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 Number 134 March 2000 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 PERFORMANCE RATINGS ... METHODS AND MEANS. In a brief unpublished decision, the D.C. Circuit affirmed the Authority's decision in 55 FLRA No. 73, where the Authority held that a proposal prescribing 4 overall rating levels did not deal with § 7106(b)(1) methods and means. The court found the Authority's explanation reasonable. American Federation of Government Employees, Council of GSA Locals, Council 236 v. Federal Labor Relations Authority, No. 99-1244 (D.C. Cir. March 7, 2000). STAFFING LEVELS. The 9th Circuit agreed with the Authority's holding in 54 FLRA No. 45, that the agency did not commit an unfair labor practice when it refused to bargain on staffing levels. "Because the language of the Order is clear . . . we conclude that Executive Order 12871 does not constitute an election to bargain." American Federation of Government Employees, AFL-CIO, Council 147 v. Federal Labor Relations Authority, No. 98-70912 (9th Cir. March 3, 2000). RETALIATION FOR LAWFUL INFORMATIONAL PICKETING ... LIMITATION ON ULP REMEDIES. Although FLRA has authority to direct the Puerto Rico Air National Guard to rescind some unlawful retaliatory actions the agency took against technician employees who engaged in lawful informational picketing--such as directing the employer to rescind its decision to suspend the security clearances of 25 technicians, the Authority (Chairman Wasserm an dissenting) concluded that section 709(e)(5) of the Technician's Act precludes FLRA from reviewing the employer's retaliatory termination of the employee who was the union president. "We recognize that the National Guard's immunity from prosecution in ULP proceedings for retaliatory discharges of civilian technicians leaves meaningful rights Congress provided technicians under the Statute largely unenforceable. . . . Nevertheless, it is for Congress, not the Authority, to correct this injustice." Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, Puerto Rico and American Federation of Government Employees, Local 3936, AFL-CIO, BN-CA-90241, March 21, 2000, 56 FLRA No. 21. INFORMATION DISCLOSURE ... DECIDING BETWEEN GRIEVANCE OR EEO PROCEDURE ... SPECIFICITY. In finding that the agency committed a ULP when it failed to provide sanitized rating information related to the filling of a couple of unit vacancies with external candidates, FLRA said that the requested documents related to the union's repre-sentational responsibilities, given that the union wanted the information in order to advise a unit employee whether to use the negotiated grievance procedure or the EEO complaint procedure. FLRA also rejected, among other things, the agency's claim that the union's request wasn't sufficiently specific because it neither identified what act or failure to act the agency committed nor specified any promotion law/regulation allegedly violated. "To require the Union to describe the exact nature of the alleged irregularities is asking too much of the Union. In essence, the Respondent is asking the Union to describe the potential contents of the documents it has not seen." Health Care Financing Administration and American Federation of Government Employees, Local 1923, AFL-CIO, WA-CA-80383, March 17, 2000, 56 FLRA No. 19. UNION-INITIATED MIDTERM PROPOSALS. In a case decided as a result of a Fourth Circuit remand (prompted by the Supreme Court's decision in NFFE v. Interior, 526 U.S. 86 (1999), reported in Significant Cases No. 128), the Authority in effect reaffirmed the position it held prior to the Fourth Circuit decision. "[W]e hold that agencies are obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters not 'contained in or covered by' the existing agreement unless the union has waived its right to bargain about the subject matter involved." Member Cabaniss didn't think it necessary to reach the statutory question in order to dispose of the case. But given that the majority did decide that question, she thought they were being inconsistent in not also addressing closely related issues, such as whether zipper clauses are a mandatory subject of bargaining. U. S. Department of the Interior, Washington, D.C. and U. S. Geological Survey, Reston, Virginia and National Federation of Federal Employees, Local 1309, WA-CA-30451 (52 FLRA 475 (1996), February 28, 2000, 56 FLRA No. 6. PRODUCTIVITY MEASURES ... PERFORMANCE APPRAISALS...METHODS AND MEANS APPROPRIATE ARRANGEMENTS ... MIDTERM BARGAINING. In a case involving 78 proposals (27 of which were dismissed because the agency never alleged they were nonnegotiable, 5 of which were dismissed because they were resolved by the Impasses Panel, and 3 of which were dismissed because the record was insufficient to determine their negotiability) the Authority determines the negotiability of proposals related to performance evaluations, methods and means, and midterm bargaining. INVOLUNTARY RESIGNATION. In considering allegations of intolerable working conditions, an administrative judge is not limited to the six-month period before the alleged involuntary resignation. Furthermore, dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are generally not so intolerable as to compel a reasonable person to resign. G. Diane Miller v. Department of Defense, Docket Numbers, CH-0752-98-0613-1-1 and CH-1221-98-0580-W-1, February 25, 2000. SETTLEMENT AGREEMENT. A purported agreement with an agency is not binding unless the other party can show that the official with whom the agreement was made had the authority to bind the Government to the agreement. Where the agency makes a nonfrivolous claim that its agent lacked authority to enter into a settlement agreement, the employee bears the burden of proving that the agent had authority to bind the agency. Lynn L. Russell v. Department of the Navy, SF0752990007-I-1, February 22, 2000. MITIGATION. When the Board orders an agency to demote a managerial employee toa lower-graded nonmanagerial position, without specifying that the demotion should be accomplished with the least reduction in pay, the agency must set the employee's pay at the step of the lower-graded position that results in the least reduction in pay unless the agency has pay-setting regulations concerning demotions for cause which require a different result. Anthony J. Stabile v. Department of Defense, NY-0752-95-0482-X-2, February 18, 2000. INTERIM RELIEF ... INDEFINITE SUSPENSIONS. The Merit Systems Protection Board holds that it has the authority to order interim relief when an indefinite suspension based on failure to maintain a security clearance is reversed. Lambert v. Navy, SF0752980778-I-2, February 14, 2000. HARMFUL ERROR ... MITIGATION. Absent an explicit agency rule to the contrary, an employee who is subject to a non-custodial interrogation in connection with allegations of misconduct has no right to counsel. Mildred N. Hylick v. Department of the Air Force, AT-0752-99-0243-I-1, February 14, 2000. DISCRIMINATION ... HARMFUL ERROR. Consideration of factors not included in the notice of proposed action is error. When the improper factors are considered only in connection with penalty determination, the Board will independently assess the penalty without consideration of the improper factors. Thomas L. Groeber v. United States Postal Service, PH-0752-96-0054-I-4, January 3, 2000. HATCH ACT. The Board denied OPM's petition for reconsideration and restated its prior holding in Special Counsel v. DeMeo that the Hatch Act does not authorize the debarment of Federal employees removed for violating the Act. Special Counsel v. Merrick Malone, Margie Utley, CB1216940015-R-1 and CB1216940016-R-1, November 10, 1999. DISABILITY DISCRIMINATION. Even if an employee's misconduct is a manifestation of a disability, neither the Rehabilitation Act nor the Americans with Disabilities Act (ADA) immunize the employee from being disciplined for the misconduct, provided the agency would impose the same discipline on an employee without a disability. Theresa M. Laniewicz v. Department of Veterans Affairs, PH0752970016-I-1, September 14, 1999. COURT DECISIONS PERFORMANCE RATINGS ... METHODS AND MEANS American Federation of Government Employees, Council of GSA Locals, Council 236 v. Federal Labor Relations Authority, No. 99-1244 (D.C. Cir. Mar. 7, 2000). Holding In a very brief unpublished decision, the D.C. Circuit affirmed the Authority's decision in 55 FLRA No. 73, where the Authority held that a proposal prescribing 4 overall rating levels did not deal with section 7106(b)(1) methods and means. The court found the Authority's explanation reasonable. Summary In 55 FLRA No. 73, reported in Significant Cases No. 129, the Authority held that a proposal prescribing 4 overall rating levels "impermissibly affects management's rights [to direct employees and assign work]" and is therefore "outside the duty to bargain." In rejecting the union's claim that the proposal dealt with section 7106(b)(1) methods and means, FLRA said the following: Proposals concerning the number and designation of rating levels do not concern how an agency performs its work or what an agency uses to accomplish its work. Rather, such proposals concern how an agency evaluates the manner in which its employees perform the work to which they have been assigned. The Authority has consistently held that an agency's determinations as to performance standards and rating levels concern the work objectives for employees. [Bureau of Public Debt, 3 FLRA 