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 Number 131 September 1999 Court Decisions | FLRA | MSPB This report covers selected decisions and other actions of the Federal Labor Relations Authority (Authority or FLRA) under the Federal Service Labor-Management Relations Statute (FSLMRS), the Merit Systems Protection Board (Board or MSPB), the courts, and other authorities whose actions affect Federal employee and labor-management relations. Selection is based generally on whether a case creates or modifies precedent or provides insights that are of interest to a wider spectrum of agency management than only the parties to the cases themselves. COURT DECISIONS MITIGATION ... PENALTY. The Federal Circuit agrees with OPM and holds that the MSPB does not have independent authority to set penalties when it sustains some, but not all, of an agency's charges. Janice R. Lachance v. Larry Devall, 178 F.3rd 1246 (Fed. Cir. 1999). FLRA DECISIONS PERFORMANCE ... REMEDIES FOR CONTRACT VIOLATIONS. FLRA turned down union and agency exceptions to an award in which the arbitrator, although finding that the agency violated the spirit of the collective bargaining agreement, also found that there was insufficient evidence to support higher ratings for the grievant. FLRA rejected the union's claim that the arbitrator, in finding a contract violation, was required to set aside the grievant's appraisal. "The Union has not demonstrated that the Arbitrator was legally obligated to provide the remedy that the Union desired." National Association of Government Employees, Local R4-45 and Defense Commissary Agency, Langley Air Force Base, Virginia, 0-AR-3113, September 8, 1999, 55 FLRA No. 134. DETERMINING THE UNIT STATUS OF A VACANT WORK LEADER POSITION WHEN NECESSARY TO THE RESOLUTION OF A GRIEVANCE AT ARBITRATION. FLRA extends an exception to its refusal to pass on the unit status of vacant positions. Where the unit determination of the vacant position is a collateral issue necessary to the resolution of a grievance at arbitration, the Regional Director shall determine the unit status of the vacant position when (1) the parties agree, or (2) the arbitrator "decides that the unit determination is necessary to the resolution of a grievance at arbitration. In such event, the grievance must be placed in abeyance pending a decision on a petition for clarification of the unit." U.S. Department of Veterans Affairs and National Association of Government Employees, AFL-CIO, SEIU, BN-BP-80051, August 31, 1999, 55 FLRA No. 132 UNFAIR LABOR PRACTICES (ULPs) ... NONTRADITIONAL REMEDIES ... ULPs AS PROHIBITED PERSONNEL PRACTICES. FLRA found that a warden committed several ULPs when he, among other things, made anti-union statements at a mandatory meeting of all employees, threatened reprisal if the union's First VP didn't "back off" an employee's case, conducted formal discussions without giving the union a reasonable opportunity to participate, selected an employee not designated by the union to serve as the union's representative on the Food Service Department's roster committee; and relocated the union's office without giving the union an opportunity to bargain on the matter. Because of the egregious nature of the violations, FLRA ordered the employer to call an all-employee meeting at which either the warden or a FLRA representative with the warden present, would read aloud to the group the mea culpa notice. Copies of that notice also had to be distributed to all penitentiary employees. FLRA also directed the parties to show cause why FLRA shouldn't refer this case to the General Counsel (or direct the employer to make such a referral) to determine whether the warden committed prohibited personnel practices. U. S. Penitentiary, Leavenworth, Kansas and American Federation of Government Employees, Local 919, DE-CA-60026, etc., August 10, 1999, 55 FLRA No. 127. PROPOSALS DELAYING IMPLEMENTATION OF A REORGANIZATION ... 7106(b)(2) PROCEDURE ... 7106(b)(3) APPROPRIATE ARRANGEMENT. A proposal requiring the agency to maintain the status quo pending resolution of bargaining over a reorganization is a negotiable procedure under § 7106(b)(2). A proposal requiring the agency to phase in the agency's reorganization through attrition is nonnegotiable because it excessively interferes with the agency's right to determine its organization. "By requiring implementation of the reorganization through attrition, the delay is of an unknown duration. Without any indication of the extent of the temporal impact, the Authority cannot determine that on balance, the delay is reasonable." (Emphasis added.) National Association of Government Employees, Locals R5-136 and R5-150 and Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, SC, 0-NG-2424, 2425, July 31, 1999, 55 FLRA No. 120. INAPPROPRIATE NATIONAL UNIT. In an application for review of a regional director's decision, FLRA agreed with the RD that a proposed consolidation of the civilian technicians of several states would not be appropriate. In doing so, it noted that, under the Technicians Act, general authority over employment is vested in state officials. "This statutory scheme," said FLRA, "is not workable if employees do not have a right to negotiate with the same officials who exercise authority over these conditions of employment." National Guard Bureau and Association of Civilian Technicians and Washington National Guard, et al., WA-RP-70070, July 30, 1999, 55 FLRA No. 115. MSPB PROCEDURES-SANCTIONS ... WITNESS INTIMIDATION. When any party alleges intimidation or attempted intimidation of witnesses, the Board will require the same proof: that the alleged intimidator suggested another not testify, or not testify truthfully, or threatened or otherwise intimated that adverse consequences would befall one giving unfavorable testimony. An administrative judge may impose sanctions only for misconduct occurring during the appeal. Philip R. Bernstein v. Department of the Army, CH-0432-98-0214-I-1, May 24, 1999. CONSIDERATION OF MITIGATING FACTORS. Where the documentation and testimony support that a deciding official considered and rejected lesser penalties, the Board will not substitute its judgment because not every mitigating factor was detailed in the written notice of removal. Warren Lewis v. General Services Administration, DA-0752-97-0548-I-1, May 21, 1999. CHARGES. Charges of unavailability for duty and inability to carry firearms could not be sustained in a case where the charges represented the consequence of a criminal conviction, which was subsequently vacated by the State court. Dolphin Pawn v. Agriculture, SE0752960211-I-1, May 25, 1999. INVOLUNTARY RETIREMENT/RESIGNATION. Agency established that it had a valid reason (administrative disruption) for denying requests to withdraw buyout commitments unless an employee could establish extreme hardship or extraordinary circumstances. Debra DeVingo, David Walker and William Spiro v. General Services Administration, BN0752970139-I-1, BN0752970140-I-1, and BN0752970141-I-1, May 4, 1999. BACK PAY AND LEAVE. Finding that the agency reprised against the employee for making a disclosure protected by the Whistleblower Protection Act, the Board awards back pay to the employee for a period of time when the employee was already receiving workers compensation benefits. The Board also ordered partial restoration of the employee's sick leave. Special Counsel, ex rel. James E. Steen v. Department of Veterans Affairs, CB1214940005-C-1, April 26, 1999. CONSEQUENTIAL DAMAGES. The Board lacks authority to award nonpecuniary damages for mental distress under the consequential damages provisions of the Whistleblower Protection Act (WPA), 5 U.S.C. § 1221(g)(1)(A). Elizabeth R. Kinney v. Department of Agriculture, SE-1221960569-P-1, March 16, 1999. INTERIM RELIEF. Where an agency assigns an employee to different duties during a period of interim relief, but does not explicitly state an undue disruption determination, it satisfies its burden to make such a determination by showing that it had a strong overriding interest or compelling reason to assign the alternative duties. Todd R. Haebe v. Department of Justice, SF-0752-97-0426-I-1, March 9, 1999. INVOLUNTARY RESIGNATION ... INTERIM RELIEF. (1) In response to interim relief order, the agency showed that it had a strong overriding interest or compelling reason for assigning the employee to duties other than those assigned him prior to his separation, i.e., the reassignment of another employee to his position; thus, the agency made an implicit undue disruption determination, in compliance with the interim relief order. (2) Employee who entered into buyout agreement satisfied the agency's standard or extreme hardship or extraordinary circumstances for granting withdrawal request, based on unforeseen medical condition, where employee stated that he was diagnosed with diabetes mellitus after he signed the agreement and feared that the disease would diminish his employment opportunities. Leonard T. Purzycki v. General Services Administration, PH0752970271-I-1, March 9, 1999. VOLUNTARY RETIREMENT/RESIGNATION ... VOLUNTARY SEPARATION INCENTIVE PAYMENT. When an agency denies a request to rescind a resignation or retirement, the agency denial of such request, based on a determination of administrative disruption, will be closely reviewed by the Board. Gloria Ward-Ravenell v. General Services Administration, DC0752970548-I-1, March 9, 1999, and Albert Perrine, Sr. v. General Services Administration, DC075297041-I-1, March 9, 1999. USERRA AS AN AFFIRMATIVE DEFENSE. An appellant may assert the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) as an affirmative defense, as it falls under the third category of affirmative defenses, namely, that "the [agency's] decision was not in accordance with law." 5 U.S.C. § 7701(c)(2)(C). There are two methods of proof an appellant may use in supporting a discrimination claim in violation of USERRA: direct evidence of discriminatory intent--subject to the USERRA standard of review, or circumstantial evidence--subject to Title VII burdens of proof and production. Robert E. Morgan v. United States Postal Service, DE-0752980136-I-1, March 1, 1999. COURT DECISIONS MITIGATION ... PENALTY Janice R. Lachance v. Larry Devall, 178 F.3rd 1246 (Fed. Cir. 1999). Holding The MSPB does not have independent authority to set penalties when it sustains some, but not all, of an agency's charges. Summary The appellant was removed from his position based on three charges, sexual harassment (sustained), unauthorized use of another's property (found to be