylactic measure" intended to prevent employees from being harmed by unfair or inaccurate ratings. That is, the arbitrator had enforced an "arrangement." FLRA noted that this case--unlike negotiability disputes involving the "excessive interference" balancing test--involved the application of the "abrogation test." It found that the past practice in this case didn't "preclude" the agency from exercising its rights and thus did not "abrogate" management's rights to assign work and select employees. Under the Arbitrator's interpretation, the Agency's past practice does not preclude the Agency from exercising its right, or from choosing not to exercise its right, to assign work and select employees. Rather, the Union's presence on selection panels only gives the Union the right "not to be excluded from the selection process[.]" With respect to Prong II, in which the Authority determines whether the remedy awarded reflects a reconstruction of what management would have done if management had not violated the agreement, the Authority said the following: The Arbitrator based his remedy on a finding that Article 70 required the Agency to notify the Union of its intention to change the past practice, and give the Union an opportunity to bargain over the change. We find that, had the Agency acted consistent with its obligations under Article 70, it would have notified the Union of its intention to change the past practice, and bargained with the Union prior to implementing the proposed change. The award reflects a reconstruction of the situation that would have existed had the Agency not acted contrary to its contractual obligations. Thus, we find that the award satisfies Prong II of BEP. FLRA also rejected the agency's "exceed authority" claim, noting that because the parties had not stipulated the issues to be decided, the arbitrator had to formulate the issues. [Compare with 55 FLRA No. 185, reported elsewhere in this issue of Significant Cases, involving an arbitrator's interpretation of an arguably unambiguous joint stipulation.] "In the absence of a stipulation by the parties of the issue to be resolved, an arbitrator's formulation of the issues is given substantial deference." Comments This case--which makes clear that section 7106(b) exceptions apply not only to contract provisions, but also to established practices--also illustrates that one cannot conclude that a practice that interferes with a management right is illegal: one must also ask whether such a practice might pass muster as an appropriate arrangement under the abrogation test. Here, the case law indicated that union involvement in agency-established panels could be appropriate arrangements. The cases cited by the agency that justified unilateral termination of illegal practices involved violations of laws and regulations other than section 7106(a), which happens to have some very broad exceptions in section 7106(b). When making a management right argument, one must keep in mind that there are very important section 7106(b) exceptions to those rights. Department of Veterans Affairs, Medical and Regional Center, Togus, Maine and American Federation of Government Employees, Local 2610, 0-AR-3090, December 27, 1999, 55 FLRA No. 192. Holding In a split decision (Member Cabaniss dissenting), FLRA turned down agency exceptions to an award in which the arbitrator held that the assignment of a handicapped employee from a shift rotation position to a day shift position wasn't an accommodation under the Rehabilitation Act because of conflict with the agreement. FLRA said that "where there is a conflict between the terms of a collective bargaining agreement and an employer's obligation to reasonably accommodate a handicapped employee the agreement takes precedence." Summary The boiler room at the facility, which operated around-the-clock on three shifts, was staffed by five boiler room operators, all of whom worked the three shifts on a rotating basis. In order to accommodate one of the operators, who suffered from diabetes and sleep apnea, management removed the operator from the shift rotation and permanently placed him on the day shift. Because this change meant that there'd be one less day shift position into which the other operators could rotate, they were required to work evening and night shifts more frequently and the period of rotation was decreased from ten days to eight. Two years later the union filed a grievance, claiming that the change adversely affected the remaining operators and violated a long practice--that had been incorporated into the contract--of rotating the shifts fairly and equitably. The unsettled grievance was referred to arbitration. There was a joint stipulation which reads, in part, as follows: "[D]id the Agency violate the contract and/or the law in the way it made its determination that Mr. R. was handicapped within the meaning of the Rehabilitation Act? If so, what shall be the remedy." The arbitrator rejected the agency's claim that the grievance was untimely, finding that it wasn't clear that the union knew that the shift assignment was permanent. Moreover, "it was arguable," said the arbitrator, "that the subject matter grieved--the altered shift rotation--is in the nature of a 'continuing violation' and need not be filed" within the contract's time limits. Despite the joint stipulation of the issues, the arbitrator "interpreted" that stipulation in light of the union's statement of the grievance at each step of the grievance procedure, and the agency's responses. She consequently formulated the issue as follows: "whether a medical accommodation that adversely impacts other employees and changes a long