769, 776 cited.] An agency's determination of the methods and means of performing work, on the other hand, concerns how employees do their work and what they will use to accomplish those objectives. On review, the 9th Circuit refused to consider, among other things, the union's argument that rating levels are a method or means because they may provide an incentive for greater productivity: that argument, the court noted, hadn't been raised before FLRA and thus the court was without jurisdiction to consider it. The court also rejected the union's contention that FLRA's explanation, which the court found reasonable and entitled to deference, departed from FLRA's prior definition of "means." STAFFING LEVELS ... EO 12871 American Federation of Government Employees, AFL-CIO, Council 147 v. Federal Labor Relations Authority, No. 98-70912 (9th Cir. March 3, 2000). Holding The 9th Circuit agreed with the Authority's holding in 54 FLRA No. 45, that the agency did not commit an unfair labor practice when it refused to bargaining on staffing levels. "Because the language of the Order is clear . . . we conclude that Executive Order 12871 does not constitute an election to bargain." Summary When the employer moved an employee, at his request, to another unit without replacing him, thus affecting the staffing levels at the losing and gaining units, the union requested bargaining on the decision. Although the employer was prepared to bargain on the impact and implementation of its decision, it refused to bargain on the decision itself. A ULP complaint followed in which the General Counsel, citing 2(d) of EO 12871, contended that the President, in directing agencies to bargain on section 7106(b)(1) matters, had in effect "elected" to bargain on such matters. The General Counsel's theory was rejected by the ALJ as well as by a divided Authority. On appeal, the 9th Circuit, noting that no agency had been designated to administer EO 12871, reviewed the Order de novo. Turning to the language of EO 12871, it said the following: There is . . . no question that the Order is mandatory and that agencies failing to obey the Order are answerable to the President. . . . We cannot conclude, however, that the language of the Order constitutes an election to bargain. As the D.C. Circuit recently pointed out in a related case, the Order does not state that the President has elected to negotiate with labor unions . . . . Instead, it directs the head of each agency to negotiate and to instruct subordinates to do the same. . . . The distinction between the two statements may be subtle, but as the FLRA noted, "directing another to take an act is not necessarily the same as undertaking the act oneself." The court went on to say that section 3 of the Order made clear that the President didn't intend to make an election. It seems highly unlikely that a President who intended to make a legally enforceable election on behalf of all government agencies would at the same time declare that the order does not create any judicially or administratively enforceable rights. It noted that the union argued that it wasn't trying to enforce the Order but rather § 7106(b)(1) when an election is made. Although the court found this argument "intriguing," it didn't find it persuasive. "[T]he Union's theory . . . may resolve any jurisdictional problems created by section 3 [of EO 12871], but the theory cannot overcome the clear implication of section 3, which is that the Order was not intended to constitute a legally enforceable election." The court also rejected the union's claim that the OPM guidance, which stated that bargaining on (b)(1) subjects is now mandatory, supported the union's position. [T]he guidance does not state that the Order constitutes an election, only that it is mandatory, and there has never been any dispute on that point. The Union argues that the Order could only be mandatory if it constituted an election because other-wise it would have no mandatory effect; it would only be a suggestion. But the President can discipline agency heads who fail to follow the Order, and in this sense the Order has a mandatory effect. Finding the language of the Order clear, the court concluded that EO 12871 does not constitute an election to bargain. It accordingly dismissed the union's petition for review. 56 FLRA No. 21 Puerto Rico Air National Guard, 156th Airlift Wing (AMC), Carolina, Puerto Rico and American Federation of Government Employees, Local 3936, AFL-CIO, BN-CA-90241, March 21, 2000, 56 FLRA No. 21. Holding Although FLRA has authority to direct the Puerto Rico Air National Guard to rescind some unlawful retaliatory actions the agency took against technician employees who engaged in lawful informational picketing--such as directing the employer to rescind its decision to suspend the security clearances of 25 technicians, the Authority (Chairman Wasserman dissenting) concluded that the section 709(e)(5) of the Technician's Act precludes FLRA from reviewing the employer's retaliatory termination of the employee who was the union president. "We recognize that the National Guard's immunity from prosecution in ULP proceedings for retaliatory discharges of civilian technicians leaves meaningful rights Congress provided technicians under the Statute largely unenforceable. . . . Nevertheless, it is for Congress, not the Authority, to correct this injustice." Summary When the employer learned that employees in the technician bargaining unit were planning to engage in informational picketing protesting working conditions, it ordered them not to engage in informational picketing on the employer's premises, threatened surveillance, and retaliated against the picketing employees by placing them in non-duty status and suspending their security clearances. Retaliation against the employee who was the union president went further: he was involuntarily separated from the Puerto Rico National Guard for engaging in the picketing and, since he no longer was a member of the National Guard, his employment as a civilian technician was terminated. Not surprisingly, a ULP complaint followed. The ALJ found, notwithstanding the Respondent's refusal to attend the hearing on the ground that FLRA was without jurisdiction because the case involved a "military matter," that the picketing was lawful. The ALJ pointed out that among the rights protected by section 7102 is the right to engage in informational picketing on agency property, including military bases, that doesn't interfere with agency operations. Although the ALJ noted that the Authority, in Illinois National Guard, 19 FLRA 101 (1985), held that the National Guard Technicians Act, 32 U.S.C. § 709(e)(5), denied the Authority jurisdiction to review technician terminations, he recommended, among other things, that FLRA order the termination of the union president rescinded because the case "implicates important First Amendment rights protected by the Statute." As remedies he ordered, among other things, that the retaliatory actions--including the termination of the union president--be rescinded. On review, FLRA rejected all but one of the employer's exceptions to the ALJ's decision. It rejected the employer's claim that it was a state agency and therefore FLRA had no jurisdiction over it. FLRA wasn't persuaded by MSPB's decision in Melendez v. Puerto Rico National Guard, 70 MSPR 252 (1996), where MSPB held that the Puerto Rico National Guard is not a federal agency. FLRA noted that the National Guard has both state and federal functions, that technicians are federal employees, and that "[w]hen the state National Guards administer the technician program, they act in their federal capacity." It rejected the employer's claim that this case involves a military, rather than a civilian, controversy. Technicians have a dual status ("recognized by virtually every court and administrative forum to address the issue") and FLRA has jurisdiction over the civilian aspect of technician employment. FLRA said that the underlying controversy in this case relates to the civilian aspects of technician employment. Both the subject (failure to abide by negotiated agreements, retaliation against union officials, and alleged immoral practices during duty hours) and the manner of the picketing (when the technicians were on neither civilian nor military duty, with the technicians wearing civilian clothes, not military uniforms) related to civilian matters. FLRA rejected the employer's claim that FLRA was without authority to order the reinstatement of the security clearances, given that the Supreme Court, in Egan, 484 U.S. at 520, held that the MSPB didn't have authority to review the substance of a security clearance determination in the course of adjudicating an adverse action. Egan does not preclude the Authority from finding that the Respondent's retaliatory suspension of the technicians' security clearances violates the [Federal Service Labor-Management Relations] Statute. Egan precludes an agency from reviewing "the substance of an underlying decision to deny or revoke a security clearance." 