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 Number 123 March 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 WHISTLEBLOWING ... INDIVIDUAL RIGHT OF ACTION. The Merit Systems Protection Board (MSPB, Board) may dismiss an appeal as moot if the appealable action is canceled or rescinded by the agency. However, if the threat of personnel action still reasonably exists, a claim of reprisal for whistleblowing is not necessarily rendered moot when an agency rescinds its formal proposal notice. Ray L. Kagel, Jr. v. Department of the Army, No. 96-3385, (Fed. Cir. October 15, 1997). FLRA DECISIONS EXCEPTIONS TO AWARDS ... REMANDING PORTIONS OF AWARDS FOR NECESSARY FACTUAL FINDINGS. FLRA announces that it intends to remand those portions of arbitration awards "that are challenged by . . . exceptions and that fail to contain the factual findings necessary to determine whether the arbitrator's legal conclusions are consistent with the applicable standard of law." It also reminds arbitrators that "the standards and burdens of proof found in law, rule, or regulation extend to arbitrators. . . . [A]n arbitrator's failure to apply the prescribed standard will constitute a basis for finding an award deficient." Because the award at issue had no discussion or analysis of a prohibited personnel practice (PPP) allegation, FLRA remanded the matter to the parties for resubmission to the arbitrator. National Federation of Federal Employees, Local 1437 and Army Research, Development and Engineering Center 0-AR-2809, March 31, 1998, 53 FLRA No. 152. ATTORNEY FEES ... SUCCESS FEE ... CLEAR, REASONED EXPLANATIONS. When the union, on behalf of grievants, incurred an obligation to pay attorney fees to a law firm, those fees were incurred by the grievants within the meaning of section 7701(g)(1). Given that the law firm offered two rates keyed to whether it failed or succeeded, FLRA held that since the grievants prevailed, they incurred the "success fee." However, the arbitrator's award of hearing expenses was deficient because it did not provide a clear and reasoned explanation of why the expenses were recoverable. ATTORNEY FEES ... ATTORNEY-CLIENT RELATIONSHIP ... PARALEGAL FIELD ... REPRESENTATIVE UNDER SUPERVISION OF NATIONAL COUNSEL. FLRA held that the arbitrator's determination that inasmuch as the union's national counsel, an attorney, was responsible for directing and overseeing all aspects of the case through a paralegal field representative, an award of fees for the paralegal services is consistent with case precedent. Federal Deposit Insurance Corporation and National Treasury Employees Union, 0-AR-2883, March 31, 1998, 53 FLRA No. 148. FAIR LABOR STANDARDS ACT (FLSA) ... COVERAGE ... REMEDIES. Because arbitrators are bound to apply the remedies of the FLSA for FLSA violations, the Authority awards liquidated damages to those employees the agency had conceded were wrongfully exempted from FLSA coverage. Regarding the back pay recovery period for these employees, the Authority held that FLSA's two-tiered statute of limitations, not the Back Pay Act, applied to FLSA cases. But since it was unable to determine from the record whether the 3-year (for willful violations) or 2-year recovery period applied in this case, it remanded this particular matter to the parties for resolution. Federal Deposit Insurance Corporation [FDIC] and National Treasury Employees Union [NTEU], 0-AR-2826, Feb. 17, 1988, 53 FLRA No. 134. LIGHT DUTY ... INSUFFICIENTLY "TAILORED" ARRANGEMENTS. A proposal giving temporarily disabled employees the right to decline light duty work on any shift other than their regular shift is insufficiently tailored to qualify as a § 7106(b)(3) exception to management's right to assign work. National Association of Government Employees, Local R14-23 and Defense Commissary Agency, Kelly Air Force Base, Texas, 0-NG-2369, Feb. 27, 1998, 53 FLRA No. 131. DEFICIENT AWARD ... NO "BUT FOR" RECONSTRUCTION OF THE EMPLOYER'S ACTION. Applying the 2-prong test it announced in 53 FLRA No. 21 (reported in Significant Cases No. 119, p. 6) to determine whether arbitral remedies interfere with rights reserved to management by § 7106, the Authority found that a restitutional overtime remedy that had been directed by the arbitrator is deficient because not based on a reconstruction of what the agency would have done had it not violated the collective bargaining agreement's "just cause" general standard. Department of Veterans Affairs (DVA) Medical Center, Coatesville, PA and National Association of Government Employees (NAGE), Local R3-35, 0-AR-2895, Feb. 27, 1998, 53 FLRA No. 129. MSPB DECISIONS EXCESSIVE ABSENCE ... FAMILY AND MEDICAL LEAVE ACT (FLMA). A charge of excessive absence will be upheld when an employee is in an unpaid leave status and there is no end in sight to the employee's absence. Also, use of leave under the FMLA does not preclude the agency from charging excessive absence, when the absence in question exceeds the 12-week period of absence covered by FMLA. Carl M. Cole, Administrator of the Estate of Jane M. Pickering v. Department of Veterans Affairs, NY0752960150-I-1, January 26, 1998. CHARGES ... ABSENCE WITHOUT LEAVE (AWOL) .... A charge of AWOL "for 10 workdays or more" can still be sustained even when part of the AWOL charge is not upheld, resulting in a period of AWOL of less than 10 workdays. Robb v. Department of Defense, SF0752970055-I-1, January 6, 1998. MSPB JURISDICTION ... MISUSE OF A GOVERNMENT-OWNED VEHICLE. Where an arbitration award upheld a 7-day suspension and the agency sought to impose an additional 23-day suspension based on the arbitrator finding that a 30-day suspension was the minimum statutory penalty, the Board had jurisdiction to review the 23-day suspension not-withstanding the arbitration award. Westbrook v. Air Force, AT3443960818-I-1, December 8, 1997. PRIORITY CONSIDERATION. A right to priority consideration entitles an employee to bona fide consideration before any other candidate is referred. This right in no way requires that the employee be actually selected nor does it entitle the employee to review the merits of the agency's reasons for non-selection. Jeffrey A. Smith