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 Number 132 November 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. DISCRIMINATION ... COMPENSATORY DAMAGES. Supreme Court finds that compensatory damages may be awarded in administrative proceedings. West, Secretary of Veterans Affairs v. Gibson, 119 SCt 1906, June 14, 1999. RETIREMENT ... VOLUNTARINESS. The Federal Circuit holds that all relevant non-frivolous allegations must be viewed as a whole in determining whether a retirement is involuntary. Middleton v. DOD, No. 98-3409 (Fed. Cir., August 10, 1999). DUE PROCESS ... EX PARTE COMMUNICATIONS...HARMFUL ERROR. Court finds that ex parte communications to a deciding official of new and material evidence constitute violations of constitutional due process. Milton Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. June 11, 1999). WHISTLEBLOWING ... JURISDICTION. The Federal Circuit sets the proper test to determine whether an employee has a reasonable belief that Government actions evidence gross mismanagement. Lachance v. White and MSPB, No. 98-3249 (Fed. Cir., May 14, 1999). USING GRIEVANCE ARBITRATION TO ENFORCE CONTRACTUAL DEFINITIONS OF THE SCOPE OF BARGAINING. The Authority turned down exceptions to an award in which the arbitrator found, among things, that the agency had elected to bargain on (b)(1) matters when, in a Partnership article in the AFGE/SSA national collective bargaining agreement, management and the union agreed to bargain in good faith, including bargaining on issues which may fall under 7106(b)(1)[.]" FLRA said: CONTRACT REPUDIATION ... BARGAINING ON (b)(1) MATTERS. In a split decision, Member Wasserman dissenting, FLRA agreed with the ALJ that the agency didn't repudiate the terms of an agreement when it refused to bargain on a union-initiated midterm bargaining request concerning (b)(1) staffing patterns. The majority agreed with the ALJ who had found, among other things, that the provisions at issue could reasonably be interpreted as not expressing an election to bargain on (b)(1) matters. Given this reasonable interpretation, there was no clear and patent breach of the terms of the agreement. Social Security Administration and Social Security Administration, Region IX, Mesa District Office, Mesa, Arizona and American Federation of Government Employees, Local 3694, WA-CA-60600, DE-CA-70354, November 30, 1999, 55 FLRA No. 182. UNILATERAL CHANGE ... BYPASS ... LAST CHANCE AGREEMENTS. In a split decision (Member Cabaniss dissenting), FLRA concluded that management committed unilateral change and bypass ULPs when it negotiated a last chance agreement (LCA) directly with an employee (who had failed to pay a Government-issued credit card bill) without notifying and bargaining with the union. It distinguished its holding here from its holdings in 38 FLRA No. 34, # 3 and # 4, by noting that the meeting did not take place as part of a grievance pro-ceeding or a statutory appeal and thus did not involve the § 7121(b)(1)(C)(ii) employee right to represent him-/herself in the negotiated grievance procedure or the § 7114(a)(5)(A) right to designate his/her representative in an appeal action. As a remedy, FLRA ordered that, at the request of the union, the LCA be voided and that the employer purge all copies of the LCA from the employer's files. Social Security Administration and American Federation of Government Employees, Local 1923, WA-CA-60297, September 30, 1999, 55 FLRA No. 160. DELAYING THE EXERCISE OF MANAGEMENT'S RIGHTS (p. 18). In a case in which FLRA ruled on the negotiability of nine proposals, it said that it would no longer follow 25 FLRA No. 83, #4, "to the extent it holds that delay of the exercise of a management right does not affect that right within the meaning of section 7106(a)." In a footnote FLRA added that proposals that would delay the exercise of a management right pending the completion of (1) bargaining, (2) negotiated grievance procedures, or (3) statutory appeals, are negotiable. Thus, apart from these three exceptions, proposals that delay the exercise of a management right interfere with that right. (But keep in mind that a "delay proposal" may still be a mandatory subject of bargaining if the delay is an "appropriate arrangement," as, e.g., FLRA had concluded regarding proposal #7 in this case.) National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 0-NG-2244, November 29, 1999, 55 FLRA No. 176. RATE OF PAY FOR REHIRED STRIKERS. In a split decision (Member Wasserman dissenting) FLRA turned down union exceptions to an award in which the arbitrator held that the agency did not violate the collective bargaining agreement when it decided to pay certain air traffic controllers (those rehired as a result of President Clinton's directive rescinding the ban on their employment) at the GS-9, Step 10 level (instead of at their highest previous