484 U.S. at 520. This case, however, does not necessitate such a review. Here, the Respondent has stated unequivocally that it suspended the clearances because of the picketing. . . . [N]othing in this decision precludes the Respondent from revoking the technicians' security clearances for any lawful reason. However, the Authority has jurisdiction to find a violation where an agency suspends or revokes a security clearance for the express and sole reason that an individual exercised rights protected by the Statute. However, the majority (Chairman Wasserman dissenting) disagreed with the ALJ regarding FLRA's authority to review the termination of a technician. The Judge cited cases in which federal courts exercised jurisdiction over otherwise nonreviewable personnel actions where constitutional rights were implicated. However, the Authority's jurisdiction in ULP cases extends only to claims arising from the Statute, not constitutional claims. They noted that Chairman Wasserman, in his dissent, took the view that a ULP complaint is not an "appeal" within the meaning of section 709(e). "However, the language of section 709(e) does not permit an interpretation that limits its prohibitions to MSPB appeals and other third party reviews of the merits for 'cause' determinations. . . . Succinctly put, section 709(e) broadly prohibits any final review of a technician's termination, other than that by an adjutant general." It therefore ordered a partial remedy, concluding that it was "for Congress, not the Authority, to correct [the] injustice[]" of the agency's termination of the union president for engaging in protected conduct. 56 FLRA No. 19 Health Care Financing Administration and American Federation of Government Employees, Local 1923, AFL-CIO, WA-CA-80383, March 17, 2000, 56 FLRA No. 19. Holding In finding that the agency committed a ULP when it failed to provide sanitized rating information, including crediting plans, related to the filling of a couple of unit vacancies with external candidates, FLRA said that the requested documents related to the union's representational responsibilities, given that the union wanted the information in order to advise a unit employee whether to use the negotiated grievance procedure or the EEO complaint procedure. FLRA also rejected, among other things, the agency's claim that the union's request wasn't sufficiently specific because it neither identified what act or failure to act the agency committed nor specified any promotion law/regulation allegedly violated. "To require the Union to describe the exact nature of the alleged irregularities is asking too much of the Union. In essence, the Respondent is asking the Union to describe the potential contents of the documents it has not seen." Summary In addition to stating that an employee with an EEO complaint has the option of proceeding under the negotiated grievance procedure or under the statutory EEO procedure, the negotiated agreement advises the employee to "consult with the Union" when electing the forum for the EEO complaint. When two unit employees learned that they were not selected for two bargaining unit positions, they contacted the union, believing that they should have been selected because of their qualifications. One of the them also felt that he had been discriminated against on the basis of race. In an exchange of correspondence, the union asked the agency for information on the filling of the positions, such as the crediting plan, the rating and ranking worksheet, and the scores of qualified applicants, explaining that it needed the information in order to determine whether merit promotion procedures had been violated in the rating and ranking of applicants and to help one of the represented employees make an informed choice on the forum in which to file an EEO appeal. When the agency refused to provide the information, claiming--among other things--that disclosure would violate the Privacy Act, the union indicated that sanitized records would be acceptable. When the agency continued to refuse to provide the information, the union filed a ULP charge and the General Counsel issued a complaint. In filing exceptions to the ALJ's finding that the union was entitled to the information, the agency argued, among other things, that the union's request didn't relate to a subject within the scope of bargaining. It also argued that the request was lacking in required specificity. FLRA noted that, in order to demonstrate that information is "necessary," the union must arti-culate, with specificity, "why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." FLRA said that this case turned on whether the union established that the requested documents relate to its representational responsibilities and whether the union sufficiently articulated a "particularized need" for the data. Regarding the union's representational responsibilities, it said the following: The Union stated that one of the reasons that it needed the information was to advise the employee with the EEO complaint whether he should proceed through the statutory appeal process or through the negotiated grievance procedure. Before it could advise that employee, the Union had to make a determination as to whether it would be willing to take the individual's case to arbitration at the end of the grievance process. Determining whether to file a grievance is a basic union responsibility under the Statute. Moreover, inasmuch as the contract provided that the union would advise a unit employee who was considering filing an EEO claim, the requested information related to contract administration, which is encompassed by section 7114(b)(4)'s reference to "collective bargaining." The Authority rejected, among other things, the agency's claim that inasmuch as the recruitment notice was an "external recruitment" (both employees and non-employees were eligible to apply for the positions), the filling of the vacancies dealt with "appointments" within the meaning of section 7121(c)(4). FLRA noted that the term "appointment" in section 7121(c)(4) relates to the initial entry of an applicant into the federal service. "Accordingly, we conclude that the Judge properly held that an employee's grievance regarding an external recruitment is not precluded by section 7121(c)(4)." FLRA also rejected the agency's contention that an employee who bids for new bargaining unit positions filled through an external recruitment applies as an "applicant," not an "employee." "[B]argaining unit employees," said FLRA, "do not cease to be 'employees' merely because they apply for a bargaining unit position that is open to non-employee applicants." (FLRA also cited 47 FLRA No. 71 in support of the proposition that the process that an agency uses to fill vacant unit positions for which unit employees are eligible concern the working conditions of those employees.) The agency's assertion that the union had no representational responsibilities because an employee-applicant can pursue a claim of discrimination only through a statutory appeal was also rejected. Moreover, the union wasn't asking for information to be used in the EEO forum but rather to advise the employee on which forum to use--a role provided for by the negotiated agreement. FLRA found that the union provided sufficient information for allow the agency to make a reasoned judgment concerning disclosure. "To require the Union to describe the exact nature of the alleged irregularities is asking too much of the Union." As for the agency's claim that providing the union with rating and ranking criteria would give unit employees an unfair advantage, FLRA noted that the agency did not mention this as a "countervailing interest" when it denied the union's request. Moreover, 5 CFR 2429.5 precluded FLRA from considering this argument as the agency--according to FLRA--did not raise it before the ALJ. Comments In Department of Justice, Bureau of Prisons, Allendwood Federal Prison Camp v. FLRA (Allenwood), Department of Housing and Urban Developmentv. FLRA (HUD1), and Department of Housing and Urban Development v. FLRA (HUD2), 988 F.2d 1267 (D.C. Cir. 1993), reported in Significant Cases No. 96, p. 4, the D.C. Circuit remanded three cases involving refusal to disclose crediting plans to FLRA because the Authority had failed to consider the employers' countervailing interests against disclosure. The court said that: Section 7114(b)(4)(B) . . . requires FLRA to determine whether a union has demonstrated a particularized need for the information sought. This mandates an inquiry into whether the union has a particularized need for the information, and whether the union's need is outweighed by the agency's countervailing interest in keeping the crediting plans confidential. [Emphasis added.] In 50 FLRA No. 86 and 51 FLRA No. 26, reported in Significant Cases No. 109, p. 7, the Authority adopted a new analytical approach in dealing with union requests for information under section 7114(b)(4), in which the union had to establish a "particularized need" for the information, and the agency had to assert any countervailing interests. The Authority would then, on a case-by-case basis, balance the one against the other to determine whether or not disclosure was required. Those requirements were essentially restated in the case at bar as follows: To demonstrate that information is "necessary" a union "must established a particularized need for the information by articulating, with specificity, why it needs the requested information, including the uses to which the union will put the information and the connection between those uses and the union's representational responsibilities under the Statute." IRS, Kansas City, 50 FLRA at 669 (footnote omitted). Further, the union's responsibility for articulating its interests in the requested information requires more than a conclusory assertion and must permit an agency to make a reasoned judgement as to whether the disclosure of the information is required under the