de minimis), and inattention to duty (not sustained). Although the deciding official testified that the agency considered the sexual harassment charge to be the primary basis for the removal penalty, the administrative judge determined that the maximum reasonable penalty for the sustained charges was a thirty-day suspension. In a final decision, the full Board said that because not all of the charges were sustained, it would independently determine a penalty and found a ninety-day suspension to be reasonable. OPM first requested reconsideration of the decision, and then petitioned the Federal Circuit to review the Board's standard for determining an appropriate penalty. OPM argued that the Board must give due weight to the agency's primary discretion in matters of employee discipline insofar as the Board's function is not to displace management responsibility but to assure that managerial judgement has been exercised within tolerable limits of reasonableness. The MSPB argued that if not all of the charges are sustained, deference would require the Board to speculate about what the agency's penalty determination would have been. Instead of engaging in that hypothetical exercise or remanding the case to the agency for a new determination, the Board said that it should independently (de novo) determine a reasonable penalty. The court agreed with OPM. In looking at the issues in the case, the court noted that when an agency brings several charges, and the more egregious charges are sustained, it is reasonable to presume that the agency itself would have imposed the same penalty on the basis of the sustained charges that it chose on the basis of the combined charges. This presumption is fortified, more-over, when the agency makes this clear before the Board, as in this case, where the deciding official testified that Mr. Devall's prior incidents, counseling, and awareness of the agency's policies on sexual harassment were aggravating factors that motivated his decision to remove Mr. Devall. In such cases, it does not follow that the basis for the agency's penalty choice no longer exists. The Federal Circuit also stated that the Board may not infringe upon an agency's exclusive domain as workforce manager, for to do so would frustrate the framework of the Civil Service Reform Act. Further, the court said that when the Board deems it necessary to mitigate an agency penalty, it cannot disconnect its penalty determination from the agency's managerial will. The court concluded that the Board may not independently determine penalties but may mitigate to the "maximum reasonable penalty" when it finds the agency's original penalty too severe unless the agency has indicated that it desires a lesser penalty be imposed on fewer charges. It remanded the case to the Board for further proceedings consistent with the court's decision. Comments On September 1, 1999, the Board issued its remand decision (Larry Devall v. Department of the Navy, DA-0752-95-0794-M-1, 9/1/99) in which it upheld the agency's removal penalty. We can conclude, therefore, that the Federal Circuit's decision agreeing with OPM's position on this issue is more than symbolic--it should result in the Board giving more weight to agencies' penalty determinations. On a practical note, however, since the Board will continue to mitigate when it finds the agency has not fully supported its penalty, Devall does not relieve the agency of its burden of persuasion. Therefore, it is a good idea for agencies to make the reasons for their penalty determination very clear in the decision notice. In cases where the action is based on more than one charge, and one or more of those charges by itself would warrant removal, it will be easier to defend the penalty determination on appeal if this point has been stated clearly in the decision notice. 55 FLRA No. 134 National Association of Government Employees, Local R4-45 and Defense Commissary Agency, Langley Air Force Base, Virginia, 0-AR-3113, September 8, 1999, 55 FLRA No. 134. Holding FLRA turned down union and agency exceptions to an award in which the arbitrator, although finding that the agency violated the spirit of the collective bargaining agreement (CBA), also found that there was insufficient evidence to support higher ratings for the grievant. FLRA rejected the union's claim that the arbitrator, in finding a contract violation, was required to set aside the grievant's appraisal. "The Arbitrator found that the violation of the parties' agreement did not affect the grievant's ratings . . . . Thus, the Union has not demonstrated that the Arbitrator was legally obligated to provide the remedy that the Union desired." Summary The grievant, a sales store checker, had a performance plan containing eight critical and two noncritical elements, three rating levels (did not meet, met, exceeded) for each element, and five rating levels for an overall summary rating: unacceptable, minimally acceptable, fully acceptable, excellent, and outstanding. Written standards existed only for the "met" level. To qualify for an "excellent" overall rating, the grievant had to receive an "exceeded" rating in more than half the critical elements. For an "outstanding" overall rating, the grievant had to receive an "exceeded" rating on all eight critical elements. Because the grievant was rated as having "exceeded" the standards on only two critical elements, he received a summary rating of "fully successful." He grieved and the matter was referred to arbitration. In his original award, the arbitrator found that the agency had violated the spirit of Article 41 of the CBA by failing to encourage the grievant and other sales store checkers to participate in the development of performance standards. (Article 41 of the CBA provided, among other things, that "the EMPLOYER shall encourage employees to participate in identifying key performance elements and establishing performance standards." Section 4 of Article 41 also required that, "to the extent possible, employee performance evaluations shall be made in a fair and objective manner.") Despite the CBA violation, the arbitrator determined that the grievant was properly rated. The arbitrator rejected, based on insufficient credible evidence, the union's contention that the grievant's performance warranted an "exceeded" rating on a majority of the critical elements. He also rejected the union's claim that the supervisor had to apply objective, rather than subjective, criteria to determine the level of performance. Given that written standards existed only for the "met" level, the arbitrator held that the rating official exercises his or her judgment to determine whether an employee satisfies the "exceeded" level. The union's claim that the standards were unreasonable and unattainable was also rejected because of insufficient evidence to support the claim. (The union apparently relied on the fact that no sales store checker had received an outstanding rating to support its unattainable standards' claim.) In his original award, however, the arbitrator failed to provide a remedy for the contract violation. This was later accomplished in an amended award in which he directed the agency "to comply with the labor agreement and discuss and prepare, with the assistance of the Union and its Sales Store Checker members [sic], Performance Plans to be utilized for rating Sales Store Checkers on an objective basis for the summary ratings of ‘Excellent' and ‘Outstanding.'" Both the union and the agency filed exceptions to the award. The Authority rejected the union's claim that the award violated agency regulations by requiring that performance be perfect in order to exceed the "met" level. The union, said FLRA, misinterpreted the award. FLRA noted that the arbitrator had rejected the union's argument that the grievant's evaluation was based on unreasonable and unattainable standards (because no sales store checker received an outstanding rating), finding instead that there was insufficient evidence to establish that the evaluation was based on unattainable standards. FLRA also held that, in the original award, the arbitrator was not legally required to issue a remedy. The union's reliance on 46 FLRA No. 1 (where FLRA affirmed an award in which the arbitrator ordered a rating struck on a particular element because the agency didn't encourage employee participation in establishing performance standards) was misplaced.
It emphasized that FLRA has consistently ruled that arbitrators have great discretion in fashioning remedies. "The fact that [in 46 FLRA No. 1] an arbitrator ordered the appraisal to be changed in does not mandate such a result in this case, particularly in light of the Arbitrator's specific findings that the grievant did not exceed the rating standard." FLRA held that the agency's exception (claiming that the arbitrator exceeded his authority when he found that the agency violated the "spirit" of the agreement) was untimely because it exceeded the 30-day period for filing exceptions to the original award. "The deficiency alleged in this Agency exception arose from the original award, not from the amended award." FLRA also rejected, because based on a misinterpretation of the award, the agency's other exceed authority exception (where the agency claimed the award required the agency to change its performance appraisal system to require written performance standards of summary ratings for "excellent" and "outstanding.") "Contrary to the Agency's assertion," said FLRA, "as a remedy the Arbitrator did not direct the Agency to change its performance appraisal system to require written performance standards for summary ratings of "excellent" and "outstanding." Also rejected was the agency's claim that the award required the establishment of written performance standards for all levels of performance, which would be in violation of the agency's performance appraisal regulations. Where both a CBA and an agency regulation apply, the CBA requirements govern. Even assuming that an agency regulation is relevant to the instant dispute, the collective bargaining agreement governs the disposition of this matter. In any event, no regulatory provision is cited by the Agency that prohibited the Arbitrator from . . . ordering the Agency to involve employees in developing performance plans to be used on an objective basis for overall summary ratings of "excellent" and "outstanding." FLRA also rejected the agency's claim that the award added a requirement to the CBA by requiring the establishment of written performance standards. FLRA said that the agency misconceived