v, Department of the Interior, PH0351960126-X-1, August 25, 1997. COURT DECISIONS WHISTLEBLOWING ... INDIVIDUAL RIGHT OF ACTION Ray L. Kagel, Jr. v. Department of the Army, No. 96-3385, (Fed. Cir. October 15, 1997). Holding The Merit Systems Protection Board (MSPB, Board) may dismiss an appeal as moot if the action that was appealed is canceled or rescinded by the agency. But where the threat of personnel action still reasonably exists, a claim of reprisal for whistleblowing is not necessarily rendered moot when an agency rescinds its formal proposal notice. Summary As the result of an agency investigation of the appellant, an Environmental Resource Specialist, and the appellant's wife, who owned an environmental site-planning business within the local district, the agency concluded that an appearance of a conflict of interest existed that impaired the efficiency of the agency's operations. The agency therefore issued a directive to the appellant threatening to remove him if his wife continued to operate her business within the local district. The appellant filed a complaint with the Office of Special Counsel (OSC), alleging that the agency's threat was taken due to his previous acts of whistleblowing. While the appellant's OSC complaint was pending, the appellant's wife agreed to temporarily discontinue her business activities pending resolution of her husband's appeal. As a result, the agency contended that the cessation of her business eliminated the threat of the appellant's removal. An administrative judge agreed with the agency's contention and dismissed the appellant's individual right of action (IRA) appeal as moot. The full Board denied the appellant's petition for review. The U.S. Court of Appeals for the Federal Circuit (court) found that if one relied on the agency's argument, the only way for the appellant to obtain review of his IRA appeal would be to have his wife remain in business and allow the agency to actually remove him. In contrast, the court held that because the appellant invoked the Whistleblower's Protection Act by alleging reprisal, he is entitled to appeal the threat of removal and does not need to wait for the threat to be acted upon. Furthermore, the court determined that if the appellant's wife were to resume her business, the threat to remove the appellant would still exist. The court therefore disagreed with the Board and concluded that the agency's removal threat was still a live issue and the appellant's IRA appeal should not have been dismissed as moot. The court vacated the Board's decision and remanded the case for further adjudication. Comments This case is a good reminder that the Whistleblower Protection Act and the related individual right of action covers "threats" of personnel action as well as actual personnel action. Here the court found that a continuing threat of removal existed even after the agency had withdrawn the formal removal proposal. 53 FLRA No. 152 National Federation of Federal Employees, Local 1437 and Army Research, Development and Engineering Center, 0-AR-2809, March 31, 1998, 53 FLRA No. 152. Holdings FLRA announced that it intends to remand those portions of arbitration awards lacking "factual findings necessary to determine whether the arbitrator's legal conclusions are consistent with the applicable standard of law." It also reminded arbitrators that "the standards and burdens of proof found in law, rule, or regulation extend to arbitrators. . . . [A]n arbitrator's failure to apply the prescribed standard will constitute a basis for finding an award deficient." Because the award was devoid of any discussion or analysis of a prohibited personnel practice (PPP) allegation, FLRA remanded the matter to the parties for resubmission to the arbitrator who is to make the necessary findings of fact and to apply the appropriate analytical framework to the PPP allegation. FLRA also directed the arbitrator to reexamine the union's Title VII racial discrimination claim. Summary The arbitrator denied a grievance alleging that the agency had discriminated against the grievant on the basis of race and had committed a PPP under 5 U.S.C. § 2302(b)(6) when it did not select him for any of the vacancies advertised under two separate vacancy announcements. The union filed exceptions, claiming, among other things, that the arbitrator merely made a conclusory assertion without any discussion concerning how the conclusion was reached when he concluded that § 2302(b)(6) was not violated. The Authority agreed, finding that "[t]he award under review is completely devoid of any discussion or analysis of the issue of whether the Agency committed a prohibited personnel practice by promoting [Ms. R] to a position for which she was alleged to be not even minimally qualified . . . ." Because FLRA could not pass on the award's legal sufficiency without such an analysis, it remanded the matter to the parties consistent with its decision. Before reaching the above conclusion, FLRA said that prior to its decision in 50 FLRA No. 53 an arbitrator wasn't consistently required to "set forth specific findings or to specify and discuss all allegations necessary for the resolution of a grievance." Noting that its ability to review an arbitrator's legal conclusions depended on the sufficiency of the record, FLRA developed a standard under which an award that doesn't contain the factual findings needed to evaluate the arbitrator's legal conclusions would be set aside and remanded to the parties for resubmission to the arbitrator for the needed findings. FLRA continued as follows: [W]e specifically affirm our intent, in this and future cases, to remand those portions of an award that are challenged by the exceptions and that fail to contain the factual findings necessary to determine whether the arbitrator's legal conclusions are consistent with the applicable standard of law. This is not to say, however, that arbitrators are required to address every factual contention raised by the parties. Rather, arbitrators are required to address only those contentions that are necessary for the Authority to resolve exceptions challenging the legal sufficiency of the award. FLRA went on to note that arbitrators must apply those "standards and burdens of proof that . . . could have been adjudicated in other fora" and that "standards and burdens of proof set forth in law, rule, or regulation extend to arbitrators." Comments When an award is resubmitted to the arbitrator, the arbitration proceeding is prolonged and the arbitration fee is increased. To reduce the likelihood of a remand for the reasons given in this case, the arbitrator should be furnished with a copy of 53 FLRA No. 152, which may be downloaded from FLRA's web page at http://www.access.gpo.gov/flra/. Arbitrators should be cautioned that arbitration practices adequate in the private sector (where the vast majority of disputes involve interpretation and application of the collective bargaining agreement) may not necessarily be adequate in the Federal sector (where many disputes involve interpretation and application of various laws and regulations). 