Statute. Id. at 670. The agency is responsible for establishing any countervailing anti-disclosure interests and, like the union, must do so in more than a conclusory way. [Emphasis added.] Although the agency did bring up, in its appeal to the Authority, the issue of the unfair advantage that would be given to unit employees were the crediting plan disclosed to the union, FLRA, in footnote 5, refused to consider the argument because, among other things, the agency "failed to articulate these interests to the Union at the time that it denied the Union's request." (Emphasis added.) The Authority seems to be hinting that the union might have modified its request to accommodate the agency's unfair advantage concerns--concerns that were acknowledged by the D.C. Circuit in its Allenwood decision, cited above--had the agency told it of these "countervailing interests," just as the union had agreed to sanitized records when the agency expressed its Privacy Act concerns. At any rate, we bring this aspect of this case to the attention of our readers to remind them that just as there is a burden on the union to establish a particularized need for the information it requests under section 7114(b)(4), there is a burden on the agency to bring up any countervailing anti-disclosure interests in response to the union request. The union, in short, must be given an opportunity to accommodate those concerns. Just what would constitute a reasonable accommodation (no pun intended) remains to be seen. 56 FLRA No. 6 U. S. Department of the Interior, Washington, D.C. and U. S. Geological Survey, Reston, Virginia and National Federation of Federal Employees, Local 1309, WA-CA-30451(52 FLRA 475 (1996)), February 28, 2000, 56 FLRA No. 6. Holding In a case decided as a result of a Fourth Circuit remand (prompted by the Supreme Court's decision in NFFE v. Interior, 526 U.S. 86 (1999), reported in Significant Cases No. 128), the Authority in effect reaffirmed the position it held prior to the Fourth Circuit decision. "[W]e hold that agencies are obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters not 'contained in or covered by' the existing agreement unless the union has waived its right to bargain about the subject matter involved." Summary In Interior, 52 FLRA No. 46, the Authority had held that the agency committed a ULP when it refused to bargain over a proposal authorizing union-initiated midterm bargaining--a proposal substantially identical to proposals previously found negotiable by FLRA. On appeal, the Fourth Circuit, relying on its precedent, refused enforcement. On further appeal to the Supreme Court, the Court, in a 5 to 4 decision, said that the statute is ambiguous regarding any duty to bargain on union-initiated midterm proposals and that Congress intended that the Authority, not the courts (the Court criticized both the D.C. and Fourth Circuits for their "absolute" views), should determine "whether, when, where, and what sort of midterm bargaining is required." It accordingly vacated and remanded the Fourth Circuit decision and the Fourth Circuit, in turn, remanded the case to FLRA for further proceedings consistent with the opinion of the Supreme Court. After inviting and considering briefs on the matter, the Authority held the following: [U]nder the Statute, agencies are obligated to bargain during the term of a collective bargaining agreement on negotiable union proposals concerning matters that are not "contained in or covered by" the term agreement, unless the union has waived its right to bargain about the subject matter involved; thus, the Union's proposal is within the duty to bargain because it restates a statutory obligation. In support of this conclusion it noted, among other things, that the Supreme Court, in Conley v. Gibson, 355 U.S. 41, 46 (1957), said that collective bargaining is a continuing process involving resolution of new problems not covered by existing agreements and that the General Counsel and some of the amici argued that matters appropriate for resolution by collective bargaining are sometimes unforeseen and unforeseeable at the time of term negotiations (e.g., changes in agency discretion over conditions of employment due to changes in law and regulations). "[B]y permitting unions to raise certain matters midterm, the term negotiations will, in our view, proceed more efficiently in addressing existing and primary problems, and there will be no requirement to bargain over remote and secondary issues that do not appear to raise immediate concerns." Nor did the record support the claim that requiring agencies to bargain on union-initiated midterm proposals will result in significant costs or disruptions. As for the argument that unions would avoid the "contained in or covered-by" limitation on midterm bargaining by withholding matters from term negotiations, FLRA noted that "during term negotiation either party has the ability and the right to bargain over any condition of employment, and it is an unfair labor practice for the other to refuse to engage in bargaining over such negotiable matters." That is, nothing prevents agencies from broadening the "covered-by limitation" by bringing up matters of concern to it that the union hasn't brought up. Finally, "[t]he conclusion that the covered-by and waiver doctrines have heretofore adequately regulated midterm bargaining is supported by the infrequency of midterm bargaining-related litigation." Since the disputed proposal merely restates the statutory duty to bargain midterm, FLRA held that it is within the agency's duty to bargain. In refusing to bargain over a proposal substantially identical to one previously found negotiable by FLRA, the agency violated section 7116(a)(1) and (5) of the Statute. The Authority declined to address the issues, raised by the parties and amici, of whether "zipper clauses" are a mandatory subject of bargaining, whether there may be limits on official time for midterm negotiations, or whether FLRA's current application of the "contained in or covered by doctrine" should be broadened or constricted. Resolution of these issues, which wasn't required to decide the case at bar, "is more appropriate where the[se] matters are squarely presented." Although Member Cabaniss agreed that the agency committed a ULP when it refused to bargain on the union's proposal, her conclusion wasn't based on a statutory obligation to bargain mid-term, but rather on her view that the proposal wasn't inconsistent with law or regulation. In addition, she disagreed with the analysis the majority relied upon to support its conclusion that there is a statutory duty to engage in union-initiated midterm bargaining. Moreover, the majority was being inconsistent. The majority states there is no need to address the matter of zipper clauses and the matter is not necessary to the resolution of the case before it. I note, however, that addressing the issue of an independent statutory right to engage in union midterm bargaining was not necessary to the resolution of the original decision giving rise to this matter[.] . . . This case deals only with whether a contract proposal requiring agencies to engage in [midterm] bargaining is negotiable. Whether a contract proposal (mandating union midterm bargaining) conflicts with the Statute is a different question from whether the Statute provides unions with this right independent of any contractual right to do so, yet the majority sees a need to reach the bigger issue. Having reached it, however, it now benefits no one in the federal sector to ignore the interrelated question of whether an agency can require a union to negotiate over the merits of including a zipper clause in the parties' collective bargaining agreement. 56 FLRA No. 10 Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, Washington, D.C., 0-NG-2161 and 2163, February 29, 2000, 56 FLRA No. 10. Holding and Summaries In a case involving 78 proposals (27 of which were dismissed because the agency never alleged they were nonnegotiable, 5 of which were dismissed because they were resolved by the Impasses Panel, and 3 of which were dismissed because the record was insufficient to determine their negotiability) the Authority determines the negotiability of proposals for the most part related to performance evaluations, methods and means, and midterm bargaining. Because of the length of this decision (109 pages!), we here limit ourselves to summaries of FLRA's holdings on the disputed proposals (sometimes groups of proposals), dealing with, among other things, midterm bargaining, examining time, methods and means, and performance appraisals. For more information on the parties' arguments and FLRA's reasoning, we refer the reader to the decision itself. Midterm bargaining proposals. FLRA rejected the agency's claim that proposals 66 through 77 dealt with union-initiated midterm bargaining and--given that the agency's offices were within the jurisdiction of the 4th Circuit--were therefore nonnegotiable. FLRA concluded that the agency's contention was based on a misinterpretation of the proposals. Proposal 75 was a contract reopener proposal and the remaining proposals merely required the agency to engage in impact and implementation (I&I) bargaining when the agency instituted changes in conditions of employment. (Several of the proposals state that "should the" employer make a change--e.g., mandate use of text searching, change its policy on the use of background monitoring reports, remove the paper files, etc.