grade). The Authority rejected the union's claim that the award is contrary to regulation. National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 0-AR-3104, October 21, 1999, 55 FLRA No. 167. DISABILITY RETIREMENT. Where an agency accommodates an employee's medical limitations by providing light duty assignments that will continue as long as needed, the employee does not qualify for disability retirement benefits. Bruce A. Bracey & Robert L. Wilson v. Office of Personnel Management, DC-831E-97-0642-I-1 & AT-844E-97-0645-I-1, August 30, 1999. REDUCTION IN FORCE. An employee who voluntarily accepts another position after receiving a RIF notice does not have a right of appeal. Steven L. Johnson v. Department of the Army, DC-0351-98-0045-I-1, July 28, 1999. WHISTLEBLOWING ... JURISDICTION. The Merit Systems Protection Board describes the level of specificity required by a whistleblower's disclosure in order to be covered by the law. Keefer v. USDA, SE1221960549-W-4, July 8, 1999. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA). USERRA does not authorize the Board to adjudicate claims outside a USERRA complaint or order remedial action on any basis other than a USERRA violation. Thus, in USERRA cases involving personnel actions that are not otherwise appealable, the Board may not consider non-USERRA discrimination claims. Robert J. Bodus v. Department of the Air Force, CH3443970520-1-1, June 16, 1999. COURT DECISIONS DISCRIMINATION ... COMPENSATORY DAMAGES West, Secretary of Veterans Affairs v. Gibson, 119 SCt 1906, June 14, 1999. Holding Compensatory damages may be awarded in administrative proceedings. Summary In 1991, Congress amended Title VII in the Compensatory Damages Amendment (CDA), which, among other things, permits victims of intentional discrimination to recover compensatory damages awards in discrimination suits against Federal agencies. The Equal Employment Opportunity Commission (EEOC) thereafter granted compensatory damages in a number of cases, relying on the enforcement authority Congress had expressly given it in prior amendments. A dispute then arose in the circuits. The Fifth Circuit affirmed the EEOC's authority to award compensatory damages in Fitzgerald v. Dept. of Veterans Affairs, 121 F.3d 203 (CA5 1997). The Eleventh and Seventh Circuits found otherwise in Crawford v. Babbitt, 148 F.3d 1318 (CA11 1998) and the instant case, Gibson v. Brown, 137 F.3d 992 (CA7 1998). The Seventh Circuit noted that the section granting the EEOC enforcement authority named only equitable remedies. It then found that the award of damages by an administrative tribunal was inconsistent with the language saying compensatory damages may be recovered in an "action," since this word normally refers to judicial cases, while the word "proceedings" is the preferred term for administrative cases. It also found significant conflict with the provision granting a jury trial to "any party" on request. If damages are awarded to a complainant by the EEOC, the law gives the agency no access to court for its guaranteed jury trial. Finally, the court noted that waivers of sovereign immunity must be very narrowly construed, and one therefore cannot stretch the actual language of the statute to accomplish Congressional intent. The Supreme Court granted certiorari to resolve the issue, and by a five-to-four margin, dispatched all of the Seventh Circuit's arguments. It found the equitable remedies listed in subsection 717(b) of Title VII are explicitly not the only remedies available, and the language must be read in the light of later amendments, including the CDA. It acknowledged that "the word 'action' often refers to judicial cases, not to administrative 'proceedings,'" but found the meaning in this context was best construed by determining Congressional intent, through a reading of the whole section. The majority's reading produced no evidence that Congress intended to deprive the EEOC of authority. The Court determined that the guarantee of a jury trial can be read to refer only to cases where the parties actually get to court and, overall, that the criteria for waiving sovereign immunity are met. "For these reasons, we conclude that the EEOC possesses the legal authority to enforce § 717 through an award of compensatory damages." Comment There was never much dispute in these legal arguments about Congressional intent, and the Court's ruling probably serves primarily to render further legislation unnecessary. Practitioners will understand, of course that the Court's decision applies to other administrative proceedings as well, such as those before the Merit Systems Protection Board. WHISTLEBLOWING ... JURISDICTION John R. Middleton v. Department of Defense, No. 98-3409 (Fed. Cir., Aug. 10, 1999). Holding The Federal Circuit holds that all relevant non-frivolous allegations, including background facts, must