53 FLRA No. 150 Department of Agriculture, Animal and Plant Health Inspection Service and National Association of Agriculture Employees, 0-AR-2907, March 31, 1998, 53 FLRA No. 150. Holding When the union, on behalf of grievants, incurred an obligation to pay attorney fees to a law firm, those fees were incurred by the grievants within the meaning of section 7701(g)(1). Given that the law firm offered two rates keyed to whether it failed or succeeded, FLRA held that since the grievants prevailed, they incurred the "success fee." However, the arbitrator's award of hearing expenses was deficient because it did not provide a clear and reasoned explanation of why the expenses were recoverable. FLRA also announced that, consistent with MSPB practice, it would no longer vacate without further proceedings attorney fee awards that are deficient because the arbitrator didn't adequately explain the application of pertinent statutory requirements. Except where the record permits FLRA to modify the award, it will remand the matter to the parties for further proceedings. Summary In his initial award the arbitrator found that the grievants were entitled to retroactive temporary promotions with back pay. The union then filed a motion for attorney fees in the amount of $88,550 based on its fee agreement with a law firm. That fee agreement provided that attorneys would represent the union and the grievants at a reduced rate of $90/hour. However, should the union/grievants be "successful" in the arbitration, they would be charged a "success fee," which would be the law firm's established billing rate for clients that were not on retainer. The arbitrator found that the union had incurred the success fee in accordance with the fee agreement. Moreover, the non-retainer billing rates that applied under the fee agreement were reasonable and consistent with prevailing market rates. He also rejected the agency's objections to airfare and hearing expenses. However, the arbitrator did not specifically address the hearing expenses that the agency disputed. Exceptions followed, in which the agency contended that the rate awarded by the arbitrator, along with the airfare and hearing expenses, were deficient. It argued that the established billing rate in this case is $90/hour, the $795 air fare was an overcharge, and the hearing expense award wasn't documented or explained by the union or specifically addressed by the arbitrator. Regarding attorney fees under the Back Pay Act, 5 U.S.C. § 5596, FLRA said that an award of fees for a backpay award for correction of an unjustified or unwarranted personnel action must be "reasonable and related to the personnel action; and . . . in accordance with the standards established under 5 U.S.C. § 7701(g), which pertains to attorney fee awards by the Merit Systems Protection Board (MSPB)." It added that when exceptions concern attorney fee standards under § 7701(g)(1), it "looks to the decisions of the MSPB and the U.S. Court of Appeals for the Federal Circuit for guidance." In noting that the agency didn't dispute that a fee was incurred by the union, but had instead objected to whether the union actually paid the success fee, FLRA said the following: The matter of fee payments between client and attorney is not a consideration in determining the propriety of attorney fee awards under the Act. The Agency's focus on the amount of fees allegedly paid, rather than owed, provides no basis for finding the arbitration award deficient. In resolving disputes over attorney fees, both the Federal Circuit and the MSPB refuse to consider the mechanics of fee payments between the counsel and client. . . . Similarly, in reviewing the amount of fees awarded, we will not address whether, or how much, employees or unions have actually paid their attorneys. Regarding the propriety of the rate, the Authority noted that in Francois v. Office of Personnel Management, 64 MSPR 191 (1994), involving a fee agreement limiting the employee's liability to $3,000 if the appeal were unsuccessful, the MSPB rejected OPM's argument that any fee in excess of the employee's liability is unreasonable, noting that although the fee agreement limited the employee's liability if the appeal were unsuccessful, it didn't limit the employee's liability in the event the employee prevailed. FLRA found that the fee agreement in the case at bar was even more explicit than that in Francois because it expressly obligated the union to pay a success fee if the arbitration had a favorable result. Given that the agency didn't dispute the arbitrator's conclusion that the firm's non-retainer billing rates were reasonable and consistent with prevailing market rates, FLRA found no basis for finding deficient the arbitrator's use of the firm's non-retainer billing rates in calculating the fee award. FLRA also rejected the agency's challenge to the airfare expenses awarded by the arbitrator. Recoverable expenses include travel expenses and the arbitrator explained the grant of such expenses in a fully articulated, reasoned decision. But the Authority, in agreement with the agency, found deficient that portion of the award granting hearing expenses because the arbitrator didn't explain why the expenses were recoverable and the record didn't contain documentation that would have allowed FLRA to determine if the amount was reasonable. FLRA then announced that in future cases it would no longer vacate attorney fee awards "that are deficient because the arbitrator has not sufficiently explained the determination of a pertinent statutory requirement." FLRA will instead "remand the award for further proceedings to assure that the resolution of a request for attorney fees is consistent with law." If, on the other hand, the record is sufficient to resolve the disputed matter, FLRA will modify the award or deny the exception. The Authority accordingly remanded the award to the parties for resubmission, absent settlement, to the arbitrator for a "fully articulated, reasoned decision" on whether the hearing expenses are recoverable and, if so, whether the amount is reasonable. 