--the union "reserves the right to mid-term negotiations.") As for the 4th Circuit's views on union-initiated midterm bargaining, FLRA noted, in passing, that those views have been rejected by the Supreme Court in NFFE v. Interior, 526 U.S. 86 (1999). Examining time proposals. In these proposals, dealing with measurement of productivity (here, the ratio of output over time), the union proposed either (1) excluding the time employees spend on certain kinds of activities from the time that could be considered in determining productivity or (2) requiring that the time employees spend on certain types of activities--although part of the time used in calculating productivity--merely be recorded separately in a special account. In determining the negotiability of these examining time proposals, FLRA noted that in 25 FLRA No. 29--an earlier case involving the same parties (resulting in a 37-page decision dealing with 33 disputed proposals!)--it held that proposals barring management from considering time spent on certain activities in determining productivity (called "non-examining time") interfered with management's rights to direct employees and assign work, which include the right to determine what data to consider in evaluating performance. But requiring that certain activities be recorded separately, provided that that separately-recorded time (called "special examining time") could be considered in determining productivity, didn't affect any management rights. "[S]uch proposals," said FLRA, "simply require management to permit employees to record the time spent performing various duties that the Agency has assigned in a separate category; they do not preclude the agency from including the time in the total that is used to determine productivity and evaluate employee performance." Applying that reasoning to the disputed examining time proposals in the case at bar, FLRA found negotiable all the proposals requiring that time spent in certain types of activities be recorded as, in effect, "special examining time." (Many of the proposals actually stated that time spent in certain activities, or under certain circumstances, "shall be recorded separately.") One of the "special examining time" proposals--proposal # 24--actually provides for 3 options regarding time spent sorting and assembling uncollated documents. Because one of the options is a negotiable "special examining time" option, the proposal as a whole is negotiable, even though one of the options--the one involving "non-examining time"--affects management's rights. (This illustrates a principle concerning proposals combining negotiable and nonnegotiable options that was established early in program, though for some reason FLRA doesn't cite the case--which is 2 FLRA No. 77, #III, affirmed in DOD, et al. v. FLRA (1981). Because the "non-examining time" proposals, by contrast, affect management's rights to direct employees and assign work, FLRA decided whether these proposals were negotiable section (b)(3) appropriate arrangements. Examples of these determinations are as follows: Proposal #3. Even assuming that a requirement that time spent when the temperature is too hot or too cool be recorded as non-examining time is an "arrangement," the proposal excessively interferes with the rights to direct employees and assign work. Among other things, the proposal isn't limited to those employees who can't take their work to areas where the temperature is OK. Proposal #78. A proposal granting non-examining time for training on how to fill out and file "bug" reports is "sufficiently tailored" to qualify as an "arrangement." After applying the excessive interference balancing test, FLRA finds the arrangement "appropriate." "Because the proposal allows the Agency to determine whether to provide training, how much training to provide, and what type of training to provide, the benefit to employees in not using examining time for training outweighs the cost to the Agency." Methods and means proposals. Several proposals deal with section 7106(b)(1) methods and means. #41 permits unit employees to make notations in computerized search files; #52 requires the employer to keep foreign literature in the same place as U.S. literature of the same type; #53 allows unit employees to "maintain, use, and store" unofficial digests; #55 requires the agency, "where practicable," to make at least one PALM terminal available" in the workstation area; #59 requires the agency to provide "library support or equivalent" for examiners performing gene search work; and #63 requires the agency to "maintain" the paper files as long as the agency "keeps" the paper files (requiring the paper files be maintain in a certain way affects methods and means). FLRA, after finding that these proposals were "sufficiently tailored" "prophylactic" proposals designed to "eliminate the possibility" that examiners would be adversely affected, applied the excessive interference balancing test and concluded that these proposals are mandatorily negotiable section (b)(3) appropriate arrangements. Because of insufficient information, FLRA was unable to apply the excessive interference balancing test to proposals #56 (giving examiners discretion to determine whether to perform two search techniques--the agency didn't dispute it dealt with methods and means) and #65 (requiring the agency to use a particular method/mean). Consequently, it held that these proposals were electively negotiable. FLRA rejected the agency's claim that Proposal #62--which provides that the agency "may permit" examiners to use paper files when an "NDD, PNA, or equivalent has been received"--deals with methods and means. The proposal, said FLRA, "merely recognizes the Agency's discretion to permit examiners to use paper files in certain situations. The proposal neither requires the Agency to continue to maintain paper files nor requires the Agency to permit examiners to use those files in the situations stated in the proposal." Performance appraisal proposals. #20. Preventing management from "adversely affecting" a unit employee who does not report a computer system problem that the agency has "failed to define" through a "set of standards" is a negotiable appropriate arrangement. Although it affects management's rights to direct, discipline, and assign work to employees, the burdens placed on management aren't significant. #29. Precluding management from considering "an employee's printing a number of pages exceeding an arbitrary limit (if the examiner has a legitimate need or use for the pages) in a performance appraisal and from basing a disciplinary action on such action" affects rights to discipline, direct, and assign work. "As the proposal applies only to employees who otherwise would be adversely affected . . . we conclude that it constitutes an arrangement that is sufficiently tailored." The proposal passes the excessive interference test. #30. The proposal prevents the agency from using certain evidence--statistics, reports, other documents generated by the automated system--to "adversely affect" a unit employee based on alleged abuse of the automated system, "when the Agency has not established standards identifying the alleged abuse as improper." Although it affects rights to discipline, direct, assign work, it is a negotiable appropriate arrangement. The proposal is sufficiently tailored because it applies only to employees who otherwise would be adversely affected by the exercise of management's rights. #60. Precluding the agency from charging unit employees with a performance error "based on documents for which an NDD, PNA, or equivalent was displayed during the search" is nonnegotiable because it affects management's rights to direct employees and assign work. The record doesn't provide sufficient information to make an appropriate arrangement determination. #61. Establishing a method for determining whether "a newly found document" was available during a search is nonnegotiable because it affects management's rights to direct employees and assign work.. The record doesn't provide sufficient information to make an appropriate arrangement determination. #64. Precluding the agency from charging an examiner with a performance error when a "newly found reference was not in the Master Classification of the image system" affects management's rights to direct employees and assign work. The record doesn't provide sufficient information to make an appropriate arrangement determination. Miscellaneous proposals. #12. Requiring agency to provide space for periodical eye exams doesn't conflict with 5 USC 7901 or 5 CFR 890.501 and is therefore negotiable. (The agency misinterpreted the proposal to require the agency to pay for eye exams and prescription glasses.) #13. Requiring the agency to purchase eyeglasses for unit employees needing the glasses when using the computer system, without showing that the eyeglasses are safety-related equipment, is nonnegotiable because the agency can't spend appropriated funds on items that can be considered personal equipment. #21. Requiring the agency to make the automated system available to examiners 24 hours a day, 7 days a week doesn't affect management's right to determine the agency's mission (the only argument made by the agency): the proposal doesn't address the hours the agency is open to the public. #31. Requiring the agency "to disclose all monitoring to each and every employee being monitored" (emphasis by FLRA) interferes with the agency's right to determine its internal security practices. "[C]ommon sense dictates that disclosing to an employee