time practice implicitly incorporated into the parties' collective bargaining agreement violates or supersedes the parties' agreement." Relying on several court decisions supporting the view that accommodations for disabled employees cannot violate a contract, she found the accommodation violated the agreement and ordered the agency to "restore the employees to the longstanding shift rotation schedule[.]" In a split decision (Member Cabaniss dissenting), the Authority rejected the agency's exception claiming that the arbitrator had exceeded her authority by not limiting her award to the issues stipulated by the parties. "[W]e accord an arbitrator's interpretation of a stipulation of issues the same substantial deference that we accord an arbitrator's interpretation and application of a collective bargaining agreement. . . . Read in context of the record as a whole, we conclude that the statements of the Arbitrator reflect her interpretation, not rejection, of the stipulation of the parties." Member Cabaniss disagreed with this determination, finding instead that the arbitrator exceeded her authority. Although acknowledging that FLRA defers to an arbitrator's interpretation of the issues stipulated by the parties, Member Cabaniss found the arbitrator's interpretation of the stipulated issues implausible. "[T]he issues resolved by the Arbitrator," said Member Cabaniss, "do not necessarily arise from the stipulated issues." She said that when an arbitrator finds that an issue stipulated by the parties is too narrow to resolve the entire dispute, "it is incumbent upon the arbitrator to inform the parties of that conclusion in order to get authorization to resolve the dispute fully." See Elkouri and Elkouri, How Arbitration Works, 322-23 (5th ed. 1997). In the absence of such authorization, the arbitrator is confined to the narrowly stipulated issues. FLRA also rejected the agency's claim that the award violated the Rehabilitation Act. The well-settled rule in cases arising under the Rehabilitation Act is that where there is a conflict between the terms of a collective bargaining agreement and an employer's obligation to reasonably accommodate a handicapped employee the agreement takes precedence. By enforcing unit employees' rights under the collective bargaining agreement to a rotating shift schedule, notwithstanding the Agency's claim that it is obligated to accommodate Mr. R's handicapping condition by permanently assigning him to the day shift, the Arbitrator's award properly enforced the parties' agreement and, therefore, did not violate the Rehabilitation Act. It disposed of the agency's claim that the award violates management's rights by noting that "proposals or provisions that prescribe the manner in which equally qualified employees will be assigned to shifts constitute procedures under section 7106(b)(2)." Here, all the boiler room operators are equally qualified and the work they perform is the same. The arbitrator's restoration of the shift rotation system "constitutes the enforcement of a procedure under section 7106(b)(2)." Moreover, the restoration of the previous shift rotation policy "constitutes a reconstruction" of what management would have done if it had not violated that policy. Thus the award satisfied both prongs of the BEP framework that FLRA applies to awards affecting management's rights. Nor was the award inconsistent with 29 CFR 1614.203(c). Noting that the agency didn't contend that the regulation imposes more stringent requirements that the Rehabilitation Act, with which it is co-extensive, and citing Hurley-Bardige v. Brown, 900 F. Supp. 567, 571 (D.C. Mass. 1995) (employers' obligation to accommodate under the Act is not absolute), FLRA held that "[a]n agency is not required to provide reasonable accommodation where such accommodation is precluded by a collective bargaining agreement." Finally, FLRA rejected the agency's claim that the award was inconsistent with public policy. "[U]nder the Rehabilitation Act, an employer cannot be required to accommodate a handicapped employee by restructuring a job in a manner which would usurp the legitimate rights of other employees in a collective bargaining agreement." Comment An interesting feature of this case is the arbitrator's use of the arguments and responses made at the pre-arbitration steps of the negotiated grievance procedure as the basis for "interpreting" a joint stipulation that didn't seem to reflect those earlier arguments and responses. A principle that might be inferred from this decision is that joint stipulations inconsistent with the arguments and concerns expressed in the pre-arbitration steps of the negotiated grievance procedure are inherently ambiguous and require "interpretation"--interpretation, moreover, in light of the positions taken in those pre-arbitration steps. Given the explicitness of the joint stipulation, Member Cabaniss found the arbitrator's interpretation implausible. The majority, on the other hand, found that the arbitrator's interpretation, to which FLRA owes substantial deference, "is not irrational, implausible, or unfounded or in disregard of the stipulation." 