the award. The CBA calls for the Agency to encourage the participation of employees in the development of performance plans. The remedy does not require the Agency to negotiate over the establishment of performance standards, so requiring discussion to remedy a violation of Article 41 does not "add" to the collective bargaining agreement. Finally, FLRA rejected the agency's claim that the remedy violated management's rights. FLRA noted that it applies a two-prong test when it is alleged that an award affects a § 7106(a) right. FLRA first asks whether the award provides a remedy for a violation of either a § 7106(a)(2) "applicable law" or a § 7106(b) contract provision. If so, it then asks whether the "remedy reflects a reconstruction of what management would have done if management had not violated the law or contractual provision at issue." Here, FLRA found that the agency's claim didn't satisfy the first prong. The award didn't require the agency to negotiate over the content of performance standards or require new standards. "The remedy only requires the Agency to ‘comply with the labor agreement' which calls for the encouragement of the participation of employees in the development of performance plans." Comments This case illustrates that one doesn't necessarily "lose" when one's exceptions are rejected. This is particularly true where the parties are in disagreement over the meaning and requirements of an arbitrator's award. In telling the parties what the arbitrator's award did not do, the Authority helps to reduce disagreements over what the award at issue requires of the parties. 55 FLRA No. 132 U.S. Department of Veterans Affairs and National Association of Government Employees, AFL-CIO, SEIU, BN-BP-80051, August 31, 1999, 55 FLRA No. 132 Holding FLRA extends an exception to its refusal to pass on the unit status of vacant positions. Where the unit determination of the vacant position is a collateral issue necessary to the resolution of a grievance at arbitration, the Regional Director is to determine the unit status of the vacant position when (1) the parties agree, or (2) the arbitrator "decides that the unit determination is necessary to the resolution of a grievance at arbitration. In such event, the grievance must be placed in abeyance pending a decision on a petition for clarification of the unit." FLRA's failure to make such a determination under those circumstances would "frustrate the Statute's policy favoring the resolution of employee grievances through arbitration." Summary An employee was suspended for, among other things, two incidents of AWOL that had been recommended to the employee's supervisor by the Housekeeping Aid Work Leader. The union grieved, claiming that the activity failed to "ensure a reasonable procedure for the request and approval of leave, through a supervisor as required by the contract." (Emphasis added.) The activity and union were in disagreement over the unit status of the work leader: the union claimed that the position was supervisory (and thus bound by the contract's procedure for requesting and approving leave). The activity, on the other hand, took the position that the position was in the unit. FLRA was asked to determine the unit status of the work leader. Meanwhile, the work leader was promoted to a supervisory position and the activity decided not to fill the now-vacant work leader position. FLRA's Regional Director (RD), noting that FLRA does not clarify vacant positions, issued an order directing the union to indicate why its clarification petition shouldn't be dismissed. In its response the union cited 34 FLRA No. 6, where FLRA carved out an exception to its rule of not passing on the unit status of vacant positions. The RD interpreted 34 FLRA No. 6 to apply only where there was a threshold question of arbitrability. The union filed an application of review, which was granted by FLRA, because the Regional Director's decision raised an issue for which there is an absence of precedent. The issue is "whether an RD may resolve a representation issue concerning a vacant position where the unit determination is a collateral issue necessary to the resolution of a grievance at arbitration." Although FLRA found that the RD was correct in deciding that the exception provided for by 34 FLRA No. 6 extends only to cases involving arbitrability, it decided to broaden the exception to circumstances "when [the] unit determination [of a vacant position] is a collateral issue necessary to the resolution of a grievance at arbitration." Such an extension, said FLRA, "is warranted in light of the recognized ‘centrality of arbitration under the Statute.'" The approach that FLRA will follow in this and future cases is as follows: An RD shall resolve a petition for unit clarification of a vacant position provided that both parties agree, or the arbitrator decides, that the unit determination is necessary to the resolution of the grievance at arbitration. In the event the parties disagree that the unit determination is necessary to the resolution of the arbitration, the RD would nevertheless resolve a unit clarification petition if the arbitrator determines that the resolution of the unit question is necessary. Where a determination has been made that a unit clarification is needed, the parties must place the grievance in abeyance pending a decision on the unit clarification petition. The union's petition was dismissed without prejudice to its right to refile if the parties agree, or an arbitrator decides, that the grievance can't be resolved without determining the unit status of the vacant work leader position. 55 FLRA No. 127 U. S. Penitentiary, Leavenworth, Kansas and American Federation of Government Employees, Local 919, DE-CA-60026, etc., August 10, 1999, 55 FLRA No. 127. Holdings FLRA found that a prison warden committed several ULPs when, among other things, he made anti-union statements at a mandatory meeting of all employees. Because of the egregious nature of the violations, FLRA ordered the employer to call an all-employee meeting at which either the warden or a FLRA representative with the warden present, would read aloud to the group the mea culpa notice. Copies of that notice also had to be distributed to all penitentiary employees. FLRA also directed the parties to show cause why FLRA shouldn't refer this case to the General Counsel (or direct the employer to make such a referral), to determine whether the warden committed prohibited personnel practices. Summary Over a seven-month period in 1995 the then-warden at the Levenworth Penitentiary committed a series of ULPs. They included, e.g., making anti-union statements at a mandatory meeting of all employees, threatening reprisal if the union's First VP didn't "back off" an employee's case, removing an employee from a committee assignment because of the employee's protected activities, conducting formal discussions without giving the union a reasonable opportunity to participate, selecting an employee not designated by the union to serve as the union's representative on the Food Service Department's roster committee, and relocating the union's office without giving the union an opportunity to bargain on the matter. Although the ALJ affirmed most of the ULP complaints, he declined the General Counsel's request for a nontraditional remedy which would, among other things, require the warden to read, or at least be present at an all-employee meeting at which a FLRA representative would read, the mea culpa notice. "I am not persuaded," he said, "that the violations I have found were so flagrant or pervasive as to render inadequate the more typical Authority remedies . . . . The unlawful conduct seen here, while disparaging of Union officials and bargaining rights, appears to be more the product of anger, and of the zealous protection of perceived management prerogatives, than of a calculated effort to "break" the Union." Such a remedy, he continued, "is subject to the objection of unnecessary humiliation." He also noted that the warden had since been reassigned from the Leavenworth to the Lewisburg Penitentiary. The ALJ also rejected the General Counsel's request that a copy of the order and notice be given to all of the activity's supervisors, management officials, and bargaining unit employees. "Here, there is no particular reason to doubt that the usual postings, in a facility with what appears to be not much in excess of 300 employees, with an established local union that publishes its own newspaper, will insure that virtually every employee, supervisor, and management official is made aware of the contents of the notice." The Authority, zeroing in on the anti-union statements the warden made at a mandatory meeting of all employees, disagreed with the ALJ and ordered that the employer (the Leavenworth Penitentiary) call an all-employee meeting at which either its former warden or a FLRA representative (with the former warden present), would read aloud to the group the mea culpa notice. "In view of the fact that the warden made egregious, anti-Union statements at a mandatory meeting of all employees, we find that it is reasonably necessary to require those statements to be retracted via a reading aloud of the notice, at another meeting of all employees." (FLRA did not, however, direct that a similar meeting be ordered at the Lewisburg Penitentiary, to which the warden had since been reassigned, because there was no evidence to support the OGC's claim that the transfer had a "chilling effect" on employees at that facility.) It also directed that copies of the mea culpa notice (but not the order) be distributed to all employees. Because an unusually large number of employees directly witnessed these egregious violations, we find that additional measures should be taken to ensure that the remedial information reaches all of the employees and to demonstrate to employees that their rights will be protected. FLRA rejected, on the other hand, the General Counsel's request that the employer be required to put a "nondisciplinary" entry into the warden's personnel file, that would indicate that he was found guilty of violating the FSLMRS. As the unfair labor charges were filed against the Respondent as an agency--i.e., the warden was not named as a party to these cases--the warden was not represented at the hearing, or placed on notice that future disciplinary actions against him might be affected by the Authority's decision. . . . Given this, granting the remedy requested by the GC raises substantial due process considerations. It also rejected the GC's request