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 Number 126 November 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 JURISDICTION ... SUPERVISOR. The Federal Circuit defines Postal Service supervisors and managers for purposes of MSPB appeals coverage. Bolton v. MSPB, 154 F.3d 1313 (Fed. Cir., August 31, 1998). WHISTLEBLOWING ... BURDEN OF PROOF ... PROBATIONARY EMPLOYEES. The Federal Circuit Court holds that an employee is not obligated to show hostility or animus on the part of agency officials in order to make a prima facie case that whistleblowing was a contributing factor in a contested personnel action. Kewley v. HHS, 153 F. 3d 1357 (Fed. Cir., August 20, 1998). CHARGES ... BURDEN OF PROOF. When a charge is broadly written and the basis for the charge can only be discerned from the specification, the agency must prove what it has alleged in the specification, even if this results in a higher burden of proof because of the language found in the specification. Janice R. Lachance v. Merit Systems Protection Board, No. 97-3450 (Fed. Cir. June 24, 1998). UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 (USERRA). An appellant need not specifically invoke the Uniformed Services Employment and Reemployment Rights Act of 1994 to come within the jurisdiction of the Merit Systems Protection Board. The Board must carefully review the language of the appeal to determine if an appellant meets the requirements for jurisdiction under the Act. Sonya L. Yates v. Merit System Protection Board, No. 97-3316 (Fed. Cir., June 23, 1998). INVOLUNTARY REASSIGNMENT ... EFFICIENCY OF SERVICE. When an agency reassigns an employee out of a job he is skilled in, places him into a job he cannot perform, and then removes him, it must show not only that there was a legitimate management reason for reassigning the employee, but that the removal promotes the efficiency of service more than his retention in, or return to his former position. Arturo Vidal v. United States Postal Service, No. 97-3386 (Fed. Cir., May 14, 1998). WHISTLEBLOWING ... JURISDICTION. There is no "blanket rule" permitting Federal employees to claim that merely carrying out their official duties can constitute protected disclosures under the Whistleblower Protection Act. Willis v. Agriculture, No. 97-3250, (Fed. Cir. April 15, 1998). FLRA DECISIONS LOCATION OF COMPETING FOOD SERVICE ... VITALLY AFFECTS TEST ... DIRECT, INDIRECT, AND COLLATERAL EFFECTS. A proposal prescribing the location of a McDonald's on the agency's property is a mandatory subject of bargaining even though it has an indirect effect on the availability of its services to personnel outside the bargaining unit. The "vitally affects" test doesn't apply to a proposal's indirect effects. Nor does the proposal's collateral effects on the revenues (and the uses of those revenues) of a competing food services business remove the proposal from the mandatory scope of bargaining. International Federation of Professional and Technical Engineers, Local 35 and Department of the Navy, Norfolk Naval Shipyard, 0-NG-2311, October 30, 1998, 54 FLRA No. 119. ATTORNEY FEES ... SUBSTANTIALLY INNOCENT ALLEN CRITERION. In a split decision, the Authority set aside an award denying attorney fees where the arbitrator, although finding that the agency failed to meet its burden of proof regarding its suspension action, denied that part of the grievance claiming that the suspension was in retaliation for the protected disclosure of a prior grievance. Relying on the "substantially innocent" criterion of Allen v. USPS, 2 MSPR 420 (1980) (Allen) for determining whether an award of attorney fees is warranted in the interest of justice, the Authority set aside the arbitrator's denial of attorney fees because he relied on factual findings related to the retaliation issue rather than on the factual findings related to the discipline issue. Member Wasserman, concerned that FLRA was narrowing the gap between arbitration and litigation, took issue with such a compartmentalization of the arbitrator's factual findings and instead argued that FLRA should consider the entire record. National Association of Government Employees, Local R5-188 and Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 0-AR-3018, October 30, 1998, 54 FLRA No. 122. WORK ASSIGNMENT PLANS ... § 7106(b)(1) METHODS AND MEANS. In a negotiability case involving 11 disputed proposals, all but one of them seeking to place time limitations ["off interview time"] on the assignment of interview duties, the Authority dismisses one because no allegation of nonnegotiability had been made, holds that one, dealing with a §7106(b)(2) procedure, is a mandatory subject of bargaining, and holds that the remaining nine proposals are electively negotiable "methods and means" under §7106 (b)(1). American Federation of Government Employees and Social Security Administration, District Office, New Bedford, Massachusetts, No. 0-NG-2258, October 22, 1998, 54 FLRA No. 113. DIRECT DEALING WITH RIVAL UNIONS ... EO 12871 TASK FORCES ... EXCLUSIVE RECOGNIION ... CONSENSUS AS A FORM OF BARGAINING. In a split decision (Member Wasserman dissenting), the Authority turned down union excerptions to an award in which the arbitrator held that the agency didn't commit an unfair labor practice or violate the agreement between it and AFGE when it allowed NFFE to participate in the deliberations of agency-wide reorganization task forces whose decisions were reached via consensus. "Where an agency's contacts with an union other than the exclusive representative do not exclude the exclusive representative, and preserve the exclusive representative's role in the determination of conditions of employment, the agency is not engaged in direct dealing in violation of the Statute." American Federation of Government Employees National Council of HUD Locals 222 and U.S. Department of Housing and Urban Development, 0-AR-2725, September 30, 1998, 54 FLRA No. 109. CONDITIONALLY MANDATORY PROVISIONS ... TRANSIT SUBSIDIES. In turning down agency exceptions to an award in which the arbitrator awarded retroactive transit subsidies as a remedy for violating conditional mandatory provisions in agreement, FLRA holds that transit subsidies permitted by the Federal Employees Clean Air Incentives Act (5 U.S.C.- §7905) "constitute pay, allowances, and differentials within the meaning of the Back Pay Act." U.S. Department of Health and Human Services and National Treasury Employees Union, 0-AR-2766, September 30, 1998, 54 FLRA No. 106. MSPB DECISIONS PERFORMANCE BASED ACTIONS. The Board will examine the language in a notice of an opportunity to improve to determine if the agency clearly informed the employee that performance was unacceptable. A degree of subjectivity is allowable in highly technical or scientific performance standards. Charles L. Greer v. Department of Army, AT-0432-96-0186-I-1, August 28, 1998 BACK PAY. Upon review, the Board agreed with OPM, in that the Board's previous decision to award back pay during a period where the appellant was incapacitated was inconsistent with previous holdings and a misinterpretation of civil service law. Martin v. Department of the Air Force and the Office of Personnel Management, AT0752930255-X-2, August 19, 1998. COMPENSATORY DAMAGES ... MIXED CASES ... JURISDICTION. The Board holds that it has the authority to grant compensatory damages in mixed case proceedings. Crosby v. Postal Service, AT-0752-95-0733-B-2, AT-0752-95-1205-B-1, AT-0752-95-1205-B-2, June 4, 1998. RELIGIOUS DISCRIMINATION ... REPRISAL ... REASONABLE ACCOMMODATION. In order to establish a prima facie case of religious discrimination, an appellant must show (1) that he had a religious belief that conflicted with an employment requirement (2) that he informed the agency of the belief, and (3) that he was a disciplined for failing to comply with the employment requirement. Dorsey v. Air Force, SF-0752-96-0350-I-4, June 2, 1998. CHARGES/PENALTIES ... MIXED-MOTIVE. The Board may mitigate a penalty in cases where the appellant proves that the agency took an action for mixed motives, one permissible and the other impermissible. John J. Caronia v. Department of Justice, DA-0752-96-0428-I-1, May 8, 1998. ADMINISTRATIVE LAW JUDGES ... WHISTLEBLOWING. The Board holds that the agency showed by clear and convincing evidence that it would have separated the appellant from her administrative law judge position absent her whistleblowing. Rutberg v. Occupational Safety and Health Review Commission, BN-1221-96-0099-W-2, April 17, 1998. CHARGES AND PENALTIES. The Board finds the appellant's dishonesty violated governmentwide standards of conduct but mitigates her removal to a sixty-day suspension. Mann v. HHS, SF-0752-96-0657-I-2, March 9, 1998. UNACCEPTABLE PERFORMANCE. Where unacceptable performance is charged in an action taken under Chapter 75, a pre-established performance standard need not exist, as long as the agency can prove that it measured an employee's performance in a reasonable and accurate manner. Betty J. Shorey v. Department of Army, DA-0752-96-0019-I-1, January 6, 1998. WHISTLEBLOWING ... JURISDICTION. The Board holds that allegations of unfairness in an agency's merit promotion selection process do not involve waste, fraud, and abuse covered by the Whistleblower Protection Act. Thomas v. Treasury, AT-1221-96-0406-W-1, January 5, 1998. COURT DECISIONS MERIT SYSTEM PROTECTIONS BOARD ... JURISDICTION ... SUPERVISOR David D. Bolton v. Merit Systems Protection Board, 154 F. 3d 1313 (Fed. Cir., August 31, 1998). Holdings
Summary The Postal Service reduced the appellant in grade and pay in 1992 for failure to maintain peaceful relationships with customers, supervisors, peers, and other agency employees. Three years later the appellant sought review of the matter by the Merit Systems Protection Board. The Board dismissed the appeal for lack of jurisdiction, finding that the appellant was neither a supervisor nor a manager in the Postal Service entitled to Board appeal rights. The appellant sought review of the Board's decision by the Court of Appeals for the Federal Circuit arguing, among other things, that he was unlawfully placed in a class of Postal Service employees who had no right to challenge adverse personnel actions. That is, he had no protection of membership in a collective bargaining unit and no right of appeal to the Board .In determining whether the appellant was a supervisor, the court first reviewed the definition of a supervisor under the National Labor Relations Act (NLRA) since the Postal Service is covered by that Act. The NLRA lists twelve categories of discretionary authority, any one of which, if exercised by an individual, would make him or her a "supervisor." The court commented, however, that it believed each of those categories are "equally indicative" of supervisory authority for purposes of Board jurisdiction. Here, it noted that the Board has neither the expertise nor the resources to review each case and apply all of these categories. Instead, the court concluded that only two functions are "substantially determinative" of whether a particular Postal Service employee is a "supervisor." These are: (1) the authority to discharge or discipline another employee, or effectively to recommend that another employee be disciplined or discharged and (2) the authority to direct the actions of others and be "held fully accountable for the performance and work product of the employees he directs." The court said when neither of these functions or factors is present, the Board has to look to other authorities to determine whether the individual concerned is a supervisor. Here, the court cautioned that "it would require a particularly powerful finding of authority to exercise one of the other statutory functions to outweigh the employee's lack of authority to discipline or failure to be evaluated according to the performance of others." In the current case, the court concluded that the appellant did not meet either part of the court's definition of a supervisor. The court noted that the Board's administrative judge found that the appellant was only passing along detailed instructions from management to other employees without the exercise of significant discretion or independent judgement. The court said this was "highly indicative" that the appellant was not a supervisor. In determining whether the appellant was a manager, the court looked to its precedent decision in Waldau v. Merit Systems Protection Board,19 F.3d 1395 (Fed. Cir. 1994). This decision adopted the definition of manager as developed by Supreme Court labor decisions and National Labor Relations Board case law that "managers" are those who "formulate and effectuate management policies by expressing and making operative the decisions of their employer." Here, the court noted that the employee's title is not necessarily determinative of whether that employee is a manager. Rather, the employee's authority to "effectuate management policies" must be the actual position. In this regard, an employee's "independent attempts" to influence workplace operations are not enough in themselves to make an employee a manager. In the current case, the court determined that the evidence demonstrated that the appellant was not a manager. Having determined that the appellant was neither a supervisor nor a manager having appeal rights to MSPB, the court also rejected the appellant's claim that he was unlawfully placed in a class of Postal Service employees without any rights to challenge adverse personnel actions. The court determined that the appellant failed to show any legal authority that would prevent him from union membership as a matter of law. The court said that a letter from a union to the appellant stating that the union would not accept him from membership was advisory "and does not represent the final say on Bolton's legal status with respect to the collective bargaining unit." Nor was there any showing that Bolton is eligible for union membership as a matter of law. WHISTLEBLOWING ... BURDEN OF PROOF ... PROBATIONARY EMPLOYEES Karen L. Kewley v. Department of Health and Human Services, 153 F.3d 1357 (Fed. Cir., August 20, 1998). Holdings