that he/she is being monitored may affect reliability of the information collected through that monitoring." Even assuming the proposal constitutes an arrangement, its interference with the right would be excessive. "[T]he proposal would . . . require disclosure of a vast array of information that would be of little, if any, value to unit employees." #32. This proposal precludes the agency from basing a performance evaluation or disciplinary action exclusively on information from the automated system unless the agency has provided the affected employee the opportunity to review the information within a reasonable period of time after the information was obtained. The proposal excessively interferes with management's right to discipline. "[N]o ground is presented why the Union could not adequately protect the interests of unit employees without requiring disclosure of all information to every employee in advance of an adverse effect." FLRA distinguishes its holding here from its holding in 39 FLRA No. 5, #12, noting that the latter limited document disclosure only to those items that management had already decided to consider in assessing performance). This proposal, in contrast, requires that "all information collected through electronic monitoring would be furnished to each and every employee monitored in order to ensure that such information could be used to support a performance appraisal or a disciplinary action." (Italics by FLRA.) #35. Requiring the agency to provide unit employees with a minimum of 12 hours of formal classroom training on the automated system excessively interferes with the right to assign work.. "[T]he blanket nature of the proposal would deprive the agency of any discretion to deviate from a specified minimum number of hours. Moreover, [it] would constrain the Agency not only with regard to the duration of the training, but also with regard to the type of the training." #36. Requiring the agency to provide unit employees with adequate practice time on the automated system in connection with proposal #35's formal classroom training, excessively interferes with the right to assign work because it presupposes that proposal #35--which FLRA has already held is nonnegotiable--is negotiable. #37. Requiring the agency to provide unit members with appropriate refresher training on the automated system is an appropriate arrangement. The proposal merely requires agency to provide "adequate" or "appropriate" training. "The Authority has previously held that proposals providing an agency with discretion to determine the extent to which training is required, and the amount and type of that training, do not excessively interfere with management's right to assign work." 39 FLRA at 837 cited. Comments Perhaps the most interesting aspect of this lengthy decision (no fault of the Authority ... we have the parties to thank for that) is FLRA's conversion of proposals dealing with section (b)(1) methods and means--an elective subject of bargaining under the statute--into a mandatory subject of bargaining under the statute by regarding the proposals as appropriate arrangements. Moreover, the problem of "tailoring" is outflanked by treating the proposals as "prophylactic" measures designed to eliminate the "possibility" of an adverse effect. Thus, 7106(b)(3) isn't merely an exception to 7106(a) rights, but also to 7106(b)(1) rights. (Keep in mind that 7106(b) reads, in part, as follows: "(b) Nothing in this section [i.e., section 7106] shall preclude any agency and labor organization from negotiating . . . (3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section[.] Italics added. Also keep in mind that the excessive interference balancing test is a merit test.) Although FLRA was able to side-step the agency's contention regarding union-initiated bargaining by noting that the disputed proposals didn't deal with such bargaining, it did address that issue in 56 FLRA No. 6, reported earlier in this issue of Significant Cases. Actually, FLRA tipped its hand here on how it was going to decide that issue when it said that the Supreme Court had reversed the 4th Circuit. Actually, the Court, in vacating the 4th Circuit decision, rejected the "absolute" views of both the 4th and D.C. Circuits, and left it to FLRA to determine whether there is or is not a duty to engage in union-initiated midterm bargaining. INVOLUNTARY RESIGNATION G. Diane Miller v. Department of Defense, Docket Numbers, CH-0752-98-0613-1-1 and CH-1221-98-0580-W-1, February 25, 2000. Holdings
Summary The appellant asserted that her resignation was the result of agency-created intolerable working conditions. In an initial decision, the administrative judge found that she did not establish the existence of intolerable working conditions and dismissed the appeal. The Board granted her petition for review because the administrative judge had not addressed all of her 29 allegations of intolerable working conditions. The administrative judge had ruled that the Board's case law limited his consideration to the six-month period before the resignation. The Board, however, did not agree with the administrative judge, and looked at the numerous allegations of incidents that occurred prior to that period. The Board concluded that the appellant did not show that the totality of the evidence proved intolerable working conditions. In fact, citing Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994), the Board said that "an employee is not guaranteed a working environment free of stress. Dissatisfaction with work assignments, a feeling of being unfairly criticized, or difficult or unpleasant working conditions are generally not so intolerable as to compel a reasonable person to resign." Comment This decision is useful in gaining an understanding of the Board's thinking in cases involving allegations relating to "intolerable working conditions." SETTLEMENT AGREEMENT Lynn L. Russell v. Department of the Navy, SF0752990007-I-1, February 22, 2000. Holdings
Summary The agency petitioned the Board for review, arguing that the settlement in this case was invalid because the agency representative had no authority to settle the appeal. In asserting that the agency representative had no actual authority to settle the appeal, the agency relied on Wesselho ft v. Department of Interior, 46 M.S.P.R. 594 (1991). In Wesselhoft, the Board restated that "a purported agreement with the U.S. is not binding unless the other party can show that the official with whom the agreement was made had authority to bind the Government to the agreement. However, in this case, the Board addressed the term "authority," noting that actual authority, expressed or implied, may be created by "written or spoken words or other conduct of the principal which, reasonably interpreted, causes the agent to believe that the principal desires him so to act on the principal's account", and finding that express or implied actual authority will bind the Government to an agreement entered into by its agent. In its review, the Board stated that while it is not necessary to prove the agent's authority in every case, where the agency makes a nonfrivolous claim that its agent lacked authority, the appellant bears the burden of proving that the agent had authority to bind the agency. In this case, the agency submitted declarations from the agency representative and deciding official attesting to the agency's representative's lack of actual authority to settle the appeal. Additionally, the agency submitted paragraphs of its Human Resources Office Procedures, for Board appeals, which stated that Central Office, Labor and Employee Relations Branch employees must discuss Alternative Dispute Resolution and settlement options. The same document also stated that it is management's responsibility to provide settlement authority to management representatives. Accordingly, the Board concluded that the agency had made a nonfrivolous claim requiring a hearing and therefore, remanded the case to the Regional Office. However, the Board noted that if after a hearing, the administrative judge finds that the agency representative had either express or implied actual authority to settle this appeal, the settlement shall be enforced. If, on the other hand, the judge finds the agency agent did not have authority to settle, the judge shall reinstate the appeal. MITIGATION Anthony J. Stabile v. Department of Defense, NY-0752-95-0482-X-2, February 18, 2000. Holdings