53 FLRA No. 148 Federal Deposit Insurance Corporation and National Treasury Employees Union, 0-AR-2883, March 31, 1998, 53 FLRA No. 148. Holding FLRA held that since the arbitrator found that union's national counsel, an attorney, was responsible for directing and overseeing all aspects of the case through a paralegal field representative, an award of fees for the paralegal services is consistent with MSPB case precedent. Summary In the initial award, the arbitrator reversed the grievant's suspension and awarded back pay. The union then filed a motion for attorney fees that included approximately 200 hours of work by NTEU's field representative (a professionally trained paralegal), 10 hours of work by the union's national counsel (an attorney), and $72.00 in travel expenses for the field representative. The arbitrator awarded the union attorney fees and expenses in the amount requested. The agency filed exceptions, claiming that the fees were not incurred. It argued, among other things, that since the grievant never directly consulted with the national attorney, there was no attorney-client relationship between the two. It also contended that the paralegal wasn't entitled to attorney fees and expenses because he wasn't an attorney. FLRA disagreed, finding that the fees had been incurred within the meaning of section 7701(g)(1). It pointed to 5 CFR § 550.807(f), which states that "attorney fees shall be allowed only for the services of members of the Bar and for the services of law clerks, paralegals, or law students when assisting members of the Bar." Moreover, in Anderson v. Government Printing Office, 55 MSPR 548 (1992) and Mitchell v. U.S. Postal Service, 6 MSPR 22 (1981), MSPB awarded attorney fees under § 7701(g) for the services of a legal assistant and law students, respectively, finding that fees for the services of non-attorneys was appropriate because an attorney-client relationship existed and the involvement of the non-attorneys was under the direct supervision of, and as agent for, the retained attorney. It noted that the arbitrator in the case at bar found that the national counsel was responsible for directing and overseeing all aspects of the case and that the field representative performed services as a paralegal under the supervision of, and acting as the agent for, the national counsel. These findings, said FLRA, were consistent with MSPB case precedent and 5 CFR § 550.807(f.) FLRA rejected the agency's claim that because there was no evidence that the grievant ever consulted with the national union, there necessarily was no attorney-client relationship. It noted that the arbitrator found that, in the circumstances of this case, the grievant's awareness of the attorney's role was not critical. Moreover, by not excepting to the 10 hours of work performed by the national counsel, the agency in effect conceded that an attorney-client relationship existed between the national counsel and the grievant. Finally, FLRA said that the agency's reliance on an arbitration award (in which the arbitrator ruled that for fees to be awarded for paralegal services the services must be ancillary to the principal legal services performed by an attorney) is misplaced because "arbitration awards are not precedential." 53 FLRA No. 134 Federal Deposit Insurance Corporation (FDIC) and National Treasury Employees Union (NTEU), 0-AR-2826, Feb. 17, 1988, 53 FLRA No. 134 Holding FLSA coverage. FLRA affirmed the arbitrator's holding that GG-11 and above Examiners and Liquidators were "properly classified as professional employees and exempt from the overtime provisions of the FLSA." FLSA remedies: liquidated damages. After noting it would no longer follow its precedent under which the Back Pay Act was used to remedy FLSA violations, the Authority modified that part of the award denying liquidated damages to those employees that the agency had conceded were wrongfully exempted from FLSA coverage. FLSA statute of limitations. Regarding the backpay recovery period for the aforementioned employees, the Authority held that FLSA's two-tiered statue of limitations, not the Back Pay Act, applied to FLSA cases. Because FLRA was unable to determine from the record whether the 3-year (for willful violations) or 2-year recovery period applied in this case, it remanded this particular matter to the parties for resolution. Summary This case involved a grievance alleging that the agency violated the FLSA when it designated certain bank liquidators and bank examiners as exempt from the time-and-a-half overtime pay provisions of the FLSA. While the grievance was pending, the agency conceded that examiners below the GG-11 level and all liquidators had been erroneously classified as exempt from FLSA's overtime requirements. Consequently, when the grievance was referred to arbitration, the parties stipulated the issues to be: (1) whether examiners at or above the GG-11 level were improperly exempted from FLRA's provisions; (2) what is the appropriate statute of limitations for those employees that the agency admitted had been improperly exempted; and (3) what relief, including liquidated damages, would be appropriate. The arbitrator found that the examiners at or above the GG-11 level were properly exempted from the FLSA. Although he held that the employees the agency admitted had been misclassified as exempt were not