55 FLRA No. 185 Holding FLRA held that a proposal requiring the agency to use seniority in making selections for certain positions (which management decides to fill) from among "eligible"--i.e., "qualified"--employees who would otherwise be adversely affected by the agency's reorganization is a mandatorily negotiable section 7106(b)(3) appropriate arrangement. Moreover, "where management has authority to determine that employees are equally qualified for work assignments, a proposal requiring selection based on seniority does not affect management's rights to assign employees and assign work." American Federation of Government Employees and Department of Veterans Affairs Medical Center, 0-NG-2466, December 9, 1999, 55 FLRA No. 185. Summary When informed of the agency's plan to consolidate and centralize contracting offices, the union--concerned that this change would cause employees currently working in dispersed offices to lose their positions unless they are hired to work in the central office--proposed that the agency make selections for the contracting specialist positions from among "eligible" employees, based on seniority (here, service computation date). The Authority, noting that neither the union nor the agency explained what meaning was to be assigned to the term "eligible," construed the term to mean "qualified." It cited 5 CFR § 335.103(b)(3) as support for its interpretation. [A]n Office of Personnel Management regulation, 5 C.F.R. § 335.103(b)(3), which concerns internal agency promotion and placement plans, uses "eligible" as a synonym for "qualified." The regulation states that in order to be "eligible for promotion or placement, candidates must meet the minimum qualification standards. . . ." See also U.S. Department of Housing and Urban Development, Louisiana State Office, New Orleans, Louisiana and American Federation of Government Employees, Local 3475, 53 FLRA 1611, 1619-20 (1998) (5 C.F.R. § 335.103(b)(3) requires finding that an applicant meets the minimum qualifications for a position in order to be eligible for promotion and placement); 5 U.S.C. § 3313 (&rlquo;The names of applicants who have qualified in examinations for the competitive service shall be entered on appropriate registers or lists of eligibles[.]" As the proposal concerns the placement of employees, which is also the subject of the regulation, and as the record provides no basis for finding otherwise, we construe "eligible" to mean "qualified." Although the union did not dispute the agency claim that the proposal would affect management's rights to determine its organization and to hire and select, it contended that the proposal was a mandatorily negotiable section 7106(b)(3) appropriate arrangement. The Authority agreed. It noted, in this connection, that in 30 FLRA 41, 43 (1987) it found that proposals requiring management to fill vacancies with employees who have lost their jobs, or are threatened with losing their jobs, are section 7106(b)(3) exceptions to the agency's right to select. It also held that the proposal was "tailored" to ameliorate the adverse effects of the reorganization only on employees who would otherwise lose their jobs. Applying the excessive interference balancing test, FLRA concluded that the effect of the proposals on management's rights are not significant. The proposal, among other things, would not require the agency to fill positions it doesn't intend to fill, or require the agency to fill positions with employees not qualified for the positions. The benefits to employees, on the other hand, are significant. "Put simply, the proposal would allow employees who might otherwise lose their jobs to continue their employment with the Agency, at least for 1 year." With respect to the use of seniority in making selections, FLRA noted that it has already held that "where management has authority to determine that employees are equally qualified for work assignments, a proposal requiring selection based on seniority does not affect management's rights to assign employees and assign work." [Emphasis added.] See American Federation of Government Employees, Local 1138, Council 214 and U.S. Department of the Air Force, Air Force Materiel Command, 645 Air Base Wing/CE, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1725, 1730 (1996). Comment It should be noted that those decisions where FLRA has held that the use of seniority as a decision-making criterion does not affect management's rights, the rights involved in those decisions were the assignment of employees and assignment of work--usually to tours of duty or to details. Moreover, the seniority criterion in those cases applied to equally qualified employees (as determined by management). In this case, (a) seniority is used to fill vacancies and the rights involved are, among other things, the rights to hire and to select, and (b) the seniority criterion applies to "qualified" employees (also as determined by management). PERFORMANCE-BASED ACTIONS Roger G. Daigle v. Department of the Veterans Affairs, NY-0752-98-0362-1-1 and NY-531D-99-0085-1-1, December 28, 1999. Holding MSPB held that it will require proof of OPM approval of an agency's performance appraisal system only if an appellant alleges that there is reason to believe that an agency is not in compliance with the law. Summary The agency proposed appellant's removal based on charges of threat to inflict bodily injury and disrespectful conduct toward agency personnel. The agency also denied appellant's within-grade increase (WGI). On appeal, the administrative judge reversed the removal action because the agency failed to prove both of the misconduct charges. He reversed the WGI action because the agency did not present evidence to establish that its performance appraisal system had been approved by OPM. The full Board upheld the administrative judge's decision to reverse the agency's removal action. It agreed with the administrative judge's findings that the threat charge did not meet the Metz criteria. With respect to charge of disrespectful conduct, the Board noted that it considers the context in which it occurs. In this case, abusive comments about other agency employees were made during