Summary The agency separated the appellant during probation from her position of Clinical Psychologist for unsatisfactory performance, including her continued resistance and refusal to participate in active child abuse cases. The Merit Systems Protection Board (MSPB) dismissed an appeal of the separation for lack of jurisdiction. She then filed a complaint with the Office of Special Counsel (OSC) arguing that her separation was in reprisal for whistleblowing activities six weeks earlier (complaint to a supervisor that agency practices violated ethical and legal requirements). OSC closed out her complaint and the appellant's subsequent individual right of action (IRA) appeal to the Board was dismissed by an administrative judge after finding no reprisal. The appellant asked the Court of Appeals for the Federal Circuit to review the judge's IRA decision. The Federal Circuit used the case to discuss at length Congressional intent and its own precedent with regard to the respective burdens of proof assigned to an appellant and the employing agency in such cases. The court noted that the initial burden of proof is with the appellant to show by a preponderance of the evidence that the whistleblowing was a "contributing factor" in the agency's decision to separate her. If the appellant is successful, the burden of proof shifts to the agency to show by "clear and convincing" evidence that it would have taken the action absent the whistleblowing. The court pointed out that Section 1221(e) (1) of Title 5 of the United States Code only requires the appellant to show (1) that the official taking the contested personnel action knew about the whistleblowing and (2) that the personnel action occurred within a period of time such that a reasonable person could conclude that the disclosure was a contributing factor. In this case there was no dispute about the agency official's knowledge. With regard to the second required showing (i.e., timing of the contested action), the court noted that Congress had "explicitly vitiated" its decision in Clark v. Department of the Army, 997 F.2d 1466 (Fed. Cir. 1993) holding that the Whistleblower Protection Act did not incorporate a per se knowledge/timing test. The court reflected this change in Horton v. Department of the Navy, 66 F. 3d 279 (Fed Cir 1995) which stated that "the circumstantial evidence of knowledge of the protected disclosure and a reasonable relationship between the time of the protected disclosure and the time of the personnel action will establish, prima facie, that the disclosure was a contributing factor to the personnel action." Here, the court agreed with the appellant's argument that, once she met her obligation with regard to showing of knowledge and timing, the burden shifted to the agency to show by clear and convincing evidence that the contested action would have been taken absent the whistleblowing. The court explicitly stated that, contrary to the agency's argument, the appellant was not required to show animus or hostility by the agency official taking the contested action. The court concluded that the appellant had met the timing test since the contested action took place six weeks after her whistleblowing. The court reiterated that, even in probationary cases where the scope of review is limited, the agency is still required by statute to show by clear and convincing evidence that it would have separated the appellant absent her whistleblowing. Weighing the agency's evidence, the court determined that the agency met its burden that the appellant would have been separated anyway. Here, the investigation into the appellant's work that ultimately lead to her separation was begun before the whistleblowing and other documents reflected the need for the agency's "professional responsibility" to ensure quality care given by the appellant and others. The burden then shifted back to the appellant to rebut the agency's clear and convincing evidence. Finding that the appellant failed this burden, the court upheld her separation. Comment This case is useful for practitioners fashioning arguments in response to alleged reprisal against whistleblowers. The court has concluded there are two arguments that will not carry the day: (1)there was no animosity or animus toward the whistleblower and (2) the agency responded quickly to correct the deficiencies raised by the whistleblower. The case also demonstrates how relatively easy it is for a whistleblower to make a prima facie case that whistleblowing was a contributing factor in the agency's action. Finally, it is important to remember that an agency's burden of proof (if an appellant meets the initial knowledge/timing prima facie case on contributing factor) remains "clear and convincing" even when the personnel action contested is a probationary separation. CHARGES ... BURDEN OF PROOF Janice R. Lachance v. Merit Systems Protection Board, No. 97-3450 (Fed. Cir. June 24, 1998) Holding When a charge is broadly written and the basis for the charge can only be discerned from the specification, the agency must prove what it has alleged in the specification, even if this results in a higher burden of proof because of the language found in the specification. Summary The appellant was a Supervisory Police Officer for the U.S. Mint in San Francisco. He was demoted for (1) violating U.S. Mint security procedures and (2) for unacceptable and inappropriate behavior by a supervisor. Regarding the second charge, the agency specified that the appellant approached a subordinate employee who had witnessed his security violation and "stood very close to her and stated in a harsh manner" that whatever she said to Chief Pettit or Inspector Harrison could be used against him and that "she needed to be careful of what she said to them." On appeal to the MSPB, the demotion was reduced to a 90 day suspension because the administrative judge (AJ) found that the agency had not proven its second charge. However, the AJ determined that the charge was not what the agency had stated in its notice to the employee but was actually a charge of "engaging in unacceptable and inappropriate behavior as a supervisor with the intent to impede or interfere with an investigation." (Emphasis added). The AJ found that the agency had not proven that the appellant intended to impede or interfere with an investigation and, therefore, did not sustain the charge. The full Board sustained the initial decision and found that the administrative judge was correct. In July 1996, OPM sought reconsideration of the Board's final decision, arguing that the decision would have a substantial impact upon the civil service system because of the inherent conflict between this decision and the court's holding in King v. Nazelrod, 43 F. 3d. 663 (Fed. Cir. 1994). OPM stated that the Crouse decision (as this case was captioned before the Board) allowed the MSPB to recharacterize the charge brought by the agency whereas the Nazelrod decision stood for the proposition that an agency must prove what is actually charged rather than attempting to prove other charges that might be construed from the specifications. The Board rejected OPM's arguments, finding that it was appropriate for the judge to recharacterize the charge. On August 21, 1997, the Court of Appeals for the Federal Circuit accepted OPM's petition for review and rendered its decision in the case on June 24, 1998. In its decision, the court did not agree with the arguments made by the Office of Personnel Management regarding the Board's ability to look into the specifications behind the charged misconduct. The court found that when a charge is broadly written, it is incumbent upon the Board to review the specifications in support of the charge. Further, if those specifications carry with them a requirement for proof of additional elements, then the agency is bound to prove the additional elements. The court also noted that its precedent decision in Nazelrod stands for the principle that when a charge is broadly written and the basis for the charge can only be discerned from the specification, the agency must prove what it has alleged in the specification. Turning to the Board's decision in Crouse, the court noted that the Board had only examined half of the agency's specification. The first half of the specification alleged that the appellant was attempting to influence a subordinate not to cooperate in the investigation of his actions. But the second half of the specification alleged that even if the appellant did not intend to do so, he still acted improperly because he should have known that his actions would have been perceived as inappropriate or intimidating. The Board looked only at the first half of the specification and found no proof of intent, but the court remanded the case back for a second look at whether the charge could be sustained based on the perception of impropriety. The court also corrected the Board's erroneous finding that the proposal and decision notices explicitly stated that the agency was taking action based on the appellant's intentional obstruction of an agency investigation. The court found that both documents clearly indicated that the agency did not regard intent as an essential aspect of the charge. In response to the Board's arguments that the proposing and deciding official had testified that "attempted intimidation of a subordinate" was a crucial part of the charge against the appellant, the court found that testimony during a post-action hearing can only be used when charge is ambiguous and this was not the case here. Therefore, the court remanded the case to the Board for a finding of whether the charge of "unacceptable and inappropriate behavior" can be sustained based on the alternative language in the specification. Summary Once again, agencies are "on notice" as to the increasingly hazardous process of writing not only charges, but the specifications for each charge. The court has supported the Board's process of incorporating aspects of specifications into the formal charge and potentially adding to the burden on proof, but thankfully, there are some restrictions. The Board will have to examine every part of a specification, particularly those that contain alternative language, as in the Crouse case. The most important message of this decision is that agencies should give the same attention to the wording of their specifications as is given to the wording of each charge in a proposed action. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT OF 1994 (USERRA) Sonya L. Yates v. Merit Systems Protection Board, No. 97-3316 (Fed. Cir., June 23, 1998) Holding An appellant need not specifically invoke the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA or Act) to come within the jurisdiction of the Merit Systems Protection Board. The Board must carefully review the language of the appeal to determine if an appellant meets the requirements for jurisdiction under the Act. Summary The appellant was a career employee serving a 90-day probationary period with the U.S. Postal Service when she was terminated for unacceptable performance. As a part of her probation, the appellant was to be trained as a Data Conversion Operator and she was required to achieve a minimum level of proficiency in data entry in order to be continued in the position. The agency told the appellant that she would receive evaluations at 30-day, 60-day and 90-day intervals. Approximately 40 days into the training period, the appellant went on two weeks for military reserve duty. When she returned she was given the 60-day evaluation but the agency never extended the training period to account for the reserve duty leave or provided the appellant with a 30-day evaluation. Toward the end of the 90-day probation, the appellant was removed because of her failure to become proficient in the key punch aspects of the job. The appellant appealed her removal to the Board, citing to the agency's failure to give her the necessary 30-day evaluation and to extend the training to account for the two week reserve duty absence. The appellant indicated she would have considered alternatives, such as rescheduling her reserve duty or staying in her previous job, if she had known she would not be given an extension of her training time. The administrative judge issued an acknowledgment order on jurisdiction and informed the appellant of the need to prove that she was a preference eligible with one year of current continuous service in the same or a simulate position. The appeal was dismissed based on lack of jurisdiction since the appellant did not demonstrate that she was a covered employee under the law. The appellant appealed to the full Board, arguing that she was entitled to veteran's preference but not stating any claim under the USERRA. The Board denied her petition for review and the appellant filed an appeal with the Court of Appeals for the Federal Circuit. Before the court, the appellant specifically invoked her right to a hearing under the USERRA. The appellant argued that she had met the three requirements for Board jurisdiction under the Act. These are: "(1) Performance of duty in a uniformed service of the United States; (2) an allegation of a loss of a benefit of employment; and (3) an allegation that the benefit was lost due to the performance of duty in the uniformed service." The Board argued that the appellant failed to make her arguments for jurisdiction under the Act in her appeals to the Merit Systems Protection Board. The court disagreed with the Board, noting the Board's history of being extremely liberal regarding jurisdiction under the USERRA. The court cited to Duncan v. U.S. Postal Service, 73 MSPR 86 (1997); Jasper v. U.S. Postal Service, 73 MSPR 367 (1997); and Peterson v. Interior, 71 MSPR 227 (1996) in demonstrating that the Board should have recognized the appellant's jurisdictional arguments even if she did not specifically name the Act as the basis for her claim. Having already found that the appellant proved she had performed military duty, the court remanded the case to the Board to determine if the two weeks of training time and the 30-day evaluation (both benefits of employment) were lost because the appellant was performing military duty. Comment In a classic "now the shoe is on the other foot" scenario, the Board's superior court rendered a