entitled to liquidated damages under 29 U.S. § 216(b), he ordered backpay for those employees retroactive only to February 1992. The union filed exceptions challenging all these determinations. On review, the Authority found that that portion of the award exempting GG-11 examiners from the FLSA isn't contrary to 5 CFR § 551.206(a)(1). [W]e find that GG-11 examiners perform their work on the basis of extensive training and 3 years of experience as an examiner trainee. This training and experience provides GG-11 examiners with "both theoretical and practical knowledge of their specialty, including . . . knowledge of related disciplines and of new developments in the field[.]" . . . Thus, we find that GG-11 examiners satisfy the criteria set forth in section 551.206(a)(1). As it is undisputed that GG-11 examiners satisfy the criteria in sections 551.206(b) and (c), we conclude that they are properly classified as professional employees and exempt from the overtime provisions of the FLSA. Thus the union exception to this portion of the award was dismissed. Regarding the applicability of the Back Pay Act to FLSA violations, the Authority announced it would no longer follow its precedent, under which it had held that remedies for violations of the FLSA are appropriately resolved under the Back Pay Act. It said that a violation of the FLSA is to be remedied under the FLSA, not the Back Pay Act. Noting that courts have awarded backpay under the FLSA without regard to the Back Pay Act, the Authority held "that 29 U.S.C. § 255(a) applies to grievances claiming violations of the FLSA, and thus, arbitrators are bound to apply that section." Turning to the issue of liquidated damages, the Authority said that "[a]rbitration awards granting liquidated damages are lawful because the FLSA independently provides entitlement to money damages against a Government employer." After noting, among other things, that under FLSA there is a presumption that an employee improperly denied overtime shall be awarded liquidated damages, and that an employer who violates FLSA bears a substantial burden of proving that it acted in good faith (a basis for not granting liquidated damages), the Authority concluded that the arbitrator's factual findings did not support his legal conclusion that the agency met its substantial burden that liquidated damages were unwarranted. It accordingly modified the award to include the payment of liquidated damages under 29 U.S.C. § 260. Unlike the Back Pay Act, which doesn't limit the period of recovery for an award of backpay, the Fair Labor Standards Act expressly limits the period of recovery. In this regard an action under the FLSA "may be commenced within two years after the cause of action accrued, . . . except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued[.]" Because the arbitrator did not determine whether the FLSA violation was willful, the Authority was unable to determine whether the 2-year or 3-year statute of limitations applied. It accordingly remanded this portion of the award to the parties for further action consistent with the Authority's decision. Comments As this case marks yet another departure from FLRA precedent, it should be kept in mind when arbitrating a dispute involving alleged violations of the Fair Labor Standards Act. 53 FLRA No. 131 National Association of Government Employees (NAGE), Local R14-23 and Defense Commissary Agency, Kelly Air Force Base, Texas, 0-NG-2369, Feb. 27, 1998, 53 FLRA No. 131. Holding A proposal giving temporarily disabled employees the right to decline light duty work on any shift other than their regular shift is insufficiently tailored to qualify as a § 7106(b)(3) exception to management's right to assign work. Summary Under the disputed sentence of the union's proposal, a temporarily disabled employee could not be required to accept an assignment of light duty work if such work were not available during the employee's regular tour of duty. The union argued that the sentence was an "appropriate arrangement" within the meaning of § 7106(b)(3). Employees, it said, are hired for specific tours; and family commitments, transportation problems, or other valid reasons could prevent an employee from working a different tour. FLRA first found that, as plainly worded, the disputed sentence affects management's right to assign work, which includes the right to determine when work assignments will occur and when work that has been assigned is to be performed. 3 FLRA 769, 775 (1980), affirmed 691 F.2d 553 (D.C. Cir. 1982). Second, the Authority rejected the union's claim that the sentence is a negotiable "appropriate arrangement" within the meaning of 5 U.S.C. § 7106(b)(3). The sentence, which applied to all temporarily disabled employees, including those not adversely affected by a shift change, wasn't sufficiently "tailored" to qualify as an arrangement. It is not asserted or apparent that these employees are affected in different ways from any employee who is assigned to a new tour of duty. Moreover, the disputed sentence would allow any temporarily disabled employee assigned light duty on a tour other than the employee's regular tour to decline the assignment, even if the employee does not suffer the scheduling problems the disputed sentence is intended to address. Thus, even assuming the effects identified by the Union constitute adverse effects within the meaning of section 7106(b)(3) . . . , the disputed sentence is not sufficiently tailored to compensate those employees suffering the effects asserted by the Union as attributable to the exercise of management's rights. Accordingly, the disputed sentence was found not to be within the duty to bargain. 