an EEO counseling session. The Board said that given the fact that these sessions are a semi-confidential means through which employees complain about the conduct of other agency personnel, and complainants are likely to be emotionally distraught when they are reporting perceived discrimination to the EEO counselor, these sessions are one of the contexts in which it is reasonable to afford employees more leeway with regard to their conduct than they might otherwise be afforded in other employment situations. Thus, the Board agreed with the administrative judge that the agency failed to prove the disrespectful conduct charge. The Board, however, sustained the agency's decision to withhold the WGI and took the opportunity to revisit its longstanding requirement that agencies submit evidence of OPM approval of their performance approval systems. The Board stated that although the agency's burden of proof on OPM approval was an important element in the early implementation of the CSRA, twenty years have now passed since its enactment. It said that there is no statutory requirement for renewing approval of an agency's system once it is in place, and that it is unaware of any agency which has not received OPM approval of its performance appraisal system. Therefore, the Board concluded that it is no longer necessary to perpetuate an outmoded paperwork requirement (Vice Chair Beth Slavet disagreed with this holding in a concurring opinion). The Board held, however, that if an appellant alleges that there is reason to believe that an agency is not in compliance with the law, it may require an agency to submit evidence that it has received OPM approval of its performance appraisal system. Comments The Board has finally decided to change its longstanding practice of requiring agencies to submit evidence of OPM approval of its performance appraisal system. In the past, agency actions have been reversed in cases where the agency's only mistake was to fail to submit the piece of paper that showed OPM approval. The Board now admits that this is an "outmoded paperwork requirement." On the issue of proving disrespectful conduct, it is also worth noting that the Board put EEO counseling sessions into the same category as EAP counseling, sexual harassment training sessions where comments are encouraged, and presenting grievances as contexts in which it is reasonable to afford employees more leeway with regard to their conduct than they might otherwise be afforded in other employment situations. ATTORNEY FEES ... JURISDICTION Edward Joyce v. Department of the Air Force and Office of Personnel Management, PH-0752-95-0085-B-1, October 5, 1999. Holdings A substantive jurisdictional finding is required in order to award attorney fees. Where an agency unilaterally rescinds an action and returns an employee to status quo ante, there is a rebuttable presumption that attorney fees are warranted as long as the appellant has set forth a prima facie case of jurisdiction and incurs attorney fees. Summary In 1998, the Office of Personnel Management (OPM) intervened in a case involving an award of attorney fees to an appellant who refused to come to work after being ordered to do so. The appellant argued that a lack of accommodation made it unsafe for him to work. On appeal to the Merit System Protection Board (MSPB), the appellant argued that he was either constructively suspended or removed from his position. Prior to a hearing, the agency provided reasonable accommodation and gave the appellant back pay for the period of time he had refused to work. The administrative judge dismissed the appeal and the appellant's request for attorney fees, finding no Board jurisdiction over the matter. The full Board reversed the initial decision and held that: (1) it need not make a determination of jurisdiction in order to award fees but need only determine whether an appellant has set forth a prima facie case of jurisdiction, and (2) it need not analyze the case to determine whether an award of fees is warranted "in the interest of justice," but instead established a rebuttable presumption that fees are warranted in cases where the appellant has established a prima facie case of jurisdiction and the agency unilaterally rescinds its action. OPM argued in its intervention brief that the Board made three errors of law: (1) the Board exceeded its authority and ignored the requirements of 5 USC 1204(a), that provides that the Board issue decisions only in those cases in which it has jurisdiction; (2) the Board failed to apply the existing legal standard in its determination of whether the appellant was a prevailing party; and (3) the Board created a new standard of proof that where an agency has rescinded its action, there is a rebuttable presumption that attorney fees are warranted in the interest of justice unless the agency can prove otherwise. In its October 5, 1999 decision, the Board issued a majority opinion holding that a substantive jurisdictional finding is required in order to award attorney fees. The Board noted its regret at having to overturn such a recent precedent, but agreed with OPM's arguments that MSPB did not have the right to expand the authority granted to the Board by Congress in 5 USC 1204(a)(1) to "take final action" on appeals. Having overturned its earlier holding in Joyce v. Department of Air Force, 74 MSPR 112 (1997), the Board returned to the precedent set in Shaw v. Department of Navy, 39 MSPR 586 (1989) that no attorney fees can be awarded absent a finding of Board jurisdiction. However, the Board did not concur with OPM's arguments that an appellant cannot be a prevailing party unless he or she has obtained