that the warden be named in the mea culpa notice. "[T]he naming of particular individuals in the notice is not reasonably necessary in order to recreate the conditions and relationships with which the unfair labor practices interfered, or to effectuate the policies of the Statute." However, in a split decision, the Authority, noting that it is a prohibited personnel practice within the meaning of 5 USC § 2302(b)(9) to "threaten to take . . . any personnel action against any employee or applicant because of (A) the exercise of any appeal, complaint, or grievance right granted by any law, rule, or regulation," and concluding that the warden's threat to remove the second VP for representing employees in the agency's internal grievance procedure "may have constituted a prohibited personnel practice," directed that the parties "show cause why the Authority should not refer this matter to the Office of Special Counsel, or direct the Respondent to make such a referral, requesting an investigation into whether the warden committed prohibited personnel practice[s]." In dissenting with this particular remedy, Member Cabaniss, noting that the OGC did not seek this remedy, said the following: I believe the contemplated referral to the OSC would be outside our authority under section 7105 of the Statute, whether we make its ourselves or whether we order the Agency to make it. Moreover, I believe the other nontraditional remedies we are imposing are adequate . . . . I believe it is inappropriate . . . for us to attempt to pursue the warden in another forum, and under a statute other than the one we are charged with enforcing. The majority, in footnote 18, agreed that FLRA was without authority "to adjudicate, in the context of a ULP proceeding, whether a prohibited personnel practice has occurred under 5 U.S.C. § 2302(b)(9). That is why we direct the parties to address the question of referring this matter to the Office of Special Counsel . . . ." Comments It is puzzling why the majority should want to refer this case to the Office of Special Counsel, particularly since FLRA's General Counsel never requested such a remedy, and the referral was not predicated on any finding that the rest of FLRA's ordered remedy was inadequate. Will the General Council, faced with due process problems in connection with the disciplinary remedies he has sought from time to time, now routinely seek a comparable referral remedy for all ULPs involving threats to take a personnel action because of engaging in protected activity? (It was not known, at the time this case was written up for Significant Cases, whether the Department of Justice would seek court review because, in part, of the split between the Authority and the ALJ, and between Member Cabaniss and the majority, concerning the nontraditional remedies ordered in this case.) 55 FLRA No. 120 National Association of Government Employees, Locals R5-136 and R5-150 and Department of Veterans Affairs, Ralph H. Johnson Medical Center, Charleston, SC, 0-NG-2424, 2425, July 31, 1999, 55 FLRA No. 120. Holding A proposal requiring the agency to maintain the status quo pending resolution of bargaining over a reorganization is a negotiable procedure under § 7106(b)(2). A proposal requiring the agency to phase in the agency's reorganization through attrition is nonnegotiable because it excessively interferes with the agency's right to determine its organization. "By requiring implementation of the reorganization through attrition, the delay is of an unknown duration. Without any indication of the extent of the temporal impact, the Authority cannot determine that on balance, the delay is reasonable." (Emphasis added.) Summary When the agency notified the union that, pursuant to a reorganization, certain employees were being moved from one organizational subdivision to another, the union proposed that the reorganization be phased in through attrition. When the agency contended that such a proposal was nonnegotiable, the union advanced a proposal requiring the agency to maintain the status quo pending resolution "of all issues concerning reorganization." When the agency declared that this proposal also was nonnegotiable, the union separately appealed both agency determinations to the Authority, which consolidated the cases for decision. The union claimed that the proposal requiring maintenance of the status quo pending completion of bargaining (hereafter referred to as the "status quo proposal" ) was a negotiable procedure under § 7106(b)(2), and the proposal requiring the reorganization to be phased in through attrition (hereafter referred to the "attrition phase-in proposal" ) was both a § 7106(b)(2) procedure and/or a § 7106(b)(3) appropriate arrangement. The Authority agreed with the union's contention regarding the proposal requiring a maintenance of the status quo pending completion of bargaining, but disagreed with its contentions regarding the proposal requiring that the reorganization be phased in via attrition. Taking up the status quo proposal first, FLRA said the following about FLRA precedent bearing on this proposal: Proposals that preclude an agency from exercising a management right unless or until other events occur are generally not within the duty to bargain. [See 53 FLRA No. 403, 417-18 (53 FLRA No. 47) and 48 FLRA 168, 174 (48 FLRA No. 15).] Exceptions to this general approach include proposals to delay management action pending completion of bargaining or applicable appellate processes. Such proposals are viewed to be within the duty to bargain as procedures within the meaning of section 7106(b)(2). [See 48 FLRA 232, 241-43 (48 FLRA No. 19).] However, the exception does not apply when implementation of the management action to be delayed is necessary for the functioning of the agency. See VAMC, Newington, 53 FLRA at 420 (Proposal 11) (proposal to delay the detail of a nuclear medicine technician pending completion of bargaining was not within the duty to bargain because the agency had established that the detail was essential to its patient care function. [Bold added.] Applying the above precedent, which neither party asked FLRA to reexamine, FLRA found that the status quo proposal "comes within the exception for proposed delays pending completion of bargaining," and found that the agency failed to demonstrate that the reorganization was "essential to fulfilling its mission of patient care." FLRA accordingly found the status quo proposal to be a mandatorily negotiable § 7106(b)(2) procedure. Turning to the attrition phase-in proposal, the Authority rejected the union's claim that the proposal was a § 7106(b)(2) procedure. The proposal delays the Agency from fully implementing its reorganization until, through attrition, existing clerks no longer encumber any ward and lead medical clerk positions. Conditioning full implementation on attrition will delay the reorganization for an indeterminate period of time. Accordingly, as the proposal does not come within the exception for proposed delays pending completion of bargaining [as did the union's status quo proposal], we conclude that the proposal is not within the duty to bargain as a procedure under section 7106(b)(2) . . . FLRA also rejected the union's claim that the proposal was a § 7106(b)(3) appropriate arrangement for adversely affected employees. Even assuming that the proposal was an "arrangement," FLRA concluded that it was not an "appropriate" arrangement. By requiring implementation of the reorganization through attrition, the delay is of an unknown duration. Without any indication of the extent of the temporal impact, the Authority cannot determine that on balance, the delay is reasonable. . . . The indeterminate nature of the temporal impact of the Union's proposal raises the possibility of delaying the reorganization for many years. In weighing the burden, restrictions, and negative impact imposed by the proposal on management's right to determine its organization against the benefits afforded employees by the proposal, we find that the proposal excessively interferes with management's right to determine its organization . . . . Comments An interesting feature of this case is that the question of the reasonableness of the delay is raised under the appropriate arrangement analysis, not the procedural analysis. But perhaps FLRA would say that delays associated with completion of bargaining and appellate processes are presumptively reasonable. National Guard Bureau and Association of Civilian Technicians and Washington National Guard, et al., WA-RP-70070, July 30, 1999, 55 FLRA No. 115. Holding In an application for review of a regional director's decision, FLRA agreed with the RD that a proposed consolidation of the civilian technicians of several states would not be appropriate. In doing so, it noted that, under the Technicians Act, general authority over employment is vested in state officials. "This statutory scheme," said FLRA, "is not workable if employees do not have a right to negotiate with the same officials who exercise authority over these conditions of employment." Summary In 13 FLRA No. 40, both NAGE and NFFE wanted to consolidate their units of civilian technicians. Recognition for such a consolidated unit would be granted by the National Guard Bureau (NGB). They were unsuccessful because, in part, NAGE's petition covered only 22% of National Guard civilian technicians in 22 states, and NFFE's petition covered less than 9% of such employees located in 10 states. But more crucial was the fact that the NGB had no line responsibility for employees in each state and "state control over personnel, labor relations, and working conditions is a statutory and not a matter of delegated authority from the NGB which the latter could rescind in the face of consolidated units." Nor would the proposed units promote effective dealings because they are not "adequately reflective of the National Guard's organizational structure." Sixteen years later another attempt was made to consolidate units of National Guard civilian technicians, this time by the Association of Civilian Technicians, who claimed that it represented 53 percent of eligible National Guard technicians nationwide. The Regional Director, although acknowledging that the units in the proposed consolidation were more evenly distributed than was the case in 13 FLRA No. 40, nonetheless concluded that the employees did not share a community of interest, given that the adjutants general of the states involved retained authority over personnel and labor relations matters. He also found that the proposed consolidated