53 FLRA No. 129 Holding Applying the 2-prong test it announced in 53 FLRA No. 21 (reported in Significant Cases No. 119, p. 6) to determine whether arbitral remedies interfere with management's § 7106 rights, the Authority found that a restitutional overtime remedy that had been directed by the arbitrator is deficient because not based on a reconstruction of what the agency would have done had it not violated the collective bargaining agreement's "just cause" general standard. Summary After reducing the grievant's suspension from 14 to 2 days, the arbitrator, instead of simply ordering that the grievant be made whole, directed the agency to assign the grievant sufficient overtime work to earn an amount equivalent to the gross compensation lost during the 12 days that the grievant was improperly suspended. In its exceptions the agency argued, among other things, that the award of "restitutional overtime" violated management's rights to assign work and assign employees. The Authority, relying on the revised 2-prong test it announced in 53 FLRA No. 21 concerning remedies that can be awarded by an arbitrator, disagreed in part. Under the first prong of that test the Authority examines "whether the award provides a remedy for a violation of either applicable law [which includes regulations having the force and effect of law--see 42 FLRA No. 21] within the meaning of section 7106(a)(2) . . . or a contract provision that was negotiated pursuant to section 7106(b) of the Statute"--e.g., a contract provision dealing with § 7106(b)(1) methods, means, etc., or a contract provision that is a non-abrogating "arrangement" under § 7106(b)(3). Here, the arbitrator satisfied the first prong of the test when he found that the agency violated the "just cause" provision of the contract. FLRA noted, in this connection, that it previously has held that contractual provisions establishing general standards, such as "just and sufficient cause" or "to promote the efficiency of the service," that are to be applied in the exercise of management's right to discipline have been found to be arrangements that do not abrogate the right to discipline. Such provisions, said FLRA, "are viewed as having been negotiated under section 7106(b)(3) of the Statute." Under the 2nd prong, FLRA considers whether the arbitrator's remedy reflects a reconstruction of what management would have done if it had not violated applicable law or a contract provision dealing with a 7106(b) matter. Finding that the award failed this part of the test, FLRA said the following: Had the Agency not improperly suspended the grievant for 14, rather than 2, days, he would have been paid for those 12 days. The Arbitrator did not explain the basis for awarding restitutional overtime to make up this difference. Moreover, there is no . . . basis on which to conclude that the Agency would have . . . placed the grievant on unpaid leave for 12 days and assigned him overtime work for an equivalent amount of time. Thus, the award fails to reconstruct what the Agency would have done had it initially acted properly. . . . Awarding the grievant backpay for 12 days would more directly make him whole for the days he was improperly suspended. However, we are unable to determine whether the Arbitrator's remedy of restitutional overtime reflects his decision that a backpay remedy was inappropriate. We note, in this regard, that nothing in the Back Pay Act precludes an arbitrator from denying backpay as part of a decision to mitigate an agency-imposed penalty. FLRA accordingly set aside the award and remanded it to the parties for resubmission, if necessary, to the arbitrator who would have to determine "whether an award of backpay--or some other remedy--is warranted." Comments FLRA cited 32 FLRA No. 112 in support of its assertion that the Back Pay Act doesn't preclude an arbitrator from denying backpay as part of his or her decision to mitigate an agency-imposed penalty. That case, in turn, cited American Federation of Government Employees, Local 2718 v. Department of Justice, Immigration and Naturalization Service, 768 F.2d 348, 351 (Fed. Cir. 1985). In that case, where the arbitrator mitigated a removal to a 15-day suspension but denied back pay, the court said the following: Implicit in [the appellant's] argument is that the arbitrator could not deny back pay for a period greater than that encompassed by the suspension. To adopt such a proposition would impair the arbitrator's broad discretion in fashioning a just award which takes account of the parties' mutual interests and conduct. In reviewing the Back Pay Act, and the legislative history cited by [the appellant], we are unable to find any provision which precludes an arbitrator from denying back pay as part of a mitigated penalty, or which limits a denial of back pay to a period of suspension. MSPB DECISIONS EXCESSIVE ABSENCE ... FAMILY AND MEDICAL LEAVE ACT OF 1993 (FMLA) Carl M. Cole, Administrator of the Estate of Jane M. Pickering v. Department of Veterans Affairs, NY0752960150 I-1, January 26, 1998. Holding A charge of excessive absence will be upheld when an employee is in an unpaid leave status and there is no end in sight to the employee's absence. Also, use of leave under the Family and Medical Leave Act of 1993 (FMLA) does not preclude the agency from charging excessive absence, when the absence in question exceeds the 12-week period of absence covered by FMLA. Summary The appellant, a GS-7 Medical Technician, was continuously in an unpaid leave status for over 19 months, before she was removed for excessive absence and absence without leave (AWOL). The agency also alleged that the appellant failed to follow agency procedures, regulations, and policies regarding attendance. The appellant, who suffered from rheumatoid arthritis, claimed that she was removed based on disability discrimination. In its review, the Board began by stating that the only charge it needed to review was that the employee had been in a continuous non-pay status for more than 19 months, since this charge alone was sufficient to justify removal. The Board then examined the employee's claim of disability discrimination. It concluded that the employee failed to establish that she was a qualified disabled person because she failed to articulate an accommodation that would enable her to work. In this case, the agency had offered the appellant various accommodations, which she refused. The employee was unable to show that her final requested accommodation of assignment to the day shift was related to her disability or would enable her to perform her duties. The appellant also argued that she was entitled to leave under the Family and Medical Leave Act