relief through an enforceable judgement, consent decree, or settlement. While recognizing that the Supreme Court established this definition in the case of Farrar v. Hobby, 506 U.S. 103 (1992), the Board reviewed several circuit court decisions that interpreted Farrar broadly and adopted this broader view as its own. These court decisions noted the existence of the "catalyst" theory of recovery (if an appellant receives all or part of the relief being requested before a decision is rendered, attorney fees may still be granted if the appellant can prove that the instigation of the appeal prompted the agency to grant the relief). In its interpretation of the Court's holding, the Board noted that this "catalyst theory of recovery" pre-existed the Court's holding in Farrar and that the Supreme Court elected not to strike down this theory, thereby justifying the courts' and the Board's continued reliance on the theory. Therefore, the Board rejected OPM's position that attorney fees cannot be awarded where no enforceable judgement has been issued. The Board went on to clarify its position on the rebuttable presumption argument. It held here that "where the Board has jurisdiction over the appeal, the agency has unilaterally rescinded its action, i.e., returned the appellant to the status quo ante, and the appellant has incurred attorney fees, there is a rebuttable presumption that fees are warranted in the interest of justice under the 'knew or should have known' Allen category." (See Allen v. U.S. Postal Service, 2 MSPR 420 (1980).) Although it recognized OPM's argument that such a holding reverses the normal burden of proof and places the agency in the position of having to argue that fees are not warranted, the Board found this burden to be a reasonable one for the agency under the theory that the rescission of the action demonstrated that the agency knew or should have known that it would not prevail. OPM has filed a petition for review with the U.S. Court of Appeals for the Federal Circuit. The court has not acted on OPM's petition at this time. JURISDICTION Alvin Preyor v. United States Postal Service, NY-0752-97-0143-I-1, September 28, 1999. Holding The 1 year of current continuous service in the same or similar positions required for a preference eligible claiming adverse action due process coverage must be in the year preceding the action. Summary The appellant, a preference eligible, was a manager with the Postal Service who appealed his removal for misconduct to the Board. At the initial level, the administrative judge sustained the agency's charge, but mitigated the penalty. Upon review, the agency argued for the first time that the Board was without jurisdiction because the appellant did not have the required 1 year of current continuous service in the same or similar positions at the time of his removal. The appellant acknowledged that he had served less than a year in the position from which he was removed. He argued, however, that, as a preference eligible, he was not required to serve a probationary year in the manager position to gain coverage, since he had previously completed that requirement in his clerk job. He relied on both Title 5 and the Veterans Preference Act of 1944 (VPA) to support his position. The Board initially found that any party or the Board itself may raise jurisdiction at any time. It then dispensed with the appellant's Title 5 argument, noting that a statute must be interpreted in a way that gives effect to all of its parts. To say that the "1 year of current continuous service" required by 5 U.S.C. § 7511(a)(1)(B) may have been completed in the past would render the word "current" inoperable. This interpretation is consistent with applicable OPM regulations, which the Board found are entitled to deference. The Board next turned to the appellant's contention that its jurisdictional interpretations since the Civil Service Reform Act (CSRA) have "gutted" the rights guaranteed veterans by the VPA. Citing to pre-CSRA Court of Claims cases, and to the legislative history of the CSRA itself, the Board illustrated a shared understanding between Congress and the courts that a veteran entering a new appointment may be required to serve a new probationary period. Service without a break in a prior position may be counted towards the 1 year requirement if the position was "the same or similar." The Board therefore remanded the case to allow the parties to present evidence and argument on this issue. Comment There are differences between the competitive and excepted service that lead to confusion in discussions of "probation." First, 5 U.S.C. § 3321, the statute addressing probation upon initial appointment, explicitly applies only to the competitive service, as do the implementing regulations at 5 CFR Part 315. As the Board points out, the legislative history shows that Congress intended rights and coverage provisions for excepted service employees to be comparable, and third parties have honored that intent. However, an employee in the competitive service who has completed probation is not required to serve probation anew upon entering a new position, however different, through merit promotion or reassignment. Only if the new appointment is made from an OPM-authorized competitive certificate can a new probationary period be required. This distinction does not exist in the excepted service where, by definition, there are no OPM certificates. Any new appointment will start the coverage timer at zero unless the new position is "the same or similar" to the prior one, and there has been no break in service of a workday.
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