did not satisfy the "effective dealings" and "efficiency of agency operations" criteria of unit appropriateness. In its application for review, the union contended that labor relations is solely a Federal function with the states having no statutory role. It also claimed that the NGB's agency-wide regulations supported consolidation. FLRA disagreed. Although federal officials [i.e., the National Guard Bureau] promulgate regulations governing technician working conditions, this authority is not "unfettered." They retain no authority over the day-to-day employment of the technicians. That authority is designated by statute to the states. The FLRA agreed with the RD that there was a lack of community of interest. The separate authority exercised by the states over their respective military missions indicates a lack of integration of mission and function across state lines that outweighs any similarity in the actual duties that the technicians perform . . . . Consistent with National Guard, 13 FLRA at 235, the RD found that the states set labor relations and personnel policies through their respective adjutants general. . . . The authority of state officials is greater than mere delegated, operational authority over day-to-day decision-making. . . . Limitations on consolidation necessitated by the Technicians Act may have the effect of limiting the bargaining rights of these employees. However, nothing in the Statute guarantees that every group of employees will be able to avail themselves of all aspects of the Statute. [Emphasis added.] Nor did the proposed consolidation promote effective dealings and the efficiency of agency operations.
The application for review was accordingly denied. MSPB DECISIONS MSPB PROCEDURES-SANCTIONS ... WITNESS INTIMIDATION Philip R. Bernstein v. Department of the Army, CH-0432-98-0214-I-1, May 24, 1999 Holdings 1. When any party alleges intimidation or attempted intimidation of witnesses, the Board will require the same proof: that the alleged intimidator suggested another not testify, or not testify truthfully, or threatened or otherwise intimated that adverse consequences would befall one giving unfavorable testimony. 2. An administrative judge may impose sanctions only for misconduct occurring during the appeal. Summary In his appeal of his demotion, the appellant claimed that written statements, affidavits and deposition testimony taken by the agency in its investigation of his performance were tainted by the agency representative's use of intimidation and coercion. He moved for summary judgement on this issue, and the AJ granted his motion, taking a number of adverse inferences against the agency as a sanction for the agency representative's "coercive and intimidating communication with the witnesses." Based on the adverse inferences, he found the agency did not make its case that the appellant's performance was unacceptable. Upon review, the Board found the AJ's imposition of sanctions was an abuse of his discretion. The Board noted that: In cases where an agency has imposed an adverse action based on the charge of witness intimidation, the Board has not sustained that charge in the absence of evidence showing that the appellant suggested that an employee either not testify or not testify truthfully or that the appellant directed any personal threats to an employee or intimated that adverse consequences would befall a particular employee should testimony be unfavorable. It then looked at the allegedly intimidating language in the representative's letter to the witnesses, and found "that the AJ has read too much into the . . . letter." It remanded the case for further adjudication on both the merits of the performance action and the appellant's affirmative defenses. The Board provided extensive instruction to the AJ about how he was to determine whether any coercion had occurred and if so, what measures would be warranted. In this regard, it reminded the AJ that under Board regulations, "an AJ's sanctioning authority is limited to misconduct occurring during the appeal." The misconduct alleged in this case took place during the agency's investigation, and if the AJ finds it did occur, he may not impose sanctions, but must analyze whether it harmed the appellant's substantive rights. Comment If the AJ finds anew on remand that the investigation was so flawed by intimidation as to taint the testimony presented, he will presumably reach the same result, but based on a harmful error determination rather than on the imposition of sanctions. This holding, therefore, while it helps parties maintain proper procedure, may have little impact on outcomes. More useful is the Board's refreshing determination that appellants must meet the same burden of proof to which agencies have been held when they charge witness intimidation. The decision contains helpful cites to those cases. CONSIDERATION OF MITIGATING FACTORS Warren Lewis v. General Services Administration, DA-0752-97-0548-I-1, May 21, 1999. Holding Where the documentation and testimony support that a deciding official considered and rejected lesser penalties, the Board will not substitute its judgment because not every mitigating factor was detailed in the written notice of removal. Summary The employee was removed based on two charges: (1) misuse of a government telephone by making non-business calls, and (2) asking a third party to provide incorrect information about the nature of the calls. In her initial decision, the administrative judge mitigated the removal to a 60-day suspension based on her conclusion that the agency's deciding official had not considered any specific relevant mitigating factors and had not given substantive consideration to a lesser penalty. In this split decision, with Chairman Erdreich dissenting (the Chairman argues that the agency did not meet its burden to present a preponderance of evidence that the employee engaged in the charged misconduct), the Board found that the agency's deciding official had considered a lesser penalty than removal. In concluding that there were no mitigating factors sufficient to outweigh the proposed action and justify a lesser penalty, the Board also points out that there is no requirement in 5 U.S.C. § 7513(b), in 5 C.F.R. § 752.404(f), or in Douglas v. DVA that written agency decisions or proposals contain specific, detailed information showing that the agency considered all of the mitigating factors in a given case. In this case, the notice of proposed removal, the decision letter, and the deciding official's affidavits support a conclusion that the agency did give full and careful consideration to all appropriate factors, including mitigating factors. The Board should mitigate a penalty only where the penalty imposed by the agency is unreasonable and that is not the case here. The aggravating factors in this case (the serious nature of the appellant's attempt to persuade a third party to provide incorrect information regarding his misuse of the government telephone, his role as an agency representative, and the adverse impact his breach of trust had on the agency's ability to efficiently meet its mission) outweigh the mitigating factors. The Board has long recognized that removal for engaging in dishonest activity promotes the efficiency of the service since such behavior raises serious doubts regarding the employee's reliability, trustworthiness, and continued fitness for employment. See Kirkpatrick v. U.S. Postal Service, 74 M.S.P.R. 583, 591 (1997). CHARGES Dolphin Pawn v. Agriculture, SE0752960211-I-1, May 25, 1999. Holding Charges of unavailability for duty and inability to carry firearms could not be sustained in a case where the charges represented the consequence of a criminal conviction, which was subsequently vacated by the State court. Summary The agency removed the appellant, a permanent, seasonal Biological Science Aid, based on the following charges: (1) unavailability for duty; (2) inability to carry firearms (a requirement of his position); and (3) failure to follow regulations. The charges were a result of the appellant's arrest for firearms violations while using his Government-owned vehicle and his subsequent incarceration and probation from carrying a firearm. At a prehearing conference, the agency withdrew the third charge. After the hearing, the conviction which had caused his unavailability and inability to carry a gun was reversed. The Administrative Judge entered the order vacating the conviction into the record, but found the two remaining charges sustained and affirmed the removal. The appellant argued, among other things, that his removal should not have been sustained because his conviction had been vacated. Upon review, the Board found that the charges were "inextricably intertwined with his criminal conviction, which has now been vacated." The Board, therefore, reversed the removal action, finding that the agency's charges were not based upon the underlying conduct, but on the consequences of the conviction. Were it not for the conviction, the Board reasoned, the agency would not have had any basis upon which to charge the appellant with unavailability for duty and inability to carry firearms. The Board found this case analogous to other cases in which an employee has been removed for physical inability to perform and fully recovers during the appeal process. In two such cases, Morgan v. U.S. Postal Service, 48 M.S.P.R. 607 (1991), and Street v. Army, 23 M.S.P.R. 335 (1984), the Board held that removal did not promote the efficiency of the service if the underlying reasons no longer existed when the Board exercised its de novo review authority in the appeal process, regardless of whether the agency's action was proper when taken. Pawn v. Agriculture, SE0752960211-I-1, May 25, 1999. Comment It is interesting to note that in Pawn, there was a dissenting opinion from Vice Chair Slavet, in which she disagreed with the Board's finding that the agency's charges were based on the appellant's conviction. She argued that the charges were carefully tied into the essential duties and responsibilities of the appellant's position. However, in light of the majority of the Board's holding in Pawn, agencies should be cautious when they take action against an employee whose conviction has been overturned or vacated. Establishing nexus between the charges and the essential duties of the position may not be sufficient to sustain the action. BACK PAY AND LEAVE Special Counsel, ex rel. James E. Steen v. Department of Veterans Affairs, CB1214940005-C-1, April 26, 1999. Holding Finding that the agency