holding on USERRA jurisdiction in which it remained the Board of its "liberal" interpretation in previous cases. The court found that the appellant was under no obligation to specifically reference the Act in her arguments on jurisdiction and held the Board liable for reading the language of her appeal to determine whether she had meet the three criteria for jurisdiction under the Act. INVOLUNTARY REASSIGNMENT-EFFICIENCY OF SERVICE Arturo Vidal v. United States Postal Service, No. 97-3386 (Fed. Cir., May 14, 1998). Holding When an agency reassigns an employee out of a job he is skilled in, places him into a job he cannot perform, and then removes him, it must show not only that there was a legitimate management reason for reassigning the employee, but that the removal promotes the efficiency of the service more than his retention in or return to his former position. Summary The appellant was employed as a part-time flexible clerk, assigned to duties as a flat sorting machine operator. He performed these duties successfully before the agency reassigned him to a permanent multi-position letter sorting machine operator vacancy. The reassignment was pursuant to a national collective bargaining agreement that provided that the part-time flexible clerk with the most seniority would be involuntarily reassigned if no one else bid for the vacancy. The appellant was later removed because he failed to attain a score of 98% on the letter sorting machine, thereby failing to qualify him for the assignment. On appeal to the Merit Systems Protection Board (MSPB or the Board), the administrative judge found that the agency had proved by a preponderance of the evidence that the appellant failed to meet the requirements for his reassignment. The administrative judge noted that, the efficiency of the service is not generally promoted by reassigning a skilled employee from a job he can perform into one which he cannot and then removing him, "legitimate management reasons" may allow such a removal action in some circumstances, citing Majors v. United States Postal Service, 3 M.S.P.R. 146 (1980). The administrative judge determined that the national agreement provided that employees who volunteered for a new position and then failed to qualify for the position would be put back in their old positions, but the national agreement did not provide such a retreat right to an employee who was reassigned involuntarily to a new position. The administrative judge affirmed the agency's removal. On appeal to the full Board, the Board affirmed the removal, focusing on the administrative judge's interpretation that the national agreement made no provision to protect part-time flexible clerk employees who are involuntarily reassigned to a permanent position for which they later fail to qualify. (Chairman Erdreich, filed a dissenting opinion, noting in part that the agency had failed to present any evidence as to whether the employee could continue to serve in his original part-time flexible clerk position on the flat sorting machine after he failed to qualify on the more difficult letter sorting machine position). The employee appealed the Board's decision to the U.S. Court of Appeals for the Federal Circuit. The Court found that the plain language of the national agreement did not prevent the agency from removing the employee once he failed to qualify for the letter sorting machine position, it did not require the agency to remove the employee. Because the agency could not rely on the national agreement as requiring the employee's removal, the Court held that the agency must demonstrate that the employee's removal promoted the efficiency of the service. The Court agreed that the employee's reassignment from the part-time flexible clerk position on the flat sorting machine to the permanent position operating the more difficult letter sorting machine was a legitimate management decision because it was required in these circumstances by the provisions of the national agreement. Merely showing that the transfer was based on a legitimate management reason was not enough. Under Majors, and concluded that the Board failed to perform this comparative analysis. The Court noted several circumstances that might justify the removal of an employee who failed to qualify for a new position. For example, there are some positions in which training for the next level position is an explicit job requirement set forth in either the job standards or other agency policy. Such a policy is common in "up or out" positions where an agency training program is designed to produce fully qualified journeyman staff. The Court stated, however, that the position that the employee held here was not an up-or-out position. The agency provided no argument or direct evidence to explain why the employee could not have been returned to his original position. Also, the agency failed to advance any argument or point to any evidence that arguably proved the employee's removal was more efficient for the agency than his retention as a part-time flexible clerk. Accordingly, the Court vacated the decision and remanded this case to the Board to reexamine the evidence to determine whether the agency demonstrated that the efficiency of the service would be promoted more by the appellant's removal than by his retention in his former position. Note: On remand to the Board, the Board reversed the agency's removal action, (see Arturo Vidal v. Postal Service, DC0752960310-M-1, July 16, 1998). WHISTLEBLOWING ... JURISDICTION William E. Willis, II v. Department of Agriculture, No. 97-3250 (Fed. Cir. April 15, 1998). Holdings There is no "blanket rule" permitting Federal employees to claim that merely carrying out their official duties can constitute protected disclosures under the Whistleblower Protection Act. Summary The appellant worked as a District Conservationist with the Department of Agriculture performing duties which included reviewing farms for compliance with conservation plans approved by the Department. After retiring, he filed an individual right of action (IRA) appeal with the Merit Systems Protection Board alleging that a low performance rating, a verbal reprimand, a directed reassignment, and his retirement were all in reprisal for whistleblowing. An administrative judge of the Board decided that the appellant was not a whistleblower under the Whistleblower Protection Act (WPA) and thus dismissed the appeal for lack of jurisdiction, a decision upheld by the full Board in Washington. The appellant asked the Court of Appeals for the Federal Circuit to review the case. The court noted that, in order to establish Board jurisdiction, an individual filing an IRA appeal must first show that he or she made a disclosure protected under Section 2302 (b)(8) of Title 5 of the United States Code. Before he retired, the appellant reviewed a number of farms as part of his official duties and determined that several were not in compliance with his agency's conservation requirements. On appeal within the agency, some of these determinations were reversed and the appellant complained to his supervisors about the reversals. The appellant argued that these complaints were protected disclosures under the WPA. The court disagreed, commenting that the intent of the WPA is to encourage employees to disclose governmental wrongdoing and to protect them from reprisal. The court concluded that the appellant's complaints were not the type of disclosures the law was meant to encourage and protect. The court commented: Discussion and even disagreement with supervisors over job-related activities is a normal part of most occupations. It is entirely ordinary for an employee to fairly and reasonably disagree with a supervisor who overturns the employee's decision. In complaining to his supervisors, [the appellant] has done no more than voice his dissatisfaction with his superior's decision. The appellant also argued that his findings, as part of his official duties, that some farms were not in compliance with his agency's conservation requirements constituted protected disclosures under WPA. Again, the court disagreed. The court rejected the appellant's argument that the court's decision in Marano v. Department of Justice, 2 F. 3d at 1142, announced a "blanket rule entitling employees to assert that the required performance of their day-to-day responsibilities could in any way constitute a protected disclosure. The court said it "surely" was not the goal of the WPA to have Government emplooyees' reports of possible breaches of law or regulations by private parties to be considered as protected disclosures. In this case, the court noted that the appellant was "merely performing his required duties" and commented that "[t]his is expected of all government employees pursuant to the fiduciary obligation which every employee owes it his employer." After rejecting the appellant's arguments, the court upheld the Board's dismissal of the appellant's IRA appeal. 54 FLRA No. 119 LOCATION OF COMPETING FOOD SERVICE ... VITALLY AFFECTS TEST ... DIRECT, INDIRECT, AND COLLATERAL EFFECTS International Federation of Professional and Technical Engineers, Local 35 and Department of the Navy, Norfolk Naval Shipyard, 0-NG-2311, October 30, 1998, 54 FLRA No. 119 Holding A proposal prescribing the location of a McDonald's on the agency's property is a mandatory subject of bargaining even though it has an indirect effect on the availability of its services to personnel outside the bargaining unit. The "vitally affects" test doesn't apply to a proposal's indirect effects. Nor does the proposal's collateral effects on the revenues (and the uses of those revenues) by a competing food services business remove the proposal from the mandatory scope of bargaining. Summary Food services at the agency's facility were mainly provided by the Norfolk Naval Shipyard Cooperative Association (COOP). Revenue from COOP sales are used to subsidize reduced prices at the COOP-operated safety shoe store, as well as to fund various athletic, recreational, and social activities conducted during non-duty time. When the agency notified the union that a McDonald's restaurant would be opened at a management-selected site on the agency's property, the union proposed, among other things, that the McDonald's be located at a sight where it was accessible to military personnel but less accessible to unit employees, thereby reducing the competitor's effect on the COOP's ability to generate revenue. Although the agency conceded that the location of food services is a matter pertaining to the conditions of employment of unit employees, it contended that inasmuch as the proposal at issue, which would locate the McDonald's in an area primarily intended for military personnel, is directed at the working conditions of military personnel, it does not concern a condition of employment of unit employees. Moreover, the various athletic, social, and recreational activities funded by COOP revenues aren't conditions of employment for unit employees because such activities are unrelated to the employment relationship and take place during non-duty time. The union, on the other hand, argued that there was a nexus between the location of the McDonald's and the conditions of employment of unit employees because the COOP's revenues were used to support its food service operations and a safety-shoe store, both of which related to the conditions of employment of unit employees. It also invoked the Authority's "vitally affects" test with respect to the proposal's effects on non-unit (e.g., military) personnel. The Authority, relying on 43 FLRA No. 106, #17 (proposal related to location of a cafeteria directly affects conditions of employment of unit employees) and 49 FLRA No. 114 (access to the military exchange is a condition of employment because of the agency's practice of allowing civilian employees to use the exchange), held that the proposal deals with a condition of employment of unit employees. It said that the agency's argument concerning the use of COOP revenues for nonwork-related purposes "is beside the point." The collateral effect of the location of the restaurant on COOP revenues and the uses of those revenues does not remove the proposal from the scope of bargainable conditions of employment...The effect of the proposal on non-unit personnel, such as military personnel, supervisors and management officials, or employees in other bargaining units, also does not remove the proposal from the scope of bargainable conditions of employment and does not implicate the vitally affects test...