of 1993 (FMLA). In its analysis the Board noted that, assuming that the appellant satisfied all of the criteria for entitlement to FMLA, the maximum amount of FMLA leave she could have taken was 12 workweeks, which would have covered only part of the absence. The Board reaffirmed its holding in Holderness v. DCA, 75 MSPR 401 (1997), where it held that an agency may take an adverse action based on excessive use of leave without pay (LWOP) where: (1) the record shows that the employee was absent for compelling reasons beyond her control so that the agency's approval or disapproval of leave was immaterial because the employee could not be on the job; (2) the absences continued beyond a reasonable time, and the employee was warned that adverse action might be initiated unless the employee became available for duty; and (3) the agency shows that the position must be filled. The Board upheld the charge of excessive absence and found that removal was reasonable, given that there was no foreseeable end in sight to the appellant's condition. Comments This case provides a good discussion of the limits of "reasonable accommodation." Here the employee rejected the various offers of accommodation provided by the agency and was never able to justify how her requested accommodation would enable her to work. The decision also affirms that removal for excessive absence is appropriate when the criteria discussed above are met and there is no foreseeable end in sight to the employee's absence. Where an employee has exhausted all annual and sick leave, as well as any entitlement to unpaid leave under FMLA, and there is no foreseeable date the employee will be able to return, removal based on a charge of excessive absence should be actively considered. CHARGES ... ABSENCE WITHOUT LEAVE (AWOL) Robb v. Department of Defense, SF0752970055-I-1, January 6, 1998. Holding A charge of AWOL "for 10 workdays or more" can still be sustained even when part of the AWOL charge is not upheld, resulting in a period of AWOL of less than 10 workdays. Summary The agency removed the appellant based on a charge of absence without leave (AWOL) "for ten (10) workdays or more." On appeal, the administrative judge did not sustain the charge, based on medical evidence presented by the appellant. The administrative judge found that the appellant should have been granted leave without pay (LWOP) for some of the days he was absent and that the most the agency could prove was that the appellant was AWOL for less than 10 days. He thus concluded that the agency failed to sustain its charge. In its petition for review, the agency argued that the administrative judge should have sustained the charge and either upheld or mitigated the penalty. In its review, the Board held that the charge of AWOL should have been sustained even though the appellant submitted medical evidence on appeal regarding some of his absences. Citing James v. Department of the Air Force, 73 MSPR 300 (1997), where the Board held that a charge must be viewed in light of the accompanying specifications and circumstances, and should not be technically construed, the Board agreed with the agency. The Board found that the notice of proposed removal was clear about the charge of AWOL and that there was a distinction between the actual charge of AWOL and the factual narrative outline of the charge. Citing Burroughs v. Army, 918 F.2d 170 (Fed. Cir. 1990), which held that an agency must prove all of the elements of a charge in order for that charge to be sustained, the Board noted that the phrase "for ten (10) days or more" is descriptive in nature and that it does not create an additional element that must be demonstrated in order to prove the charge of AWOL. The Board also noted that the agency's table of penalties determination is based on the length of AWOL and, therefore, the use of time descriptions of AWOL relate to the penalty only. Finally, in reviewing the penalty determination of the agency, the Board looked at the appellant's length of service, performance rating, and unblemished disciplinary record, and mitigated the penalty of removal to a 60-day suspension. Comments This is a nice decision from the Board which properly relies on the substance of the charges rather than the description. Also welcome is the Board's reliance on selected prior case law to draw the distinction between elements and specifications and its statement that charges should not be "technically construed." Hopefully, we will see this same type of analysis in future Board decisions. JURISDICTION ... MISUSE OF A GOVERNMENT-OWNED VEHICLE Westbrook v. Air Force, AT3443960818-I-1, December 8, 1997. Holding Where an arbitrator award upheld a 7-day suspension and the agency sought to impose an additional 23-day suspension based on the arbitrator's finding that a 30-day suspension was the minimum statutory penalty, the Board had jurisdiction to review the 23-day suspension notwithstanding the arbitration award. Summary The appellant was suspended for 7 days based on failure to follow security procedures and unauthorized use of a Government-owned vehicle (GOV). The agency alleged that the appellant drove his GOV to a fast food restaurant and purchased food at the drive-through window while escorting the base manager, who was carrying more than $11,000. The employee sought review of his suspension under the negotiated grievance procedure and the case went to arbitration. At the arbitration hearing, the agency urged the arbitrator to impose the minimum statutory penalty of a 30-day suspension for willful misuse of a GOV. The arbitrator sustained the charges and the 7-day suspension, while agreeing with the agency that the appropriate penalty was a 30-day suspension, as mandated by 31 U.S.C., §§ 1344 and 1349. Citing the same charges, the agency then issued a decision letter to the appellant suspending him for an additional 23 days. The employee then filed an appeal with the Merit Systems Protection Board. At issue in this case was whether or not the Board had jurisdiction over the appeal. The agency argued that the Board lacked jurisdiction over the appeal because the appellant did not raise a discrimination claim, the 23-day