reprised against the employee for making a disclosure protected by the Whistleblower Protection Act, the Board awards back pay to the employee for a period of time when the employee was already receiving workers compensation benefits. The Board also ordered partial restoration of the employee's sick leave. Summary The agency violated 5 U.S.C. § 2302(b)(8) by engaging in a pattern of retaliation against the employee for making a protected disclosure. The retaliation included the employee's proposed reassignment to Los Angeles, his actual reassignment to New York, and the agency's failure to reassign him to Houston as he requested. As a result of this retaliation the employee suffered from severe stress and was unable to perform his duties, and subsequently applied for and received Office of Workers' Compensation Programs (OWCP) benefits. The Board, therefore, ordered the agency to discipline the employee's supervisor, cancel the employee's reassignment to New York and his proposed removal for disability, and further ordered the agency to pay the employee the appropriate amount of back pay under the Office of Personnel Management (OPM)'s regulations. The agency, however, determined that the employee was not entitled to back pay because he was not ready, willing and able to perform his duties. And, citing 5 U.S.C. § 8116(a), the agency stated that, because the employee had been receiving OWCP benefits he was precluded from receiving back pay for that period. The Office of Special Counsel (OSC) filed a Petition for Enforcement (PFE) on behalf of the employee arguing that the employee's reassignment resulted in a reduction of his pay and benefits; and that the case constituted an exception to the rule that employees who were unable to perform their duties are not entitled to back pay because the employee's ability to perform and his removal were related to an unwarranted personnel action. OSC also argued that, because the agency's prohibited personnel practices caused the employee to be too ill to perform his duties, he was also entitled to restoration of the leave he took shortly after he learned of his reassignment. In his initial decision on OSC's PFE, the Board's Chief Administrative Law Judge (CALJ) found that the employee was not entitled to back pay and declined to order restoration of the leave the employee took because the Board did not expressly order that relief, and lacked authority to order it. On review of the CALJ's decision, the Board agreed with the OSC's arguments and ordered the corrective action requested. CONSEQUENTIAL DAMAGES Elizabeth R. Kinney v. Department of Agriculture, SE-1221960569-P-1, March 16, 1999. Holding The Board lacks authority to award nonpecuniary damages for mental distress under the consequential damages provisions of the Whistleblower Protection Act (WPA), 5 U.S.C. § 1221(g)(1)(A). Summary The appellant won her appeal in which she claimed that she had been coerced into seeking a geographic reassignment because of acts taken in reprisal for whistleblowing activities. Following the initial decision, she moved for consequential damages, based in significant part on emotional distress. The administrative judge held that the Board lacks the authority to award monetary damages for nonpecuniary harm such as mental distress under the consequential damages provision of the WPA. Based on the appellant's motion, the administrative judge certified his ruling for interlocutory appeal. In reviewing this case, the Board reversed its position in an earlier decision, Hasler v. Department of Air Force, 79 M.S.P.R. 415 (1998), and acknowledged and adopted the rationale of the Vice Chair in her dissent in that decision. In her dissent in Hasler, the Vice Chair argued that such damages could not be awarded under 5 U.S.C. § 1221(g)(1)(A)(ii) which authorizes the Board, in cases where it orders corrective action for actions taken in reprisal for whistleblowing, to award "back pay and related benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential changes." In the Kinney case, the Board found that the employee was coerced in reprisal for whistleblowing, and therefore was eligible to state a claim for consequential damages. However, the real question addressed by the Board, is whether the statute authorizes the Board to award monetary damages for nonpecuniary harm. The appellant's claim for damages relies on the concluding phrase of the latter section of 1221(g)(1)(A), "and any other reasonable and foreseeable consequential [damages]." This general language follows a list of specific authorized forms of relief and the rule of ejusdem generis (of the same kind) requires that a general statutory term be understood in light of the specific terms that surround it. The rule mandates that a catchall phrase such as that relied on by the appellant be read as applying only to categories similar to those specifically enumerated. The Board therefore reasoned that even the general language in the section can only be read to authorize reimbursement for other resulting monetary losses, not to extend the award of consequential damages to include nonpecuniary injuries such as emotional or mental distress. The strict interpretation of statutory language required by the principle of ejusdem generis does not apply where there is a clear demonstration of contrary intent, either elsewhere in the statute or in the legislative history. There are two brief references in the legislative history of section 1221(g) and both suggest that the purpose of the statute is to make a prevailing appellant financially whole, not to provide compensation for nonpecuniary losses. The Board goes on to further illustrate its finding by comparing the rigorous debate surrounding the passage of the Civil Rights Act of 1991 and the cost of excessive damage awards, with the absence of a similar discussion by Congressional committee members, and the lack of a ceiling for damages in the passage of the 1994 legislation that established Section 1221(g)(1)(A). Comments This decision is a welcome change to the precedent set by the Board in Hasler. By accepting the rationale used by the Vice Chair in her Hasler dissent, the full Board seems to have established a precedent consistent with the legislative intent of Section 1221(g)(1)(A). INVOLUNTARY RETIREMENT ... RESIGNATION Debra DeVingo, David Walker and William Spiro v. General Services Administration, BN0752970139-I-1, BN0752970140-I-1, and BN0752970141-I-1, May 4, 1999. Holdings Agency established that it had a valid reason (administrative disruption) for denying requests to withdraw buyout commitments unless an employee could establish extreme hardship or extraordinary circumstances. Summary The Board examined an agency's right to deny an employee's request to withdraw a voluntary retirement/resignation agreed to in a Separation Agreement authorized under the Federal Workforce Restructuring Act of 1994. Under the Act, agencies could provide a voluntary separation incentive payment of up to $25,000 if employees voluntarily separated from service. At the General Services Administration these agreements were reached with employees in 1994 and 1995, however employees had the option of separating up to two years after the agreement. Employees were informed that they would be held to their buyout commitments unless they showed "an extreme hardship or extraordinary circumstances arising after" they signed the Separation Agreement and that an example of such extraordinary circumstances would be the unexpected death of a spouse. Appellants in the cases listed below entered into the Separation Agreements and then, prior to the effective date of their scheduled separations, asked to withdraw their voluntary retirement/ resignation. The agency denied the requests and the appeals followed. In July 1994, appellants DeVingo and Spiro signed the Separation Agreements, electing to retire with buyouts on December 31, 1994. In March 1995, appellant Walker signed the Separation Agreement electing to retire with a buyout on December 31 1996. The agency approved the agreements and extended their retirement dates to March 31, 1997. In January and February 1997, all three appellants requested to withdraw their retirements. After the agency denied their requests, they retired with buyouts on March 31, 1997. On appeal to the Board's Regional office, the administrative judge consolidated these appeals and issued separate initial decisions canceling the appellants' retirements. The administrative judge found in each decision that the appellants failed to prove that their commitments to retire were based on coercion or misrepresentation by the agency; the agency failed to prove that it had a valid reason, based on administrative disruption, for denying the appellants' withdrawal requests; the appellants failed to prove that they satisfied the agency's hardship standard; and the appellants failed to prove their claims of age discrimination. The agency petitioned the full Board for review of each initial decision arguing that the Separation Agreements were enforceable contracts which, by themselves, constituted valid reasons for denying the appellant's withdrawal requests and that the agency also established a valid reason, based on administrative disruption, for denying the withdrawal requests. The appellants then filed a joint response in opposition to the agency's petitions and also cross petitioned for review, challenging the administrative judge's denial of their discrimination claims. In reviewing the case, the Board noted that, appellant DeVingo, in requesting to withdraw her buyout commitment, stated that at the time she signed the Separation Agreement she had been undergoing a long recovery from delivering her first child. She requested a part-time schedule and was told that such a schedule was possible for only one or two months at the most; but that subsequently her supervisor returned from vacation and granted her request for a flexible work schedule, and that she recovered from post-partum fatigue. The Board agreed with the administrative judge's decision that these circumstances did not establish that the appellant's decision was involuntary and therefore, she did not satisfy the agency's stringent hardship standard. Accordingly, the Board found that the agency did not abuse its discretion in deciding that the appellant failed to satisfy the standard of extreme hardship or extraordinary circumstances and that the agency properly denied her withdrawal request. In requesting to withdraw his buyout commitment, appellant Walker stating that at the time he