[W]here the question involves the indirect effects of a proposal concerning unit employees' conditions of employment on non-unit personnel, the vitally affects test is not implicated. Comments Proposals relating to food services usually try to make the availability of such services more convenient and less costly to unit employees. The union's proposal in this case, by contrast, is aimed at protecting from competition the revenue-generating potential or the COOP, presumably because the union concluded that the activities subsidized by COOP revenues were of greater benefit to unit employees than the availability of another food service. Regarding the "vitally affects" test, readers are reminded that this test applies only when union proposals directly, not indirectly, affect the conditions of employment of non-unit employees. The test is an exception to the rule that proposals aimed at the conditions of employment of non-unit employees are outside the scope of bargaining. In this connection, the following is an excerpt from the Significant Cases No. 89 report of U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. Federal Labor Relations Authority, 952 F. 2d 1434 (D.C. Cir. 1992): The "vitally affects" test applies to third-party matters that don't normally fall within the scope of bargaining, such as the employer's relationship with non-employees and unorganized employees. "To satisfy the test, the union must show that the 'third party matter' about which it seeks to negotiate vitally affects the conditions of employment of bargaining unit members." (Emphasis by court). The test doesn't apply to proposals that otherwise are within the mandatory scope of bargaining merely because they would have some impact on persons not in the unit, as had been erroneously held by FLRA. 54 FLRA No.122 National Association of Government Employees, Local R5-188 and Department of the Air Force, Seymour Johnson Air Force Base, North Carolina, 0-AR-3018, October 30, 1998, 54 FLRA No. 122 Holding In a split decision, FLRA set aside an award denying attorney fees where the arbitrator, although finding that the agency failed to meet its burden of proof regarding its suspension action, denied that part of the grievance claiming that the suspension was in retaliation for the protected disclosure of a prior grievance. Relying on the "substantially innocent" criterion of Allen v. USPS, 2 MSPR 420 (1980) (Allen) for determining whether an award of attorney fees is warranted in the interest of justice, the Authority set aside the arbitrator's denial of attorney fees because he relied on factual findings related to the retaliation issue rather than on the factual findings related to the discipline issue. Member Wasserman, concerned that FLRA was narrowing the gap between arbitration and litigation, took issue with such compartmentalization of the arbitrator's factual findings and instead argued that FLRA should consider the entire record. Summary The grievant, who had previously been suspended for 3 days for making negative statements to patients about medical staff, was suspended for 13 days for giving an "inflammatory" statement about an agency doctor to a patient. When the matter was referred to arbitration, the grievant in effect claimed that the suspension wasn't for just cause and was in retaliation for filing her grievance regarding the earlier 3-day suspension. With respect to the discipline-for-just-cause claim, the arbitrator held that the agency failed to meet its burden of proof. He then turned to the retaliation claim and rejected the union's contention that the suspension constituted retaliation. In justifying his rejection of the latter claim, the arbitrator referred to the earlier suspension and said, among other things, that the grievant had "pushed the envelop[e] of acceptable behavior" and that "only slight modifications in the facts could have converted the grievant's behavior into a serious disciplinary matter." In light of this history, he continued, the agency had a reasonable belief that the grievant repeated her earlier misconduct. The arbitrator accordingly awarded back pay (for the discipline issue) and denied the rest of the grievance (i.e., the portion dealing with retaliation.) When the union subsequently filed a motion for attorney fees, the arbitrator rejected the union's contention that an award of attorney fees was warranted in the interest of justice. The agency's actions, he continued, weren't clearly without merit or wholly unfounded and the union didn't demonstrate that the agency knew or should have known that it would not prevail on the merits. He also rejected the union's claim that an award of fees was warranted in the interest of justice under the "substantially innocent" factor. His denial of attorney fees was appealed to the Authority. The Authority split on the matter. The majority, after listing the five types of cases warranting an award of fees in the interest of justice that are set forth in Allen v. USPS, 2 MSPR 420 (1980) (Allen), focused on the "substantially innocent" criterion of Allen and held that the award denying attorney fees was deficient because the arbitrator's factual findings established that the grievant was substantially innocent. In reaching this conclusion, the majority distinguished between the arbitrator's factual findings with regard to the discipline issue and his factual findings in regard to the retaliation issue. [T]he Arbitrator resolved two distinct claims asserted against the Agency, one (the discipline claim) involving the grievant's actions and whether they merited discipline, and one (the retaliation claim) involving the Agency's actions and whether they constituted retaliation...[A] careful reading of the Arbitrator's Merits and Fee awards makes it evident that he denied the Union attorney fees based on facts he found relevant in resolving the latter claim. That is, the Arbitrator denied fees requested for the claim that the Union won based on his findings concerning the claim the Union lost...[T]he Arbitrator's finding that the evidence was close was made only in connection with the retaliation claim. This finding does not, in our view, support the legal conclusion that the grievant was not substantially innocent of the charges for which she was disciplined. In his dissident, Member Wasserman took issue with the above: I am not persuaded that factual findings on which the Arbitrator relied in finding that the grievant was not substantially innocent are inapplicable to the interest-of-justice criterion...I also am not persuaded that findings of fact can be so compartmentalized in an arbitrator's award and deprived of relevance. I cannot accept the majority's explanation that these findings are inappropriate because they were not part of the Arbitrator's resolution of the just cause issue...Both the MSPB and the Federal Circuit clearly examine the entire record to assess whether the employees were essentially without fault, not merely whether they prevailed on the charges against them. He also said that FLRA should avoid "regulat[ing] or formaliz[ing] the [arbitration] process that it becomes so legalistic as to be indistinguishable from litigation." 54 FLRA No. 113 American Federation of Government Employees and Social Security Administration, District Office, New Bedford, Massachusetts, no. 0-NG-2258, October 22, 1998, 54 FLRA No. 113 Holding In negotiability case involving 11 disputed proposals, all but one of them seeking to place time limitations ["off-interview time"] on the assignment of interview duties, the Authority dismisses one because no allegation of nonnegotiability had been made, holds that one, dealing with a §7106 (b)(2) procedure, is a mandatory subject of bargaining, and holds that the remaining nine proposals are electively negotiable "methods and means" under §7106 (b)(1). Summary When the new Bedford Office of the Social Security Administration (SSA) proposed changing a system for assigning claim-related duties by requiring that SSA Claims Representatives (CRs) be available to interview at all times and to adjudicate to completion those claims for which they conducted the interview, the union submitted 11 proposals that were more or less designed to retain some aspect of previous assignment practices. Under those practices, about half of the CRs were considered available to interview claimants and the other half were considered "off interviews" on any given day. (CRs used "off interview" time to adjudicate claims). The activity generally followed an "alpha" system for assigning claims--i.e., each CR was responsible for all claimants within his or her portion of the alphabet. When circumstances required a CR to interview a claimant outside his or her alphabet, the claim was turned over to the CR with the relevant "alpha" assignment for adjudication. The following is a summary of FLRA's determinations regarding the 11 disputed proposals. The Authority initially held that a proposal requiring the agency to make "every reasonable effort" to provide employees with "off-interview time" as set forth in proposals 3-7 interferes with the right to assign work (which includes the right to determine what duties are to be assigned, when work assignments will be performed, and to whom or what positions the duties will be assigned). "Proposal 1 affects the right to assign work because, by providing for off-interview time, the proposal would prevent the Agency from assigning the task of claimant interviews. Further, when employees are on off-interview time, and therefore unavailable to perform claimant interviews, management would have to assign such duties to other employees." Nor did the proposal constitute an "appropriate arrangement" under §7106 (b)(3). Because the union didn't explain what adverse effects would follow from the agency's plan, nor how its proposal would mitigate those unspecified adverse effects, it failed to show that the proposal was an "arrangement." However, this proposal, along with eight other proposals, were held to be elective subjects of bargaining under §7106(b)(1). A proposal dealing with the assignment of additional interviews to multilingual claims representatives is dismissed because the agency, instead of claiming that the proposal is inconsistent with law, rule, or regulation, claimed the proposal dealt with a matter that is already "covered by" the contract. "Covered by" issues are handled under unfair labor practice, not negotiability, procedures. The proposal was dismissed without prejudice. ##3-7. These proposals, involving, among other things, off-interview time for certain types of claims examiners, interfere with the right to assign work (under the proposals, interview work could not be assigned during off-interview time). Regarding proposal #3, which the union claimed is consistent with current office policy, FLRA, citing 46 FLRA 1494, 1503, said that provisions or proposals interfering with management rights "do not become negotiable merely because they simply restate an existing agency policy or practice." Proposals ##3-6 aren't §7106 (b)(3) "appropriate managements" because the union didn't describe how these proposals were intended to mitigate the adverse the effects os management's work assignment plan. Proposal #7, under which off-interview time can be suspended when the complement of claims representatives is equal to, or less than, total claims representatives staff, interferes with right to assign work and does not constitute a §7106(b)(2) "procedure." However, FLRA later finds proposals ##3-7 to be electively negotiable "methods and means." #8. A proposal prescribing the length of time that the agency must wait before it can assign a representative to interview a claimant interferes with the right to assign work, which includes the right to determine when work assignments will be performed. "By requiring the Agency to wait for a period of 30 minutes before assigning claimant interviews, the proposal would effectively prevent the assignment of interviewing duties for a prescribed period of time." As the union made no claim that the proposal is a §7106 (b)(2) procedure or a §7106 (b)(3) appropriate arrangement, FLRA concluded the proposal was not a mandatory subject of bargaining. It was, however, an electively negotiable "methods and means" under §7106 (b)(1). #9. A proposal establishing a rotational system for assigning interviews to claims representatives is a mandatory subject of bargaining. Because management didn't contend that the CRs "are not equally qualified to perform the designated task of claimant interviews, the proposal doesn't interfere with the right to assign work." "[N]othing in Proposal 9 prevents the Agency from assigning the task of interviewing claimants. The Authority has held that the assignment of duties to equally qualified employees does not affect the exercise of management's right to assign work." [41 FLRA 1309, 1320, ## 12 and 13; and 31 FLRA 651 cited.] The Authority rejected the agency's claim that the proposal interfered with the §7106(a)(2)(A) right to direct. "[T]he right to direct employees...means to 'supervise and guide [employees in the performance of their duties on the job'...[T]he right to direct employees is exercised through supervising employees and determining the quantity, quality and timeliness of work production and establishing priorities for its accomplishment." #10. A proposal describing the circumstances under which a claims representative will process an "out of alpha" interview and identifies the various duties that CRs must perform while processing interviews, interferes with the right to assign work. Because the union offered no arguments supporting its claim that the proposal deals with a §7106 (b)(2) procedure or a §7106(b)(3) appropriate arrangement, the Authority refused to consider the union's "bare assertions" that the proposal was mandatorily negotiable under those two sections. It did, however, find that the proposal is electively negotiable methods and means under §7106(b)(1). #11. A proposal requiring management to provide additional off-interview time interferes with the right to assign work. It affects the right to assign work because it would prevent the Agency from assigning the task of conducting claimant interviews to CRs during the time that these employees would be off-interview. In rejecting the union's claim that the proposal is a mandatorily negotiable appropriate arrangement, FLRA said the following: Even if we were to assume that, on occasion, some employees would bear a disproportionate share of the interviewing workload, and that the proposal is not limited only to those employees. Thus, the proposal is insufficiently tailored to constitute an arrangement. Elective subjects of bargaining.After finding that proposals ## 1, 3-8, and 10-11 are not mandatorily negotiable, the Authority addressed the union's claim that the proposals were negotiable "methods and means" within the meaning of § 7106(b)(3). Rather than make separate determinations on each of the disputed proposals, it dealt with them collectively. In doing so, it said the following about the scope of § 7106(b)(3)'s reference to "methods and means": The Authority has construed "method" to refer to "the way in which an agency performs its Comments Rotational schemes for assigning work or assigning employees normally are mandatorily negotiable § 7106(b)(2) procedures if the scheme applies to employees that management has determined are equally qualified to perform the tasks. See discussion of proposal # 9, above. Proposals ## 5 and 8 in this case add another important proviso: the scheme may not also place limitations on the kind of tasks to be performed, when they will be performed, etc. It also appears, from FLRA's discussion of # 9, that the Authority will infer that assignment procedure proposals are intended to apply to equally qualified employees unless the agency contends otherwise in its arguments. FLRA