be viewed as a whole when determining whether, if proven, they could establish a prima facie case of involuntary retirement. Summary The agency decided to remove the employee from his Assistant Principal position in a Government school in Turkey for taking a piano home without authorization. Before the removal was effected, however, the employee signed a settlement agreement in which he agreed to retire and the agency agreed to drop the removal action. He subsequently filed an appeal with the Merit Systems Protection Board alleging that his retirement was involuntary. After a Board administrative judge dismissed the appeal for lack of jurisdiction (without a jurisdictional hearing) and the full Board in Washington denied his petition for review, the employee sought review of the matter by the Court of Appeals for the Federal Circuit. The court noted that retirements are presumed to be voluntary (and thus not subject to the Board's jurisdiction) and that this presumption can only be rebutted by a showing of sufficient evidence to establish that the retirement was involuntary. In this regard, the court stated that an employee must make a threshold non-frivolous allegation of jurisdiction (i.e., involuntariness) in order to be entitled to a hearing before the Board on jurisdiction. The court noted that it applies the same standards to determine the voluntariness of retirements that one of its predecessors, the United States Court of Claims, had set in Christie v. United States, 518 F.2d 584 (Ct. Cl. 1975), for resignations. Christie's three part test to determine whether coercion or duress overturns an apparently voluntary resignation is: (1) that one side involuntarily accepted the terms of another, (2) that circumstances permitted no other alternative, and (3) that said circumstances were the result of coercive acts of the opposite party. The court also determined that all relevant non-frivolous allegations, including background facts, however, must be viewed as a whole when determining whether, if proven, they could establish a prima facie case of involuntary retirement. This the Board did not do--it instead considered the employee's allegations of coercion and duress and misinformation separately. In this case, the court considered circumstances surrounding the employee's decision to retire, including the shortness of time for his decision to retire, his serious health problems, and the remote job site (Turkey) as all leading to the court's conclusion that he had made sufficient non-frivolous allegations of coercion and misinformation to warrant an evidentiary hearing. With regard to the circumstances, the employee said that he had been given incorrect information on which he partially based his decision to retire. This information included the agency's statements that he would lose his health benefits if he were removed and that he had definite standing to challenge the voluntariness of his retirement to the Board as well as the removal if he decided to retire. With regard to the time issue, the court noted that the settlement agreement option (and retire-ment) option presented to the employee would permit him to stay on site in Turkey for about two months whereas the option of letting the agency remove him would have required him to get his affairs in order and move out of the country within some two weeks. The court said that it believed these allegations of unreasonable time pressure, if proven, along with his age, poor health, and recent surgery could establish duress (one way to demonstrate involuntariness of retirement). While expressing no formal opinion on voluntariness based on the facts before it, the court concluded that there were sufficient non-frivolous allegations of involuntary retire-ment to entitle the employee to an evidentiary hearing. The court noted that the Board's determination in this matter may well hinge on credibility findings based on live testimony and that the outcome may well be that the employee retired voluntarily and signed the settlement agreement voluntarily. The court remanded the case back to the Board to conduct an evidentiary hearing on jurisdiction. Comments One possible lesson of this case is for the agency to look at the totality of the circumstances surrounding a voluntary action like retirement. If there are factors that could weigh against the matter being consider voluntary by a third party, those factors should be addressed up front. A good vehicle for this would be a settlement agreement describing the agency's and employee's mutual understanding of any problematic factors. DUE PROCESS ... EX PARTE COMMUNICATIONS ... HARMFUL ERROR Milton Stone v. Federal Deposit Insurance Corporation, 179 F.3d 1368 (Fed. Cir. June 11, 1999) Holding Ex parte communications to a deciding official of new and material evidence constitute violations of constitutional