signed the Separation Agreement he was working for an agency which was allegedly being phased out but the agency subsequently came under new leadership in Washington, the New England Region was established, and he later found himself in a GS-14 position, in a bold and dynamic agency, which offered new and greater challenges. He conceded that his reasons for requesting to withdraw his buyout commitment were not "based on negatives, like personal or financial hardship." Appellant Spiro claimed that after he signed the Separation Agreement, the agency twice asked him to extend his retirement date, and he agreed. He stated that he had rendered valuable service to the agency over the years and continues to be a valuable employee. He contended that, just as he accommodated the agency's request to extend his retirement date, the agency should accommodate his request to withdraw his buyout commitment. The Board agreed with the administrative judges's findings that the reasons cited by appellants Walker and Spiro did not satisfy the agency's hardship standard, the agency did not abuse its discretion in deciding that the appellants failed to satisfy the standard of extreme hardship or extraordinary circumstances and that the agency properly denied their withdrawal request. Accordingly, the Board concluded that: (1) the agency established that it had a valid reason based on administrative disruption for denying requests to withdraw buyout commitments unless an employee could establish extreme hardship or extraordinary circumstances; (2) retirees did not satisfy the agency's standard of extreme hardship or extraordinary circumstances for withdrawal of buyout commitments; and (3) since jurisdiction was lacking over the appeal, the Board was without authority to consider the appellants' allegations of prohibited discrimination. INTERIM RELIEF Todd R. Haebe v. Department of Justice, SF-0752-97-0426-I-1, March 9, 1999. Holding Where an agency assigns an employee to different duties during a period of interim relief, but does not explicitly state an undue disruption determination, it satisfies its burden to make such a determination by showing that it had a strong overriding interest or compelling reason to assign the alternative duties. Summary The agency removed the criminal investigator for two reasons, including making false statements. The administrative judge did not sustain either charge, and reversed the action, ordering the agency to provide interim relief if it filed a petition for review. When the agency filed its petition, the appellant argued it should be dismissed for failure to comply with the interim relief order. Although the agency had placed the appellant on an interim appointment with the same title, series, grade, and benefits, his duties were substantially different on the interim appointment than they had been before, in that he was not allowed to engage in law enforcement or investigative duties that might require him to testify or otherwise participate in a criminal proceeding. The interim relief notice to the appellant had not said anything about a determination of undue disruption. The Board acknowledged that it had previously stated, in Heath v. Department of the Navy, 60 M. S. P. R. 183 (1993) that the "only action not associated with a determination of undue disruption is returning the employee to his or her former position and duties . . . ." (Emphasis supplied.) However, the majority was troubled by the fact this case law "could be interpreted as requiring an agency to meet a higher standard when complying with an interim relief order than when complying with a final relief reinstatement order." They found this result would be contrary to the purpose Congress intended when it created the interim relief provision. The majority noted that agencies have been found in compliance with the Board's final orders when they established the strong overriding interest or compelling reason that supported the return of an appellant to different duties than those previously performed. Applying the same standard to this case, the majority found the agency had established its overriding interest and compelling reason for assigning different duties, and therefore implicitly met its burden to make an undue disruption determination. They therefore accepted the petition, reinstated both charges, and remanded for further evidence on the reasonableness of the penalty. Comment Vice Chair Slavet's dissent argued that the Board could have found the agency had made an implicit determination of undue disruption without adopting a new test. In fact, she said, the majority's determination that the agency must justify its action seemed to be in conflict with the Federal Circuit's 1994 decision in King v. Jerome, 42 F.3d 137, in which the Office of Personnel Management argued, and the court agreed, that the Board has no authority to review an agency's undue disruption determination. Another reading, however, is that the Board was on shaky ground accepting the petition in the absence of an explicit undue disruption determination, and needed to devise a test that would allow it plausible grounds to do so. This difficulty arises from the Federal Circuit's earlier decision in DeLaughter v. U. S. Postal Service, 3 F.3d 1522 (Fed. Cir. 1993). In that case the court overruled the Board's determination that the agency was not required to make any specific determination of undue disruption in order to place the appellant on administrative leave, rather than returning him to duty in his position. Whatever the necessity and motivation behind the decision may be, the facts of the case, the Board's subsequent regulations, and the applications of Haebe suggest it applies only in cases where the agency places the appellant in different duties during the interim appointment, and does not make an explicit undue disruption statement at the time. Agencies therefore have considerable latitude to avoid the situation altogether. Personnel advisors to management may want to ask whether the appellant will be performing the same duties on the interim appointment that were performed previously so that the undue disruption language may be invoked where it is warranted. INVOLUNTARY RESIGNATION ... INTERIM RELIEF Leonard T. Purzycki v. General Services Administration,PH0752970271-I-1, March 9, 1999. Holding
Summary The appellant who occupied a GS-14 Business Development Officer position in the agency, appealed the agency's action denying his request to withdraw, prior to its effective date, his decision to resign on March 31, 1997. The appellant had agreed to resign on that date pursuant to an Employee Separation Agreement that he had signed under the agency's voluntary incentive payment (VSIP or buyout) program that provided a payment incentive for voluntary resignation or retirement by a certain date. In the initial decision the administrative judge found that the agency failed to show that it had a valid reason for denying the appellant's request to withdraw his resignation and that, therefore, the appellant's resignation was involuntary and constituted a constructive removal over which the Board had jurisdiction. The administrative judge reversed the agency's action on the basis that the agency failed to afford the appellant minimum due process as required under adverse action procedures. The administrative judge ordered the agency to provide the appellant with interim relief. In its petition for review of the initial decision, as evidence that it had complied with the interim relief ordered by the administrative judge, the agency submitted a copy of a Standard Form (SF) 50 Notification of Personnel Action, indicating that it placed the appellant in a GS-14, step 5, Portfolio Manager position in its Public Building Service, Portfolio Management Division. The appellant timely moved to dismiss the agency's petition for review on the basis that the agency had not provided him with complete interim relief because: the agency had not paid him for the period from the date of the initial decision to the date of his return to duty. In reviewing the case, the Board found that while the agency had returned the appellant to duty, it had placed him in a GS-14 Deputy Director position in its Portfolio Management Division and had not returned him to his GS-14 Business Development Officer position from which it had constructively removed him; and the agency had failed to make a determination that returning him to his former position would be unduly disruptive. Consequently, the Board issued a show cause order informing the agency of the documentation it was required to submit to show that it had provided the appellant with complete interim relief. The Board noted that while the law generally requires that an employee be reinstated to the position for which he or she was separated, the Board has held that an exception to the rule exists where the agency shows that it had a "strong overriding interest" or "compelling" reason for placing the employee in a different position. The Board held that this standard should also apply in interim relief cases. Therefore, the Board held that an agency should be found in compliance with an interim relief order if it can show that it had a strong overriding interest or compelling reason for assigning duties other than those assigned prior to an appellant's separation and that, if the agency can make such a showing, the Board will find that it has made an implicit undue disruption determination. In considering the agency's undue disruption determination argument, the Board noted the agency's sworn statement that he reassigned another employee to the GS-14 Business Development Officer position that the appellant originally held and, therefore, after the administrative judge ordered the agency to provide the appellant with interim relief, he reassigned the appellant to the GS-14 Deputy Director position. The agency submitted an SF-50 documenting that it reassigned the employee concerned to the appellant's original position. Based on the agency's undisputed assertions, the Board found that the agency had shown that it had a strong overriding interest or compelling reason for assigning to the appellant duties other than those assigned him prior to his separation., i.e., the reassignment of another employee to the appellant's position. Thus, the Board found that the agency had made an implicit undue disruption determination. The Board also found the agency in compliance with the interim relief order. Also, in its petition for review, the agency contended that the administrative