No. 109 American Federation of Government Employees National Council of HUD Locals 222 and U.S. Department of Housing and Urban Development, 0-AR-2725, September 30, 1998, 4 FLRA No. 109. Holdings In a split decision (Member Wasserman dissenting), the Authority turned down union exceptions to an award in which the arbitrator held that the agency didn't commit an unfair labor practice or violate the agreement between it and AFGE (representing about 8,800 employees in a nationwide unit consisting of 71 of the Agency's 81 field offices) when it allowed NFFE (representing about 640 employees in 3 field offices) to participate in agency-wide reorganization task forces whose decisions were reached via consensus. "Where an agency's contacts with a union other than the exclusive representative do not exclude the exclusive representative, and preserve the exclusive representative's role in the determination of conditions of employment, the agency is not engaged in direct dealing in violation of the Statute." In his dissent, Member Wasserman rejected the above standard. "In my view, dealing with a labor organization other than the exclusive representative, unless the exclusive representative agrees, necessarily denigrates the exclusive representative and constitutes a per se violation of the Statute." Summary The agency, in establishing various task forces in planning a reorganization, invited both AFGE and NFFE to participate. On January 13, 1994, the agency and AFGE executed a memorandum of understanding (MOU) governing AFGE participation in the planning process. The MOU provided, among other things, that the task forces would operate by consensus, that issues not resolved by consensus would be reserved for bargaining, and that the AFGE Executive Board would have the opportunity to approve program task force consensus decisions prior to their submission to the Assistant Secretaries. In February 1994, AFGE filed a grievance challenging NFFE's participation on the task forces, and the matter was referred to arbitration, where AFGE alleged that inclusion of NFFE representatives on the task forces violated section 7116(a)(1), (3), (5), and (8) of the Statute and Articles 1 and 5 of the parties' collective bargaining agreement. AFGE also claimed that NFFE's participation on the task forces was in derogation of its national exclusive representation rights. The arbitrator, in response to the issues he had framed, denied AFGE's grievance and held that the agency's actions did not violate the MOU or constitute unfair labor practices. He found, among other things, that there was no evidence that the agency refused to bargain with AFGE and that there was no evidence that the agency bargained directly with NFFE concerning the conditions of employment of employees in AFGE bargaining units. He also found that the task forces operated by consensus and that, under the MOU, AFGE's Executive Council could disapprove any consensus and thereby reserve the matter for bargaining. The arbitrator also rejected AFGE's claim that the presence of NFFE representatives on the task forces could "veto" any consensus reached by the agency and AFGE, noting that there was no evidence that NFFE had ever vetoed such an agreement. On appeal, the Authority was divided. The majority, deferring to the arbitrator's findings of fact and relying on principles derived from its earlier "bypass ULP" decisions involving "direct dealings" with employees (as opposed to labor organizations) as well as on NLRB decisions, said the following about the principles it would apply to direct dealings with another union: Where an agency's contacts with a union other than the exclusive representative do not exclude the exclusive representative, and preserve the exclusive representative's role in the determination of conditions of employment, the agency is not engaged in direct dealing in violation of the Statute. In addition, where an agency's contacts with a union other than the exclusive representative do not involve matters within the scope of the statutory authority of the exclusive representative, the agency also is not engaged in direct dealing contrary to the Statute. Applying the above to the facts as determined by the arbitrator, FLRA found that AFGE had retained its right to bargain over matters on which the task forces did not reach consensus and that the presence of NFFE didn't undermine AFGE's statutory rights. AFGE was a full participant in the task force process, and lost none of its rights as exclusive representative as a result of NFFE's participation in the process. If AFGE disagreed with the Agency's decision to invite NFFE, as well as AFGE, to participate in the task forces, it was free to withdraw from the task forces and bargain with the Agency over the implementation of the reorganization in the units that it represents, through bilateral negotiations conducted through whatever ground rules are agreed upon. FLRA also rejected AFGE's claim that the agency's direct dealings with NFFE "demeaned" AFGE, that the arbitrator gave precedence to EO 12871 over the union's statutory rights, or that the agency's actions created multi-unit bargaining without AFGE's consent. Regarding the latter issue, FLRA noted that a party to multi-unit bargaining is bound by the results of that bargaining. However, in the case at bar AFGE "retained the right to bargain over any matters about which the task forces did not reach consensus. Consequently, AFGE was not bound by any matters with respect to which the Agency and NFFE, but not AFGE, reached agreement." FLRA also rejected the union's claim that the award was contrary to § 7113, dealing with national consultation rights (NFFE didn't have NCR rights). "Section 7113 does not . . . however, preclude agencies at the national level from choosing to discuss with unions representing its employees possible agency-wide changes in conditions of employment." In his dissent, Member Wasserman said the following: While the majority opinion purports to recognize the principle of exclusivity, it establishes a standard that is quite at odds with this principle. I point to their holding that "[w]here an agency's dealings with a union other than the exclusive representative do not exclude the exclusive representative, and preserve the exclusive representative's role in the determination of conditions of employment, the agency is not engaged in direct dealing in violation of the Statute. " . . . In my view, dealing with a labor organization other than the exclusive representative, unless the exclusive representative agrees, necessarily denigrates the exclusive representative and constitutes a per se violation of the Statute. . . . I am concerned that there may be circumstances where communications with employees and, by extension, to labor organizations other than the exclusive representative, will now be deemed permissible dealings. . . .[T]he unintended effect of today's decision may actually discourage unions from entering into collaborative relationships by whatever name attaches to them. If those relationships are categorized as endeavors that are clearly distinct from traditional bargaining, rather than an aspect of the bargaining process, today's decision permits an agency to invite unilaterally any number of other unions into the process and deal with them on matters of common concern. If unions holding exclusive recognition realize that their hard-won efforts will extend to other parties who can second guess any agreements reached, the value of entering into collaborative relationships may well be diminished. Comments The majority, perhaps in response to some of Member Wasserman's concerns, emphasized that it wasn't establishing a per se rule. Regarding the arbitrator's suggestion that consensus decision-making wasn't collective bargaining, it said the following: [W]e do not view the Arbitrator as having drawn a bright line between consensus decision-making and bargaining. His decision is not based on that distinction, but on his findings as to the nature and scope of the matters discussed in the task forces. However, to the extent that the Arbitrator drew such a line, we, like the dissent, firmly reject this. Consensus decision-making is not distinct from bargaining; rather, it is one manner in which bargaining may be conducted. See . . . 53 FLRA 312, 319 (1997) [53 FLRA No. 42, reported in Significant Cases No. 120, page 12]. In our view, however, it does not follow that a process that uses consensus becomes, ipso facto, collective bargaining. 54 FLRA No. 106 U.S. Department of Health and Human Services [HHS] and National Treasury Employees Union [NTEU], 0-AR-2766, September 30, 1998, 54 FLRA No. 106. Holding In turning down agency exceptions to an award in which the arbitrator awarded retroactive transit subsidies as a remedy for violating conditional mandatory provisions in an agreement, FLRA holds that transit subsidies permitted by the Federal Employees Clean Air Incentives Act (5 U.S.C. §7905) "constitute legitimate employee benefits in the nature of employment compensation or emoluments[]" and therefore "constitute pay, allowances, and differentials within the meaning of the Back Pay Act." Summary A multi-unit agreement involving several regional operating divisions contained provisions stating that the employer would "take all reasonable actions within its authority to...encourage the use of public transportation by offering public transportation subsidies to the extent permissible by law." It also provided that where the employer (on a national, operating division, or regional basis) claimed that funds were unavailable to pay the subsidy (up to $60 per month), the union would be provided with documentations supporting the claim. When the employer, without providing supporting documentation, told the union that there would be no transit subsidy for FY 1994 and only limited funding for FY 1995, the union grieved and referred the matter to arbitration. The arbitrator found that 6 of the 9 operating divisions violated the above provisions by not making a reasonable effort to offer transit subsidies and/or by not providing sufficient documentation to support the claim that funds were not available and ordered that the employees of these operating divisions be made whole for the monies they lost. In its exceptions to the award the agency argued, among other things, that the Clean Air Incentives Act provides no authority for providing monetary relief; that the decision to pay transit subsidies isn't set forth in the agreement in a non-discretionary, mandatory fashion; and that the failure to pay transit subsidies didn't constitute a withdrawal or reduction in pay allowances, or differentials within the meaning of the Back Pay Act. Noting that it had not earlier addressed the issue of retroactive transit subsidies and acknowledging that the Clean Air Incentives Act neither explicitly nor implicitly requires any payments, the FLRA said that the question before it was whether the relief awarded by the arbitrator is authorized under the Back Pay Act. That act, the Authority continued, authorizes backpay where the arbitrator finds (1) the aggrieved employee was affected by an unjustified or unwarranted personnel action and (2) that action directly resulted in the reduction or withdrawal of the grievant's pay, allowances or differentials. Regarding the "but for" requirement cited in earlier cases, FLRA said that that requirement is not a separate, independent element of the Back Pay Act, but merely an "amplification" of the aforementioned two requirements. Because a violation of a collective bargaining agreement provision constitutes an unjustified or unwarranted personnel action, FLRA said the arbitrator satisfied the first requirement of the Back Pay Act when she found that the agency violated the agreement. Turning to the second requirement, FLRA rejected the agency's contention that the contract provisions didn't constitute a mandatory personnel policy under the Back Pay Act. The violated provisions, as interpreted by the arbitrator, constituted a conditional mandate requiring the agency to fund transit subsidies under certain circumstances--i.e., when funds over and above what the operating divisions had already planned for other uses were available. Because each operating division had separate budgetary authority, the arbitrator made separate factual findings regarding the availability of discretionary funds at each operating division, determining whether excess funds were available. Where they were not available, she held that there was no violation for failing to pay transit subsidies. Where they were available, the failure to fund transit subsidies "resulted in" the loss of such subsidies. The Authority then turned to the issue of whether transit subsidies constitute "pay, allowances, or differentials." It acknowledged that in Customs Service, Chicago-O'Hare and National Treasury Employees Union, Chapter 172, 23 FLRA 366, 367-68 (1986) it held that personal commuting expenses didn't constitute pay, allowances or differentials under the Back Pay Act. However, Customs is distinguishable from this case. In Customs,which predated the Clean Air Incentives Act, the Authority found that: (1) there was no authorization under law and regulation (the Travel Expense Act and Federal Travel Regulations) for the payment directed by the Arbitrator of the personal commuting expenses for the grievants; and (2) the expenses were not normal, legitimate employee benefits in the nature of employment compensation or emoluments. Thus the award satisfied the requirements of the Back Pay Act and the agency's exceptions were denied. PERFORMANCE BASED ACTIONS Charles L. Greer v. Department of Army, AT-0432-96-0186-I-1, August 28, 1998. Holdings