due process. Summary Mr. Stone appealed his removal for specific instances in which he falsified slips he gave the agency to support his leave requests. During discovery, he learned that the deciding official had received memoranda from the proposing official and another management official before he made his decision. He argued that these ex parte communications constituted harmful error and warranted reversal of the action. The administrative judge affirmed the removal, noting that there is nothing inherently improper about ex parte communications between proposing and deciding officials during the decision-making process. He did not address whether harmful error had occurred. Petitioning the court for review, Mr. Stone again claimed the ex parte communications had introduced new, prejudicial information to which he had not had the opportunity to respond. Since this violated his constitutional right to due process, the removal should be considered void. The court found that not every ex parte communication to a deciding official would violate the constitutional right to notice, but "[t]he introduction of new and material information" would do so. It instructed the Board to consider the individual facts of each case to determine whether any alleged improper communications rose to that level. "Among the factors that will be useful for the Board to weigh are: whether the ex parte communications merely introduce 'cumulative' information or new information; whether the employee knew of the error and had a chance to respond to it; and whether the ex parte communications were of the type likely to result in undue pressure upon the deciding official to rule in a particular manner." It remanded this case without expressing an opinion about whether the communications at issue rose to the"new and material" level. Comment This decision has raised a number of questions. For one thing, some have noticed that the criteria suggested by the court for determining whether communications are"new and material" compel analysis very similar to that required for a harmful error determination. It is therefore difficult to say why the court labored at such length to say that the harmful error rule does not apply in these cases. On a more practical note, agencies have encountered difficulty with conduct that occurs after the proposal but before the decision. Prior Board precedent had allowed such conduct to be mentioned for its bearing on the appellant's rehabilitation potential, but Stone, and Westmoreland v. Department of Veterans Affairs, 83 M.S.P.R. 625 (1999), which applies it, suggest this is no longer possible. If conduct occurring after the proposal could plausibly be significant to either the charge or the penalty, the agency will be wise to put the appellant on notice of its consideration of the conduct, and give the appellant additional time to respond. Agencies may also want to take Stone into account when choosing charges, in those circumstances where there are a number of instances of misconduct to consider. It could be prudent to include misconduct that is likely to be mentioned in depositions or hearing testimony by the deciding official, even though the proposed penalty is actually supported by other misconduct. WHISTLEBLOWING ... JURISDICTION Janice R. Lachance v. John E. White and Merit Systems Protection Board, No. 98-3249 (Fed. Cir., May 14, 1999). Holding
Summary The employee in this case worked as a GM-13 Supervisory Education Services Specialist with the Air Force in Nevada. In 1992, the agency implemented a new policy that mandated quality standards for schools contracting with Air Force bases for educational services. In a meeting attended by representatives of the schools and the Tactical Air Command, the employee criticized the manner in which the agency implemented the policy and some of the policy's requirements on the school representatives which he considered to be burdensome. He reiterated his concerns privately to other agency officials later. When the employee subsequently was detailed, he filed a complaint with the Office of Special Counsel claiming the detail was in reprisal for whistleblowing. The Merit Systems Protection Board ultimately reviewed the matter and devised a new test for determining who is a whistleblower. Section 2302(b) of title 5 of the United States Code provides that agency employee may not take a personnel action against an employee "because of any disclosure of information by an employee . . . which the employee reasonably believes evidences . . . gross mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety." (Bold added.) The Board's new test stated that an employee's belief is "reasonable" if it is shared by similarly situated employees. Here, the employee had introduced evidence that other employees he knew agreed that his complaint exposed gross mismanagement. He