judge erred by not finding that the Employee Separation Agreement that the appellant signed was a valid, enforceable contract and by finding that the agency lacked a valid reason for denying the appellant's request to withdraw his resignation. In reversing the agency's action, the Board concluded that granting withdrawal requests, except under the agency's hardship policy, would have been administratively disruptive to the agency's overall FTE-reduction process and that, therefore, the agency had a valid reason for denying withdrawal requests, except under it's hardship policy. However, in this case the Board found that the appellant satisfied the agency's standard of extreme hardship or extraordinary circumstances because of his unforeseen medical condition, the employee stated that he was diagnosed with diabetes mellitus after he signed the agreement and feared that the disease would diminish his employment opportunities. Under these circumstances, the Board found that the administrative judge correctly concluded that the agency failed to establish that it had a valid reason for not permitting the appellant to withdraw his resignation before its effective date. Accordingly, the Board ordered the agency to cancel the appellant's constructive removal. VOLUNTARY RETIREMENT/RESIGNATION ... VOLUNTARY SEPARATION INCENTIVE PAYMENT Gloria Ward-Ravenell v. General Services Administration, DC0752970548-I-1, March 9, 1999 and Albert Perrine, Sr. v. General Services Administration, DC075297041-I-1, March 9, 1999. Holding When an agency denies a request to rescind a resignation or retirement, the agency denial of such request, based on a determination of administrative disruption, will be closely reviewed by the Board. Decision Summary In the two cases listed below the Board examined an agency's right to deny an employee's request to withdraw a voluntary retirement/resignation agreed to in a Separation Agreement authorized under the Federal Workforce Restructuring Act of 1994. Under the Act, agencies could provide a voluntary separation incentive payment (VSIP) of up to $25,000 if employees voluntarily separated from service. At the General Services Administration these agreements were reached with employees in 1994 and 1995, however, employees had the option of separating up to two years after the agreements. Appellants in the cases listed below entered into the Separation Agreements and then, prior to the effective date of their scheduled separations, asked to withdraw their voluntary retirements/resignations. The agency denied the requests and appeals followed. In its analysis, the Board found that the agency demonstrated the need to hold most employees to their buyout commitments in order to successfully lower the agency's FTE level to meet necessary staff reductions. The Board recognized the agency's "hardship policy" which provided for circumstances, such as the unexpected death of a spouse, under which employees would be released from their Separation Agreement. In adjudicating the appeals the Board examined the level of hardship presented by the appellant and carefully considered whether or not the circumstances were unforeseeable at the time the appellant entered into the Separation Agreement. In the first case, Ward-Ravenell v. General Service Administration, DC0752970548-I-1, the appellant signed the Separation Agreement, electing to retire with a buyout on December 31, 1996. The agency approved the agreement , and subsequently granted her request to extend the retirement date to March 31, 1997. On October 16, 1996, the appellant requested to withdraw her retirement. The agency denied her request on the grounds that her situation did not rise to the level of extreme hardship. On March 31, 1997, the appellant retired with a buyout. On appeal the administrative judge found that the agency established that granting the appellant's withdrawal request would have caused administrative disruption. He further found that the agency failed to show that it had a valid reason for denying the withdrawal request because the appellant satisfied it hardship standard for withdrawal. On petition for review to the full Board, the agency argued that the AJ erred by substituting his judgment for that of agency management with regard to the hardship standard. The appellant responded in opposition to petition. In reviewing the appeal the full Board disagreed with the agency's argument that the Board was without authority to examine whether the appellant satisfied the hardship or extraordinary circumstances standard. In requesting to withdraw her buyout commitment, the appellant contended that when she signed the agreement in February 1995, her mother was in good health, but that in August and September 1996, her mother's legs were amputated due to vascular disease. She stated that as an only child, she had sole responsibility for her mother's care. She further stated that medical evidence was available to support her statements and explained that her retirement income would be insufficient to modify her home to accommodate her mother and to otherwise care for her mothers needs. The Board agreed with the AJ's findings and concluded that under these extraordinary circumstances, retiring would cause a severe financial hardship for the appellant and that the hardship standard was thus satisfied. Accordingly, the Board canceled the appellant's retirement. In the second case Albert Perrine, Sr. v. General Services Administration, DC0752970451-I-1, March 9, 1999, the Board found that the appellant did not satisfy the agency's standard of extreme hardship or extraordinary circumstances. In requesting to withdraw his retirement commitment, the appellant contended that he was unmarried in March 1995, when he signed the Separation Agreement, but married in April 1996 and was planning to have children. He further contended that his marriage "increased the need for financial stability and security" and that his early retirement would cause "financial strain" and would "adversely affect him and his wife both financially and personally." The Board concluded that the appellant's voluntary decision to marry did not approach the hardship example the agency gave of the unexpected death of a spouse and found that the agency did not abuse its discretion in deciding that the appellant failed to satisfy the standard of extreme hardship or extraordinary circumstances. Because the appellant did not satisfy the agency's standard for the hardship exception, the agency properly denied his withdrawal request. Accordingly, the Board concluded that it lacked jurisdiction over the appellant's retirement. USERRA AS AN AFFIRMATIVE DEFENSE Robert E. Morgan v. United States Postal Service, DE-0752980136-I-1, March 1, 1999. Holding An appellant may assert the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) as an affirmative defense, as it falls under the third category of affirmative defenses, namely, that "the [agency's] decision was not in accordance with law." 5 U.S.C. § 7701(c)(2)(C). There are two methods of proof an appellant may use in supporting a discrimination claim in violation of USERRA: direct evidence of discriminatory intent - subject to the USERRA standard of review, or circumstantial evidence - subject to Title VII burdens of proof and production. Summary In appealing the agency's removal action, the appellant challenged his removal and alleged that he was discriminated against because of his disabled veteran status. In the acknowledgment order, the administrative judge failed to notify the appellant: (1) that his claim of discrimination might bring his appeal within the scope of USERRA, which prohibits Federal agencies from discriminating against individuals on the basis of their prior military service, and (2) what burdens of proof such a claim would require of him. The initial decision affirmed the agency's removal of the appellant and the administrative judge noted that by failing to submit any evidence or argument concerning his claim of discrimination based on his status as a veteran, the appellant had not met the burden of proof. USERRA (38 U.S.C. 4311) specifically prohibits an employer from denying an employee retention in employment or any other benefit of employment because of the employee's past, present, or future military service. On review, the Board stated that an employer who takes action against an employee because of the employee's military service is taking an action that is not in accordance with the law, and any allegation of such discrimination can be asserted as an affirmative defense under 5 U.S.C. § 7701(c)(2)(C). Since the appellant implicitly pled USERRA as an affirmative defense, he is entitled to present testimony and evidence at the hearing on the merits of his allegation that the agency discriminated against him because of this prior military service. Because the administrative judge failed to notify the appellant that his claim of discrimination might bring his appeal within the scope of USERRA and the associated burdens of proof, the Board remanded the case for hearing and adjudication. Before holding the hearing though, the administrative judge must first determine if the appellant has sought the assistance of the Secretary of Labor by filing a complaint within the meaning of 38 U.S.C. § 4322. If the proceedings before the Secretary have not been exhausted, the Board has no jurisdiction over this claim. Once jurisdiction has been established, the administrative judge must determine what method of proof the appellant wishes to use in supporting his claim that the agency discriminated against him in violation of USERRA. There are two ways the appellant may support his claim: (1) using direct evidence of discriminatory intent, in which case the administrative judge would analyze the claim in accordance with the USERRA standard of review, or (2) more indirectly by showing that discriminatory intent could be inferred from relevant circumstantial evidence, which would prompt the administrative judge to apply analogous burdens of proof and production under Title VII of the Civil Rights Act of 1964 for analyzing discrimination claims based on circumstantial evidence. Comments This is the first case where the Board has in detail discussed the pleading of USERRA as an affirmative defense. While USERRA remains a complicated and potentially substantial basis for challenging agency actions, the number of decisions addressing USERRA claims is so far fairly limited. 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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