Summary The appellant challenged his removal from the position of Research Chemist based on unacceptable performance. At the initial decision level, the administrative judge found that the agency failed to notify the appellant that he was unacceptable prior to the start of the opportunity to improve. The judge found that the last rating of record was a Level 2 rating in the agency's five level system, and, therefore, reversed the removal action based on a failure to provide a reasonable opportunity to demonstrate acceptable performance. The full Board reviewed the notice of opportunity to improve and noted that the language could have been confusing to the administrative judge. Specifically, the notice stated, "Your current performance evaluation is not satisfactory and requires remedial action. In particular, it was noted that you had not met [critical element] number three. . . ." Since the last rating of record, issued five months earlier, had been at the Level 2 (identified as "fair" in the agency's program), the Board agreed that there was some basis for the confusion. However, the full Board went on to examine the rest of the notice as well as a number of counseling memoranda given to the employee prior to the opportunity period and during it. Based on the clear language of these memoranda, the Board found that the appellant was placed on clear notice that he was currently failing in a critical element and that if he did not bring performance above that failing level, formal action could be taken against him. In reviewing the remaining requirements for proving an action under the procedures of 5 CFR Part 432, the Board examined the validity of the performance standards given to the appellant. The Board reiterated its holding from previous case law that scientific and highly technical jobs often do not allow for objective or quantifiable measurements. Instead, the Board grants deference to the expertise of the manager who must make a subjective determination regarding the quality of the scientific research submitted by the appellant. The Board took note that the appellant had been given a model research plan as a guide for developing his own research plan and that his performance resulted in a plan that was inadequate compared to the model. The Board then disposed of several harmful error arguments that the appellant put forth unsuccessfully. Among them was the argument that because the collective bargaining agreement required the supervisor to meet with an employee and assist the employee in improving during the opportunity period, the agency erred in having a higher graded research scientist conduct weekly counseling sessions with the appellant during the opportunity period. The Board found no error since the supervisor met with the appellant during the opportunity period, in addition to the weekly meetings with the senior scientist. The Board found that the agreement did not prohibit counseling and assistance in addition to that required by the contract. The Board reversed the decision of the administrative judge and sustained the removal action. Comment This decision contains a couple of valuable lessons and reminders about some key issues in performance based actions. When an employee's performance drops to unacceptable, and the last rating of record was at any level above that, agencies must be very clear in placing the employee on notice regarding the unacceptable performance. Here, the agency created confusion by citing to a "current evaluation" which tends to connote a rating of record. Luckily, the Board was willing to examine a host of other evidence that spoke to how clearly the agency had conveyed that the employee was failing to perform acceptably. Secondly, agencies should remember that although subjective standards are sufficient for technical/scientific jobs, it is always wise to provide models, examples and mentoring to create a more precise benchmark for the employee. Finally, agencies should never neglect the provisions of a collective bargaining agreement addressing specific obligations during performance opportunity periods. BACK PAY Martin v. Department of the Air Force and the Office of Personnel Management, AT0752930255-X-2, August 19, 1998. Holding Upon review, the majority of the Board agreed with OPM, in that the Board's previous decision to award back pay during a period when the appellant was incapacitated, was inconsistent with previous holdings and a misinterpretation of civil service law. Summary In this case, the appellant's removal was reversed by the Board on appeal. While his appeal was pending, the appellant took interim employment and incurred an on the job injury resulting in his being temporarily unable to work. After the removal was reversed, he sought back pay for this period. The majority of the full Board (Chairman Erdreich issued a strong dissenting opinion) awarded back pay for this period, finding that were it not for the unwarranted personnel action, the appellant would not have sought outside employment, and thus would not have been injured on the job. On November 22, 1996, the Office of Personnel Management (OPM) intervened in the case to challenge the Board's decision. OPM argued that the Board's decision was in direct conflict with OPM's interpretation of the back pay statutory authority at section 5596 (b)(1)(A)(i) of title 5, United States Code. As part of its argument, OPM stated that its regulations on back pay clearly prohibit back pay for any period when an employee is not ready, willing, and able to work and that the Board's decision failed to give OPM's regulations due deference. Finally, OPM stated that the Board's decision would open up the "ready, willing, and able" standard in the current regulations to speculative application of what would have occurred had the employee not been affected by an unwarranted personnel action. As part of its review, the Board noted that the administrative judge found the agency to be in noncompliance with the Board's final decision based on the agency's refusal to award back pay for the period in question. The Board concurred with this finding, but remanded the case to the regional office for further adjudication to determine the amount of back pay offset due to workers' compensation payments received by the appellant. While the administrative judge recommended that the amount of back pay offset should be $4,098, the agency requested that the compliance proceedings be held in abeyance until OPM's intervention petition was decided. The Board agreed. In reviewing OPM's request for review, the Board (Vice Chair Slavet dissenting) decided that it would defer to OPM's interpretation of the Back Pay Act as manifested in 5 CFR 550.804 because the regulation constituted a reasonable interpretation of the Back Pay Act. The Board noted that OPM, pursuant to its statutory authority to establish regulations to carry out the purpose of the Back Pay Act, had promulgated interpretive regulations setting out certain exclusions to the agency's back pay responsibility. The pertinent exclusion, 5 CFR 550.804(c), prohibits an agency from awarding back pay to an employee affected by an unjustified personnel action for any period in which the employee was not "ready, willing, and able to perform his or her duties because of an incapacitating illness or injury." The Board found that OPM's longstanding interpretation of its regulation was consistent with the statute. Based on its findings, the Board determined that the appellant was not entitled to back pay and that there was no other outstanding compliance issue for this case. The appellant's petition for enforcement was dismissed as moot. COMPENSATORY DAMAGES ... MIXED CASES ... JURISDICITON Harley D. Crosby v. Postal Service, AT-0752-95-0733-B-2, AT-0752-95-1205-B-1, AT-0752-95-1205-B-2, June 4, 1998. Holding The Merit Systems Protection Board holds that it continues to have the authority to consider requests for compensatory damages and to award such relief in mixed cases before the Board. Summary The court decision in Gibson v. Brown, 137 F.3d 992 (7th Cir. 1998), held that only the judiciary (and no administrative agency) has the authority to award compensatory damages following a finding of discrimination. Because of this decision, an administrative judge of the Merit Systems Protection Board certified an interlocutory petition to the full Board in Washington, D.C. The petition asked the Board to determine whether the circuit court decision in Gibson prevented the judge from acting on an appellant's request for damages in mixed cases (one with an appealable action and an allegation of prohibited discrimination) pending before the judge. The Board noted that there is a split within the Federal courts since the court's decision in Fitzgerald v. Secretary, U.S. Department of Veterans Affairs, 121 F.3d 203 (5th Cir. 1997) is contrary to Gibson. While noting that the case before it did not come up in the 7th Circuit controlled by Gibson, the Board declined to address the merits of the split. The Board also noted that the Government filed a petition for rehearing in Gibson. The Board then described the relationship between the Equal Employment Opportunity Commission (EEOC) and the Board and how that relationship requires the Board to defer to EEOC on matters involving discrimination law. In this regard, the Board discussed Jackson v. Runyon, EEOC No. 01923399, 93 FEOR 3062 (Nov. 12, 1992), request to reconsider denied, EEOC Request No. 05930306 (Feb. 1, 1993) in which EEOC held that compensatory damages are properly recoverable in the administrative process. The Board concluded that this compensatory damages decision involves a matter of discrimination law on which EEOC has ruled and that the Board, therefore, was bound by EEOC's decision. While concluding that it has the authority to consider requests for compensatory damages in mixed cases, the Board said that the matter would be "ripe for reconsideration" if EEOC should change its Jackson position. The Board returned the case to one of its regional offices for consideration of the appellant's request for compensatory damages. RELIGIOUS DISCRIMINATION ... REPRISAL ... REASONABLE ACCOMODATION Elan Dorsey v. Department of the Air Force, SF-0752-96-0350-I-4, June 2, 1998. Holding In order to establish a prima facie case of religious discrimination, an appellant must show: (1) that he had a religious belief that conflicted with an employment requirement, (2) that he informed the agency of the belief, and (3) that he was disciplined for failing to comply with the employment requirement. Summary The agency removed the appellant from his GS-12 General Engineer Position for: (1) deliberate misrepresentation, (2) failure to follow proper procedures in requesting leave, (3) refusal to comply with an order, (4) falsification of an official document, and (5) absence without leave. Each of these charges related in some manner to the appellant's religious beliefs as a Seventh-day Adventist which prevented him from working on his Sabbath (sundown Friday to sundown Saturday). An administrative judge of the Merit Systems Protection Board sustained the charges and upheld the removal. He also denied the appellant's claims of religious discrimination and reprisal for having filed discrimination complaints about his situation. The Board rejected the appellant's argument that the agency failed to provide reasonable accommodation for his religious beliefs, finding that the appellant had already raised the reasonable accommodation argument with Equal Employment Opportunity Commission (EEOC) and lost. The Board said the principle of collateral estoppel prevented it from reviewing the issue again. The Board noted that the EEOC found the agency had met its burden to reasonably accommodate the appellant's religious beliefs by attempting to schedule around the appellant's holy days when sufficient personnel were available and allowing voluntary shift swaps. Even assuming that collateral estoppel didn't apply, the Board found that the appellant failed to establish a prima facie case of religious discrimination. To do this he would have had to show: (1) that he had a religious belief that conflicted with an employment requirement, (2) that he informed the agency of the belief, and (3) that he was disciplined for failing to comply with the employment requirement. While meeting the first two elements, the Board found that the appellant had not been "disciplined" within the meaning of the third element. Here, the Board noted that the appellant argued that "but for" the agency's failure to reasonably accommodate his religious beliefs, he would not have committed such misconduct. The Board noted that the appellant did not argue that his religious beliefs required him to engage in the misconduct (including misrepresentation and falsification). As a result, the Board concluded that "[the appellant's religious beliefs merely prevented him from working on his Sabbath]." Finally, in reviewing the EEOC's decision in the appellant's case, the Board commented that it "appears to be based on the principle that employees have a duty under title VII to cooperate with measures suggested by their employers, making good faith attempts to satisfy their religious needs through the means offered by employers." In this case, the employee apparently did not make a good faith effort when he refused to swap shifts with coworkers on non-Sabbath days‐one of the accommodations offered to the appellant. The Board also rejected the appellant's argument that he had received disparate treatment. In this regard, the Board noted that the employee failed to identify any other agency employee who was not a Seventh-day Adventist and who had not been removed for engaging in misconduct similar to that charged against the appellant. The Board, however, found that its administrative judge had applied the wrong elements of proof to the appellant's argument that the agency had retaliated against him for filing discrimination complaints. The Board noted that, in order to establish a claim of retaliation, the appellant must have shown that: (1) he engaged in complaint activity, (2) the accused official knew of this activity, (3) the removal could have been retaliation, and (4) a nexus is established between the motive and the removal. Here, the Board concluded the first two elements were met. The third was met as well because some of the discrimination complaints were against the agency's adverse action proposing and deciding officials and thus there "could" have been retaliation. On the fourth element, the Board noted that its judge had not determined whether there was such a nexus. Accordingly, and noting that such a determination would require the weighing of