Summary The Board mitigated the action to a demotion from the employee's GS-9 managerial position to the next lower-graded nonmanagerial position. The first compliance appeal successfully argued that placement in a WG-5 store worker position at a different facility did not constitute proper compliance. The Board ordered the agency to submit detailed evidence about all vacant positions at the original facility between the date of the initial decision and the appellant's reinstatement, particularly including six positions identified by the appellant. The agency was also asked about a WL-4 position the appellant claimed had been available at the new facility at the time of his reassignment. The administrative judge reviewing the agency's submissions found them incomplete, and directed the agency to comply with the remand order or submit a brief supporting its disagreement. In response, the agency argued it had already done more than it was required to do. By placing the appellant in a WG-5 position at step 5, it was paying him more than the GS-8 step 1 he was entitled to under the Board's demotion Order. The appellant argued that the agency should not be considered in compliance until it submitted all the evidence outlined in the remand order. He also argued that the Board's demotion order entitled him to a position at GS-8, step 10. The Board acknowledged inconsistency in its own prior decisions about the step at which an employee was to be placed in these circumstances. Considering the issue fully, it held that a Board-ordered demotion must always be to the step that results in the least reduction in pay, unless the agency has pay-setting regulations that explicitly address demotions for cause and require a different result. In doing so, it explicitly overruled the contrary portions of Kopec v. Army, 63 M.S.P.R. 576 (1994) and Slaughter v. Agriculture, 56 M.S.P.R. 349 (1993). It went on to say that the demotion must be in the original facility unless the agency proves either that it had no suitable vacancies, or that there were overriding circumstances unrelated to the original action. Finding that the agency has not so far submitted adequate proof of the former or claimed the latter, it again remanded for further submissions and adjudication. Comment In Hawkins v. Postal Service, 56 M.S.P.R. 633 (1993), the Board first gave notice that a demotion to the next lower-graded nonsupervisory position does not mean demotion to the highest-graded position then available. Rather, the appellant is entitled to a position at the next grade down for which he qualifies, or could qualify without undue disruption. If no such job is available at the time of the mitigation Order, the agency may place the appellant at the highest level nonsupervisory job that is available until an appropriate position becomes available that the agency elects to fill. In the following year, Lucas v. DOD, 64 M.S.P.R. 172 (1994) specified that the requirement is "to place the appellant in a nonsupervisory position with the least reduction in grade and pay." Vaughn v. Postal Service, 75 M.S.P.R. 25 (1997) clarified that the agency is not required to pay an employee at a higher level than the grade level into which he was placed, or to create a new position. Note that slightly different language in the Order imposes different obli-gations on the agency. For instance, in Sublette v. Army, 68 M.S.P.R. 82 (1995), the removal was mitigated to the highest available nonsupervisory position. In the current case, the Board based its deference to the agency's own pay-setting regulation on the reasoning that the mitigation should achieve the result the agency would have reached had it set the penalty appropriately in the first place. That is perhaps ironic considering the overall import of this line of cases. However, it is possible that an agency concerned about the likelihood of mitigation could put evidence in the record of the alternative sanctions considered and available. It could then cite the Board's own language back to it to suggest any mitigation should be limited to options that were actually available to the deciding official. INTERIM RELIEF ... INDEFINITE SUSPENSIONS Lambert v. Navy, SF0752980778I2, February 14, 2000. Holding The Merit Systems Protection Board holds that it has the authority to order interim relief when an indefinite suspension based on failure to maintain a security clearance is reversed. Summary Because the appellant was required to maintain a confidential security clearance to perform his job and that clearance was suspended, the agency placed the appellant on indefinite suspension for "Failure to Meet a Mandatory Condition of Employment." A Merit Systems Protection Board administrative judge reversed the suspension and ordered interim relief after finding that the agency had denied the appellant due process. Here, the judge ruled that providing an employee notice of a condition subsequent, i.e., when the indefinite suspension will end, at the time the suspension is proposed, is part of the adverse action due process provided by law. The Chairman of the Board, with a concurring opinion by Vice Chair Slavet, however, never reached this issue as the agency's petition for review was dismissed for failure to provide interim relief. The agency had reinstated the employee on interim relief but made the action effective a month after the date of the judge's initial decision (interim relief must be effective on the date of the initial decision). The Chairman noted that the appellant's motion to dismiss the agency's petition for review for lack of interim relief "put the agency on notice" of the potential deficiency and that the Board thus was not required to issue a show-cause order. (The agency responded the to appellant's motion confirming that it had effected interim relief on the later date but making no effort to correct that deficiency.) Member Marshall's dissenting opinion covered two issues: due process and interim relief. With regard to due process, she noted that the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 527, limited the Board's involvement in security clearance matters. She referred to recent Board decisions in Hesse v. Department of State, 82 M.S.P.R. 489 (1999) and Roach v. Department of the Army, 82 M.S.P.R. 464 (1999) for the premise that the Board continues to hold that it has limited jurisdiction over adverse actions involving security clearances. She also noted that the Court of Appeals for the Federal Circuit in its 1996 decision, King v. Alston, 75 F.3d 657, stated that the Board is only authorized in such cases to determine whether the employee was provided with "notice of the reasons for the suspension of his access to classified information when that is the reason for placing the employee on enforced leave pending a decision on the employee's security clearance." She concluded that the appellant clearly had been afforded this minimal due process--that he knew why the action was being proposed and had an opportunity to make a meaningful reply. She noted that the appellant had acknowledged he understood that he was being suspended pending a final determination on his security clearance (a condition subsequent). With regard to the interim relief issue, Member Marshall argued that cases involving security clearances should be added as a general class of cases for which interim relief is not appropriate just as the Board has done for other classes of cases, e.g. retirement cases where there is a dispute over the amount of an annuity. She commented that the relevant part of statute, Title 5 of the United States Code, Section 7701(b)(2)(A)(I), "makes it plain" that it is in the Board's discretion to order interim relief. She concluded: "[b]ecause the Board has limited jurisdiction over adverse actions involving security clearances, in my view, it is inappropriate for an administrative judge to order interim relief in an appeal involving a security clearance." Member Marshall would have accepted the agency petition for review, reversed the administrative judge's decision (and its order of interim relief), and sustained the agency's action indefinitely suspending the appellant. Vice Chair Slavet's concurring opinion argued strongly that interim relief is appropriate in cases involving security clearance issues and that the burden on agencies to provide interim relief in such cases is "no greater than" if it were a non-security related case and the agency determined that an appellant's return to duty would be unduly disruptive. While noting that the Board had taken the "extraordinary step" of not ordering interim relief in some classes of cases, the Vice Chair was firm that security-related cases should not be excluded from interim relief orders. She commented that the initial decision in Lambert did not restore the appellant's security clearance and that the Government's interest in limiting access to classified material (as discussed in Egan above) was not compromised. Comment Chairman Erdreich has now left the Board, leaving the Ms. Slavet and Ms. Marshall to disagree on this issue. Until there is a third member appointed to "break the tie," we can expect the Board's decision in Lambert to be applied in similar cases. Obviously, one of the lessons in this case is an old one--be sure to make interim relief effective the same date as the Board initial decision order the relief. HARMFUL ERROR ... MITIGATION Mildred N. Hylick v. Department of the Air Force, AT-0752-99-0243-I-1, February 14, 2000. Holding Absent an explicit agency rule to the contrary, an employee who is subject to a non-custodial interrogation in connection with allegations of misconduct has no right to counsel. Summary The appellant was charged with both deliberate misrepresentation to her supervisor, and deliberate misrepresentation under oath during an official investigation. The administrative judge (AJ) sustained both charges, but found the action had to be reversed for harmful error. The alleged error was the investigating officer's failure to inform her of her right to counsel during the interview. The AJ found this was harmful because the agency would not have removed her solely on the charge of misrepresentation to her supervisor and "the appellant would not have lied to Wade during the interview if an attorney had been present during the questioning[.]" Upon review, the Board agreed with the agency that the agency instruction "does not create a right that does not exist." There was no explicit language in the instruction entitling a subject to counsel, and "the appellant has not identified a law, rule, or