suspension was a continuation of the initial 7-day suspension (which the appellant elected to grieve through arbitration), and the agency was merely complying with the arbitrator's decision. In its analysis, the Board held that (1) it had jurisdiction over the 23-day suspension action under 5 U.S.C. § 7121(e); (2) the arbitrator's decision did not defeat Board jurisdiction; and (3) the 23-day suspension must be reversed because it punished the appellant twice for the same misconduct. The Board agreed with the agency that it lacked jurisdiction under 5 U.S.C. § 7121(d) because there was no claim of discrimination within the meaning of § 2302(b)(1). However, the Board determined that under § 7121(e), the suspension was within its jurisdiction. (Under § 7121(e), if a matter is covered by both a negotiated grievance procedure and a statutory procedure dealing with actions under 5 U.S.C. §§ 4303 and 7512 (such as a 23-day suspension), the employee may challenge the action by electing between the grievance procedure or an appeal to the Board, but not both. Here, the employee elected the statutory procedure.) The Board did not agree with the agency's argument that since the appellant grieved the 7-day suspension, he in effect negated his right to appeal the subsequent 23-day suspension to the Board. It also noted that the 7-day suspension was not an appealable action and that the grievance procedure was the only route the appellant could have taken to challenge that action. Thus, the grievance of the 7-day suspension did not divest the Board of jurisdiction over the 23-day suspension. In regard to the agency's argument that the 23-day suspension was required as a result of the arbitrator's decision, the Board found that the arbitrator did not order the 23-day suspension. Even if it was ordered, the Board reasoned, the agency was the responsible party for taking the action. Finally, the Board cited Adamek v. USPS, 13 M.S.P.R. 224 (1982), and Cornelius v. Nutt, 472 U.S. 648 (1985), which address the principle of law that an agency may not discipline an employee twice for the same misconduct, and determined that when the agency effected the 23-day suspension, it relied on the same two charges (failure to follow security procedures and unauthorized use of a Government-owned vehicle) and underlying facts that were the basis for the 7-day suspension. The Board accordingly reversed the 23-day suspension. Comments This case provides a good review of the interplay between the various appeal and grievance rights available to employees. The highly unusual effort of the agency to have it appear that the arbitrator imposed a higher penalty than that being grieved is hard to understand. It is impossible to imagine the Board (or arbitrator) agreeing to increase a penalty beyond that in the decision letter. The fact that there is a statutory minimum for this particular penalty may have led the agency to believe that its error of not originally imposing a 30-day suspension could be remedied by the arbitrator. It is also important to note that the agency never formally charged the employee with "willful" use of the GOV, the language used in the statute providing for the minimum penalty of a 30-day suspension. PRIORITY CONSIDERATION Jeffrey A. Smith v. Department of the Interior, PH0351960126-X-1, August 25, 1997. Holding A right to priority consideration entitles an employee to bona fide consideration before any other candidate is referred. This right in no way requires that the employee be actually selected nor does it entitle the employee to review the merits of the agency's reasons for non-selection. Summary As part of a settlement agreement, the agency agreed to give the appellant priority consideration for specific vacant positions for which he was qualified. In a petition for enforcement, the appellant alleged that the agency violated this agreement by failing to give him priority consideration for a position for which he was fully qualified. The agency acknowledged its error by canceling its initial selection and reconsidering the appellant's candidacy. The agency's reconsideration of the appellant did not result in him getting the position in question and the appellant was later selected for another position. The agency, therefore, believed that the appellant's petition for enforcement was moot. The administrative judge rejected the agency's argument that the petition was moot by finding that the settlement agreement obligated the agency to give priority consideration for all the positions covered by the agreement. According to Merit Systems Protection Board (Board) case law, a right to priority consideration entitles an employee to bona fide consideration before any other candidate is referred. This right in no way requires that the appellant actually be selected nor does it entitle the appellant to review the merits of the agency's reasons for non-selection. In this case, the appellant argued, among other things, that the agency's reason for not selecting him lacked validity. Applying Board precedent, the Board rejected the appellant's lack of validity argument and focused on the real issue--whether or not the agency acted in good faith in considering the appellant's qualification for the position. On review, the Board found that the agency had acted in good faith in considering the totality of the circumstances surrounding the appellant's qualifications. The Board further noted that while the agency's subsequent placement of the appellant in another position did not render the appellant's petition as moot, it nonetheless reflected that the agency did not act in bad faith. The Board concluded that the agency was in compliance with the settlement agreement and dismissed the petition for enforcement. Comment This case provides a good discussion of priority consideration. An agency should be aware of not only its obligations under priority consideration, but also its rights. The concepts discussed in this case can also be applied to other common work situations such as reduction-in-force and workers' compensation. Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930. |
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