conflicting testimony and the assessment of witness credibility, the Board remanded the case to one of its regional offices for further processing. The Board said that if the required nexus is established, the agency would be permitted to show by a preponderance of the evidence that it would have removed the appellant absent the discrimination complaints being filed. CHARGES/PENALTIES ... MIXED-MOTIVE John J. Caronia v. Department of Justice, DA-0752-96-0428-I-1, May 8, 1998. Holding The Board may mitigate a penalty in cases where the appellant proves that the agency took an action for mixed motives, one permissible and the other impermissible. Summary The appellant was removed from his position as a Supervisory Security Officer based on two charges of misconduct: bringing an unauthorized firearm into a prison facility and conduct unbecoming of a law enforcement officer. The following background provides information pertinent to the specifications supporting the two charges. The appellant requested leave due to depression and other medical conditions. While on leave, coworkers called to check on the appellant and he explained to them that prior to going on leave, he had been so stressed that he thought of killing the Assistant Security Officer and the Captain of the correctional facility. He repeated this statement to other coworkers when he returned to duty from the five month period of leave. One of the coworkers repeated this information to the appellant's supervisor who advised facility security personnel that the appellant might have a concealed weapon in his vehicle. The appellant was stopped at the gate, his vehicle was searched, and a weapon and ammunition were found. Following an investigation into the appellant's statements to his coworkers, the agency removed the appellant from Federal service. On appeal, the administrative judge sustained the first charge despite the appellant's argument that he forgot about the weapon being in his car and did not intend to bring it onto the prison property. The judge did not sustain the second charge. Despite the appellant's admission that he made the statements, the judge noted that he did so in response to inquiries from friends about his medical condition and that he was making statements about his prior mental status, not his current status. The administrative judge found that the action taken by the agency was based on disability discrimination because the agency perceived the appellant to be disabled, even though he was not. The judge found the discrimination to be the sole motive for the action and reversed the removal. When the full Board reviewed the decision, the members agreed with the administrative judge that the agency did not prove the second charge of "conduct unbecoming." Further, the Board did not allow the agency to introduce (via their petition for review) the concept of disruptive behavior since it had not been a part of the original charge. The agency also argued that the appellant was not disabled since it was a temporary condition which he had recovered from by the time of the removal. Nevertheless, the Board found that although no disabling condition existed, there was evidence from the deciding official that the agency "erroneously regarded" the appellant to be disabled. Based on this finding, the Board went on to find that there was direct evidence of discrimination and therefore, the Board applied the direct evidence analysis in reviewing the agency's action. Under this analysis, the appellant must show that the disability discrimination was a motivating factor in the agency's action and that the agency's action was prohibited. In this case, the Board noted that the agency had mixed motives: the "impermissible" motivating factor of perceived disability and the "permissible" factor of the sustained charge of bringing a firearm into the prison facility. Noting that Title VII allows Federal employees to receive some relief for disability discrimination if an employee can demonstrate that the agency had mixed-motives for its action, the Board went on to determine whether the agency proved that it would have taken the same action absent the impermissible motivating factor (disability discrimination). In its review of the testimony, the full Board accepted the appellant's statements that he had forgotten that the weapon and the ammunition were hidden in his car and found that the appellant's actions were not "knowing violations." Additionally, the Board considered that the agency only searched the appellant's car based on the reaction of agency personnel to his statements and that the deciding official had linked the appellant's statements of past homicidal ideation with finding the weapon in the car. In its penalty assessment, the Board corrected the erroneous holding of the administrative judge that the agency acted solely on the impermissible motive of disability discrimination. Finding that the agency sustained its first charge, and that it acted due to a mixed motive, the Board mitigated the removal penalty to a 30-day suspension. It was this mitigation of penalty analysis that Vice Chair Slavet disagreed with in her concurring and dissenting opinion. The Vice Chair argued that the Title VII case law only allowed the Board to sustain or reverse the agency's action once it was determined that the agency would not have taken the action (in this case, a removal) absent the impermissible motivating factor. The dissenting opinion states that the Board was in error when it substituted a 30-day suspension for the removal on the basis that the agency probably would have taken some disciplinary action, even though it could not sustain a removal. Comment This case is instructive on the subject of the mixed-motive analysis which is present in Title VII discrimination cases. As always, the Vice Chair's dissent provides a wealth of cases for potential research on the subject. The Board continues to be keenly interested in those cases where it believes discrimination occurred because of a "perception" of disability. Despite the fact that the agency's first charge--bringing a firearm into a prison facility--is so closely tied to the agency's core mission, the Board allowed the "taint" of the perceived disability to reduce the significance of the offense and, therefore, the penalty. ADMINISTRATIVE LAW JUDGES ... WHISTLEBLOWING Barbara L. Rutberg v. Occupational Safety and Health Review Commission, BN-1221-96-0099-W-2, April 17, 1998. Holdings
Summary Following "several years of tight budgets" and being "asked repeatedly by the Congress and the Office of Management and Budget about [its] regional structure," the agency abolished one of its Administrative Law Judge positions in the Boston office resulting in the separation of the appellant through reduction in force (RIF) procedures. The appellant sought review of the matter by an administrative judge of the Merit Systems Protection Board (MSPB), arguing: (1) that there was not a proper basis for the RIF, (2) that she had been separated in reprisal for whistleblowing, and (3) that she had been constructively removed under Section 7521 of Title 5 of the United States Code. The judge found that the agency had reprised against the appellant because of her disclosures of alleged abuse of authority and gross mismanagement by her supervisor. He reversed the action but did not address the constructive removal issue. The full Board in Washington, D.C. granted the agency's petition for review of the judge's decision after resolving an interim relief issue in favor of the agency. In this case, the agency made a determination that it would be unduly disruptive to return the appellant to her position in Boston during interim relief and, instead, placed her on administrative leave and then detailed her to a position in Atlanta. When the appellant refused to report for the detail, the agency placed her in a non-pay absence without leave status. The Board noted that it is well-settled that an interim relief order does not insulate an appellant from subsequent agency action based on conduct occurring after the interim relief begins and thus found the agency in compliance with the judge's interim relief order. The agency provided documentation and testimony about the content and chronology of the agency's activities leading up to the appellant's separation in 1996, six months after her last whistleblowing activity and about a year after her first. The head of the agency testified that, of the options available to him to address his agency's financial and operations difficulties, he decided, among other things, to abolish one position in the Boston regional office using RIF procedures. While knowing that the appellant had made disclosures about her supervisor (which he ordered investigated), the Chairman testified without specific rebuttal that he did not know at the time of his decision that the appellant would be the one to be reached in the RIF. The Board noted further that the agency could not have known ahead of time that the appellant would decline assignment to another position in the agency, setting up her separation (in part, because she had a meeting with the head of the agency in which she was undecided on her course of action). The Board rejected its judge's finding that the agency could have exercised options other than RIF. For example, the Board rejected the judge's finding that the agency could have assigned the appellant out-of-region cases to balance workloads. The Board said this was directly contrary to the agency's primary reorganization objective of abolishing a position in Boston and offering the incumbent reassignment in Washington. Here, the Board also noted that the Boston option was chosen, not for financial reasons (other actions took care of those concerns), but rather because the Boston workload did not support the number of positions there. Overall, the Board rejected its judge's conclusion that the agency's decision to abolish a position in Boston was "weak and/or inconclusive," concluding instead that the evidence supporting the agency's decision was "fairly strong." On the other hand, the Board concluded that the evidence supporting some retaliatory motive on the part of the agency appeared "fairly weak." Weighing the evidence that there was "slight evidence" of retaliatory motive on the part of the agency and that the reorganization was agency-wide and affected its employees similarly, the Board concluded that the agency had shown by clear and convincing evidence that it would have separated the employee absent her 1995 disclosures. The Board also concluded that the appellant failed to show that it had jurisdiction over her claimed constructive removal. Here, the Board noted that the essence of the appellant's complaint was not that the agency "tried to influence her decisions" or "undermine her ability to decide cases impartially"--arguments that she could have made (but weren't) concerning the constructive removal. The judge's decision was reversed and the agency separation action was upheld. CHARGES AND PENALTIES Irene Mann v. Department of Health and Human Services, SF-0752-96-0657-I-2, March 9, 1998. Holding Section 641 of Title 18 of the United States Code, making it unlawful to knowingly convert to one's use "any thing of value" of the United States or one of its departments or agencies, includes intangibles, such as an agency's Federal Express account number. Entering incorrect information on an agency document constituted "dishonest conduct" in violation of the Office of Government Ethics' governmentwide standards of conduct for Federal employees set forth in Part 2635, Section 101 of Title 5 of the Code of Federal Regulations. Summary The agency removed the appellant from her Purchasing Agent position based on four charges: (1) engaging in dishonest conduct in violation of Office of Government Ethics (OGE) standards, (2) obstructing an investigation, (3) using her public office for private gain in violation of OGE standards, and (4) converting Government property in violation of Title 18 of the United States Code. These charges all related to the (admitted) personal use of a Federal Express envelope and a preprinted air bill that contained the agency's Federal Express account number. An administrative judge of the Merit Systems Protection Board (MSPB) sustained only the first and third charges but upheld the removal penalty. The appellant sought review of the matter with the full Board in Washington, D.C. arguing, among other things, that removal was too severe. The Board determined that the judge correctly upheld the first charge. Here, the appellant had used a false name on the Federal Express document at issue and thus engaged in dishonest conduct in violation of OGE's governmentwide regulations at Part 2635, of Title 5 of the Code of Federal Regulations--Standards of Ethical Conduct for Employees of the Executive Branch. This part, at Section 2635.101, describes the basic ethical obligations of employees in the public service. In particular, the Board concluded that the appellant's dishonest conduct was in violation of Section 2635.101(b)(1) of the ethics standards which states: Public service is a public trust, requiring employees to place loyalty to the Constitution, the laws and ethical principles above private gain. The Board determined that its judge was correct in not sustaining the second charge concerning obstruction but was wrong in not sustaining the fourth charge concerning conversion of Government property. The judge had ruled that the fourth charge was "unnecessarily duplicative" of the third charge of violating OGE's ethics standards and apparently sought to merge the two into a single charge (the Board wasn't sure). Nevertheless, the Board reviewed its caselaw on circumstances where merger is appropriate and concluded in this case it wasn't. In support of this conclusion, the Board noted that the appellant's personal use of the Federal Express document was not a "general charge" such as "conduct unbecoming" and was not a "continuation" of the third charge. The Board also noted that the proof of the underlying conduct for each charge did not automatically mean that both charges would have been proven. The Board did not sustain the third