regulation that required Wade to advise her of a right to counsel." The Board went on to consider a possible claim the appellant had not actually made: that the right to counsel arose from some right she had under the 5th Amendment to the Constitution. It found neither of the two usual grounds for 5th Amendment rights. She was not suspected of criminal wrongdoing at the time of the interview, and the interview was not custodial. The fact that she was considered untruthful, and lying in an official investigation is a crime, did not give her any 5th Amendment rights either. The Board quoted United States v. Babb, 807 F.2d 272 (1st Cir. 1986) where the court said that "[t]he privilege against self-incrimination bars compelled testimony as to past crimes; it does not shelter new perjury." The Board found no merit in her contention that the penalty of removal was unreasonably harsh. The deciding official had properly considered her Branch Chief position as one requiring integrity. Because of the length and quality of her service, he considered a demotion or reassignment, but found no positions that did not require some level of trust and confidence. In that regard, he testified "that he could not have employees who say they will only tell the truth if they have a lawyer." Citing many cases where the seriousness of lying had been affirmed, the Board refused to disturb the penalty. DISCRIMINATION ... HARMFUL ERROR Thomas L. Groeber v. United States Postal Service, PH-0752-96-0054-I-4, January 3, 2000. Holdings 1. Consideration of factors not included in the notice of proposed action is error, but does not warrant automatic reversal of an action. When the improper factors are considered in connection with penalty determination, the Board will independently assess the penalty without consideration of the improper factors to determine whether the penalty is within the bounds of reasonableness. 2. An employee who is perceived as disabled may still be disciplined if the agency would disci-pline any other employee for the same misconduct. Summary The administrative judge sustained two of the three specifications of misconduct, but found the appellant had established his affirmative defenses of harmful error and disability discrimination. He therefore reversed the removal. Upon review, the Board agreed with the findings concerning the three specifications, but dis-agreed with respect to the affirmative defenses. With respect to the harmful error claim, it was true that the deciding official considered incidents that had not been mentioned in the notice of proposed action. While this was certainly an error, the Board cited its analysis in Westmoreland v. Department of Veterans Affairs, 83 M.S.P.R.625, and found reversal was not required. It instead conducted its own penalty analysis without considering the improper factors and decide whether the agency's chosen penalty was within acceptable bounds of discretion. Turning to the affirmative defense of disability discrimination, the Board found it immaterial whether or not the appellant was perceived as disabled by the agency. The agency proved menacing and threatening misconduct that was so serious that it would clearly have taken the same action absent any perceived disability. Moreover, the appellant did not even claim that others were treated differently. The Board went on to find no grounds for mitigating the removal penalty. Comment This decision further confirms the Board's interpretation of Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. 1999). In that case, the court said consideration of factors not properly "noticed" is a violation of fundamental due process rights that warranted a reversal if the considered matters were material. While the court said the harmful error rule would not apply in such cases, the Board has clearly decided that the determination of whether the improper consideration is "material" is indistinguishable from a harmful error determination. HATCH ACT Special Counsel v. Merrick Malone, Margie Utley, CB-1216-94-0015-R-1 and CB-1216-94-0016-R-1, November 10, 1999. Holding The Board denied OPM's petition for reconsideration and restated is prior holding in Special Counsel v. DeMeo that the Hatch Act does not authorize the debarment of Federal employees removed for violating the Act. Summary The Office of Special Counsel (OSC) filed a complaint charging two District of Columbia government employees with violation of the Hatch Act (5 U.S.C. § 7326). Both employees resigned during the adjudication of the complaint, and OSC then amended its complaint to request that the Board debar the appellants from all positions funded by the District's appropriation. The primary issue in this decision is whether or not the Hatch Act authorizes a penalty of debarment. In its petition for reconsideration, OPM argued that removal for violating the Hatch Act must be accompanied by a permanent debarment from all positions funded by the same appropriation as the position from which the employee was removed. OPM based its position on longstanding OPM policy, the plain language of the statute, and legislative history. For over 50 years, congressional and administrative interpretation of the Hatch Act has consistently held that it mandates debarment upon a finding that a violation of the Act warrants removal. The Board, however, reaffirmed its holding in Special Counsel v. DeMeo, 77 M.S.P.R. 158 (1997) that debarment is not authorized by the Hatch Act. After a lengthy analysis, it concluded that there is no provision for debarment in OPM, MSPB, or OSC regulations, and no indication in the legislative history that Congress intended the Hatch Act to provide for debarment. Comment OPM, which decided not to proceed to the Federal Circuit in this case, is looking for a more appropriate case with which to advance our position that removal for violating the Hatch Act will be accompanied by a permanent debarment from all positions funded by the same appropriation as the position from which the employee was removed. DISABILITY DISCRIMINATION Theresa M. Laniewicz v. Department of Veterans Affairs, PH0752970016-I-1, September 14, 1999. Holding Even if an employee's misconduct is a manifestation of a disability, neither the Rehabilitation Act nor the Americans with Disabilities Act (ADA) immunize the employee from being disciplined for the misconduct, provided the agency would impose the same discipline on an employee without a disability. Summary The appellant, a telephone operator, was removed based on a charge of unsatisfactory conduct. On appeal, the administrative judge sustained portions of the specifications underlying the charge, including: appellant directed a "code blue" team to the wrong location, was abusive and discourteous to a volunteer, and used loud and obscene language in front of staff and patients. However, the administrative judge found that the appellant suffered from depression and bipolar disorder and that the agency discriminated against her based on these conditions. In its petition for review, the agency challenged only the findings of disability discrimination. The full Board agreed with the agency that it did not discriminate against the appellant. The Board cited numerous court and Equal Employment Opportunity Commission decisions that stand for the principle that an employee is not immunized from discipline simply on the basis of having a disability. EEOC case law and guidance state that neither the Rehabilitation Act nor the ADA preclude an agency from enforcing standards of conduct as long as such standards are job-related, consistent with business necessity, and enforced uniformly among all employees. In this case, the agency was able to show that its standards of conduct were appropriately applied. On the issue of reasonable accommodation, the Board noted that an agency has a duty to provide accommodation only to "otherwise qualified" employees. In this case, it said the appellant cannot be termed an "otherwise qualified" employee because she committed misconduct, and therefore, the agency did not have a duty to accommodate her limitations. Since the agency did not prove all of the specifications of the charge, the Board reviewed the reasonableness of the penalty. Board case law (e.g., Roseman v. Treasury, 76 M.S.P.R. 334 (1997)) provides that evidence that an employee's medical condition played a part in the misconduct is ordinarily entitled to considerable weight as a significant mitigating factor in determining a penalty. In addition, the effect of an appellant's use of a prescription drug that played a part in the charged conduct is a relevant factor that, when properly weighed, substantially mitigates the offense (Bond v. Energy, 82 M.S.P.R. 534 (1999)). In this case, however, the Board found that neither the prescription medications the appellant was taking nor her depression and bipolar disorder played a part in the misconduct for which she was removed: they therefore did not mitigate the penalty. Comment This is the first time the Board has specifically adopted court and EEOC holdings that disabled employees may be disciplined for misconduct even when the misconduct is caused by the disability. The decision contains a good review of court and EEOC case law on this issue. Agencies should note, however, that the Board did not change its policy of considering the appellant's disability in determining the reasonableness of the penalty. 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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