also introduced evidence that the representatives of the schools who would have been subjected to additional reporting requirements if the policy were implemented believed this as well. The Office of Personnel Management took the case to the Court of Appeals for the Federal Circuit arguing that the Board's new whistleblower test was in error. In particular, the Office argued the type of evidence introduced by the employee in this case is inadequate to support a violation of the Whistleblower Protection Act without an independent review of the disclosures themselves by the Board. The court agreed and noted that the Board must look for evidence to show that it was reasonable for the employee to believe that the disclosures showed the misconduct described in section 2302(b) above. To do this, the court reviewed its case law on the use of a "reasonable person standard" in the review of evidence in other matters it had decided. Based on these cases, the court concluded that the proper test in whistleblower cases to determine whether an employee has a "reasonable belief" that misconduct occurred is:"could a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee reasonably conclude that the actions of the government evidence gross mismanagement?" The court applied this test to the current facts and concluded that there was insufficient evidence to show that the employee had a reasonable belief that he disclosed gross mismanagement. In reaching this conclusion, the court relied on its decision in Alaska Airlines, Inc. v. Johnson, 8 F.3rd 791 (Fed. Cir. 1993) which states that the court will start out with a "presumption that public officers perform their duties correctly, fairly, in good faith, and in accordance with the law and governing regulations . . . . And this presumption stands unless there is "irrefragable proof to the contrary." The court stated that the Board, in considering whistleblowing cases, must consider personal bias or self-interestedness in the matter and must carry out an "evenhanded" development of the record. The court warned the Board that it may not limit its inquiry just to showing that the employee was familiar with the alleged improper activities and that others shared the employee's views. Comments The court also had some general comments about the Whistleblower Protection Act and Federal employment responsibilities. The court said the Act is not meant to be a"weapon in arguments over policy or a shield for insubordinate misconduct." The court also said that"policy makers and administrators have every right to expect loyal, professional service from subordinates who do not bear the burden of responsibility." The Board subsequently applied the court's holding in another whistleblowing case, Keefer v. USDA, SE1221960549-W-4, July 8, 1999, reported elsewhere in this issue of Significant Cases. There, the Board determined that one of its administrative judges required too high a level of specificity in determining whether the disclosures in that case were covered by the law. FLRA DECISIONS 55 FLRA No. 173 Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, 0-AR-3107, November 12, 1999, 55 FLRA No. 173. Holding The Authority turned down exceptions to an award in which the arbitrator found, among things, that the agency had elected to bargain on (b)(1) matters when, in a Partnership article in the AFGE/SSA national collective bargaining agreement, management and the union agreed to "bargain in good faith, including bargaining on issues which may fall under 7106(b)(1)[.]" Summary A National Partnership Agreement (NPA) that created a National Partnership Council (NPC) also stated, among its objectives and operating procedures for the NPC, that the parties would use consensus and alternative dispute resolution processes to ensure "full implementation of Executive Order (E.O.) 12,871 over all 5 U.S.C. ' 7106(b)(1) issues, whether at the union's request or as the result of proposed Agency action[.]" The NPC subsequently approved the charter of a union-agency workgroup empowered to make recommendations to the NPC. After meeting for more than a year, the workgroup issued its final recommendations to the NPC. However, the workgroup was unable to reach consensus on Recommendation #3, which required that SSA "develop an alternative to the current process for allocating staff resources to field offices." The agency members of the NPC considered Recommendation #3 as having died, as there had been no "joint" consensus on it. The union members of the NPC, however, wanted the NPC to use ADR to resolve the disposition of Recommendation #3. When the agency established an independent workgroup to resolve Recommendation #3, the union filed a grievance claiming that the agency's actions violated, among other things, the national agreement. The union also used ULP proceedings to challenge the agency's