charge (using public office for private gain) because it concluded that the agency failed to prove that the appellant had personally gained from her activities. The Board noted that the Federal Express package in question had not been delivered (it was returned), the agency did not show that it was billed for the package, and the appellant eventually paid Federal Express for the package. Finally, the appellant was charged with actual private gain, not with giving the appearance of private gain. The Board did, however, sustain the fourth charge (converting of Federal property). Here, the Board noted that Section 641 of Title 18 of the United States Code makes it unlawful to knowingly convert to one's use any thing of value of the United States or one of its departments or agencies. It noted that there does not need be a showing of intent to keep the thing and violations would include misuse or abuse of a thing of value. Here, the Board specifically ruled that a "thing of value" includes intangibles, such as the agency's Federal Express account number used by the appellant. Since the number is used to authorized to provide payment to Federal Express and its use is controlled by the agency, it was a "thing of value." The Board then reviewed the penalty, noting that when all of an agency's charges are not sustained (two of four in this case), the Board has the authority under its decision in White v. U.S. Postal Service, 71 M.S.P.R. 521 (1996) to "independently and responsibly . . . determine a reasonable penalty." [The legality of the Board's decision in White is currently under review by the Court of Appeals for the Federal Circuit in Devall v. Navy, DA0752950794-I-1, 2/24/97.] While noting that the sustained charges are serious (particularly the sustained charge of violating a criminal statute) and the appellant had been specifically put on notice that personal use of the Federal Express account would be improper, the Board found that there were significant mitigating factors. These included (1) nineteen years of service without discipline, (2) the misconduct was "isolated" and not repeated, and (3) the misconduct had not affected work performance. The Board also found in her favor the fact that the appellant's supervisor permitted her to remain in her position for several months after he became aware of the misconduct. While stating that it "carefully considered" the agency's deciding official's testimony that he would have removed the appellant even if only the first charge was sustained because it involved honesty, the Board concluded that a different result was appropriate. Here, the Board noted that the agency did not provide a table of penalties that would support the deciding official's testimony that he would have imposed removal for a first offense of dishonest conduct. The Board concluded that a sixty-day suspension without pay is the reasonable penalty in the case rather than removal. Comments Once again, the Board's self-proclaimed authority to "independently" determine the penalty in cases where all of an agency's charges are not sustained has been invoked. Here, the Board specifically upheld the charge (dishonest conduct) that the agency's adverse action deciding official clearly testified would have been sufficient to warrant removal. This lack of deference to deciding officials is particularly troublesome, especially when the issue is a proven violation of basic governmentwide standards of ethical conduct (and, in this case, proven violation of criminal statute). Perhaps even more troublesome is the implication that an employee cannot be removed for a first offense of "dishonest conduct" unless the agency has a table of penalties showing that it is proper. Again, as noted above, the Board's authority to treat penalties in this manner is under review in Devall v. Navy. UNACCEPTABLE PERFORMANCE Betty J. Shorey v. Department of Army, DA-0752-96-0019-I-1, January 6, 1998 Holding Where unacceptable performance is charged in an action taken under Chapter 75, a pre-established performance standard need not exist, as long as the agency can prove that it measured an employee's performance in a reasonable and accurate manner. Summary The initial decision in this case was rendered in January 1996, when the administrative judge found the agency had sustained two charges involving misconduct but failed to sustain the third charge of unacceptable performance and, therefore, mitigated the removal action to a 60-day suspension. In that decision, despite extensive evidence of unacceptable performance, the administrative judge found that the unacceptable performance charge could not be upheld because the agency's performance standards did not set an understandable benchmark for the employee to follow. For the next two years, the agency and the appellant engaged in settlement and breach of settlement arguments before the Merit Systems Protection Board. The Board finally determined that the agency had breached the agreement and reinstated the appeal. In what is hopefully the final opinion and order in this case, the Board found that the administrative judge erred in applying requirements set out in case law addressing actions taken under Chapter 43 since this action was taken under Chapter 75. The Board noted that the administrative judge had actually sustained the three specifications under the charge of unacceptable performance but failed to sustain the charge itself only because the judge found that the performance standards previously given to the employee did not provide the employee with a clear benchmark by which to measure her performance. The Board found that the administrative judge had erroneously relied on case law governing actions taken under Chapter 43 and had failed to apply the correct standard under Chapter 75. Under that standard, the agency was required to prove that it had accurately and reasonably measured the employee's performance. The Board found sufficient evidence of this in the record from the initial decision and therefore, sustained the charge of unacceptable performance and reinstated the agency's removal action. While the appellant notified the Board in May 1998 that she had been hospitalized since the time of the Board's final decision and that she wished to appeal the decision, there has been no filing with the Federal Circuit Court of Appeals at this time. Comment Since we rarely see cases involving unacceptable performance reach the full Board, it is reassuring to see the Board reiterate its position on the difference between the standards established for Chapter 75 and Chapter 43 actions. When an agency elects to take action under Chapter 75, it assumes the higher burden of proof (preponderance of the evidence) and takes the risk of mitigation, but it leaves behind all of the requirements of Chapter 43, including the close inspection of performance standards. The agency is ultimately only responsible for proving that it accurately and reasonably measured an employee's performance and found it unacceptable. WHISTLEBLOWING ... JURISDICTION Kenn W. Thomas v. Department of the Treasury, AT-1221-96-0406-W-1, January 5, 1998. Holdings
Summary After the Office of Special Counsel failed to act on his complaint within 120 days, the appellant filed an individual right of action appeal (IRA) to the Merit Systems Protection Board claiming that his nonselection for promotion was in reprisal for being a whistleblower. A Board administrative judge dismissed his appeal for lack of jurisdiction after finding that the appellant was not a "whistleblower" under the law because the only activities claimed by the appellant to be whistleblowing were his earlier grievances on the non-selection. The appellant requested review of the matter by the full Board in Washington, D.C., arguing that he had actually engaged in other activities and for the first time in the proceedings provided copies of letters he had written to the Office of Special Counsel and members of Congress complaining about fairness of his agency's merit promotion policy. The Board found that the judge's findings were in error because, while the appellant had not provided documentary evidence of his letters to members of Congress to either the Special Counsel or the Board's judge, he did submit other documents referring to the letters. The Board considered this to be a "non-frivolous allegation" that he had made disclosures and ruled that the letters provided for the first time at the Board level could be properly considered. However, the Board concluded from a part of a decision by the Court of Appeals for the Federal Circuit (Ellison v. MSPB F.3d at 1035 discussing what constitutes waste, fraud, and abuse) that "a disclosure which alleges only that an agency's selection process was unfair because the agency considered non-merit factors is not the 'type of fraud, waste, or abuse that the [Whistleblower Protection Act] was intended to reach.'" The appellant had claimed that the agency's merit promotion actions were in violation of Section 2301 of title 5 of the United States Code ("recruitment should be from qualified individuals" and "selection and advancement should be determined solely on the basis of relative ability, knowledge, and skills, after fair and open competition which assures that all receive equal opportunity") and Section 2302 (it is a prohibited personnel practice to "grant any preference or advantage not authorized in law, rule, or regulation"). The Board also ruled that, like its determination that the appellant's allegations did not violate Sections 2301 and 2302 of title 5 of the United States Code, similar alleged violations of the agency's Merit Promotion Plan and Equal Employment Opportunity Policy were not the type of waste, fraud, and abuse covered by the Whistleblower Protection Act. The Board did, however, conclude that the appellant's complaints about how his agency processed his grievances about the matter did constitute allegations of an abuse of authority under Section 2309(b)(8) of title 5 of the United States Code. Here, the appellant complained that an agency official had told him that his grievance was settled only because it feared prosecution by the Office of Special Counsel for violations of merit systems principles and that the grievance investigation had been assigned to persons accused of wrongdoing. The Board also concluded that the appellant's allegation that the rights of an entire category of employees (seasonal employees) were violated by the agency's selection process was an allegation of an abuse of authority under Section 2302(b)(8). Finally, the Board addressed the issue of whether, as required by law, the appellant had met his obligations with respect to the Office of Special Counsel(OSC) concerning his allegations of whistleblower reprisal. For guidance, the Board reviewed the Federal Circuit decision in Ward v.MSPB, 981 F.2d 421 (that an employee is obligated to inform the OSC of the "precise ground of his charge of whistleblowing" and that the basis for determining the nature of charges of whistleblowing to the OSC are the statements made to the OSC, not the appellant's subsequent characterization of those statements in an appeal to the Board). While noting that this decision could be interpreted as creating a "correct labeling" requirement, the Board concluded that to do so would be "inconsistent with the overarching purpose of the exhaustion requirement." The Board went on to say that, even though an appellant may mislabel an allegation (here, the appellant claimed violations of law, rule, or regulation rather than abuse of authority), the appellant has met his or her obligations so long as factual allegations, if proven, would constitute violations. The Board commented that requiring an appellant to correctly label a complaint would be the "sort of artificial distinction or technicality" that led to the Whistleblower Protection Act. The Board also commented that it would be unreasonable to expect a pro se appellant (even though the appellant in the current case was represented) to understand the distinction between abuse of authority allegations and waste, fraud, and abuse allegations. Having found that the appellant met the "exhaustion requirement" by providing sufficient information to the Special Counsel with which to investigate the allegations and that the appeal appropriately raised issues of abuse of authority, the Board remanded the case back to one of its regional offices to conduct a hearing concerning the reasonableness of the appellant's belief that abuses of authority occurred, and if reasonable belief is found, to conduct a hearing on the merits of the appeal. Comment Because allegations concerning the "fairness" of agencies' merit promotion process are common, it is useful to know that the Board clearly does not consider them to be technical allegations of "waste, fraud, and abuse" under the Whistleblower Protection Act. This decision is again a reminder, though, that the same factual basis for a grievance can appropriately be raised in the context of the individual right of action process. The decision also makes it clear that employees don't have to be "clear" when they pursue matters before the Special Counsel and the Board. All employees are required to do is provide factual bases that may arguably be violations of the Act. Not only was the employee not required in this .case to describe what part of the law was being violated, he was permitted to introduce evidence of whistleblowing for the first time at the full Board level. The agency is thus expected to "guess" what violations of law are being alleged and to "guess" what evidence backs up the appellant's claim of making protected disclosures. Here, the Board (over the agency's objections) permitted the appellant to introduce into evidence for the first time at the full Board level, letters he had sent to Congress about his case. These were letters that certainly were available earlier and certainly important to determinations as to whether protected disclosures had been made and how they related to the allegations before the Special Counsel and the Board's administrative judge. 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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