refusal to negotiate staff distribution issues. (The ULP, which was still pending when FLRA decided 55 FLRA No. 173, was subsequently decided in 55 FLRA No. 182, reported below.) In his award, the arbitrator stated that his role was to ascertain what the agency was obligated to do in light of the unresolved Recommendation #3. He found, among other things, that the agency had elected to bargain on (b)(1) matters when, in a Partnership article in the AFGE/SSA national collective bargaining agreement, management and the union agreed to "bargain in good faith, including bargaining on issues which may fall under 7106(b)(1)[.]" Nor was he persuaded by the employer's claim that the parties had intended unresolved issues to simply die out. He sustained the union's grievance, remanded Recommendation #3 to the NPC, ordered the parties to develop an ADR process for the purpose of coming to an agreement on Recommendation #3, and directed the parties to enlist the services of a facilitator "empowered to engage in mediation, when appropriate." In a unanimous decision, FLRA turned down the agency's exceptions to the award. It rejected the agency's contention that the award violated law (specifically, FLRA and court holdings that 7106(b)(1) is not enforceable under the FSLMRS). [W]hen a provision that concerns 7106(b)(1) matters is included in an agreement that provision becomes enforceable through grievance arbitration. [34 FLRA 573, 577.] Once the parties have defined their bargaining obligations through an agreement, the issue of whether the parties have complied with the agreement becomes a matter of contract interpretation for the arbitrator. . . . As the Arbitrator here was simply enforcing such a contractual election to bargain, the award is not contrary to law. [Emphasis added.] FLRA also rejected the agency's essence, nonfact, management's rights, and exceed authority exceptions. It also rejected the agency's claim that the award improperly requires the agency to engage in union-initiated midterm bargaining, noting that the agency had contractually committed itself to engage in such bargaining. Thus, the unsettled issue of whether a union has a statutory right to initiate midterm bargaining on matters, e.g., already covered by the contract, did not apply to the facts of this case. Comment Elections to bargain on section 7106(b)(1) matters usually involve proposals on specific (b)(1) matters, such as a specific staffing pattern or a specific methods and means. What sets this case apart is the fact that the arbitrator held that the agency had agreed to a provision committing it to bargain on (b)(1) matters generally. Although it is usual for the parties to negotiate the scope of the negotiated grievance procedure (by excluding certain matters that would otherwise be included), it is quite unusual for them to negotiate the scope of bargaining (by including certain permissive matters). Although EO 12871's directive to bargain on (b)(1) matters cannot be enforced under the statutory unfair labor practice procedures of the FSLMRS, a contractual election to bargain on (b)(1) matters can be enforced under the negotiated grievance/arbitration procedure. Under that procedure, the Authority defers to the arbitrator's interpretation of the agreement unless it can be shown that the disputed interpretation "disregards the agreement or is implausible, irrational, or unfounded." Compare this decision with 55 FLRA No. 182, reported below, where FLRA agreed with the ALJ that there had been no repudiation of the agreement because the agreement could be reasonably interpreted to mean that there was no contractual commitment to bargain on (b)(1) matters. As a matter of fact, the agency had cited the ALJ's decision in its arguments. But FLRA, in footnote 9, said the following: Although the meaning and application of this same Partnerships Article was at issue in the Union's two ULP charges against the Agency . . . , in those cases the ALJ examined only the question of whether the Agency was acting pursuant to a "reasonable interpretation" of that provision, the standard to be applied when determining whether a party's actions constitute a repudiation of an agreement. See . . . 51 FLRA 858, 862-63 (1996). 55 FLRA No. 182 Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, and Social Security Administration, Region IX, Mesa District Office, Mesa, Arizona and American Federation of Government Employees, Local 3694, WA-CA-60600, DE-CA-70354, November 30, 1999, 55 FLRA No. 182. Holding In a split decision, Wasserman dissenting, FLRA agreed with the ALJ that the agency didn't repudiate the terms of an agreement when it refused to bargain on a union-initiated midterm bargaining request concerning (b)(1) staffing patterns. The ALJ found, among other things, that the provisions at issue could "reasonably be interpreted" as not expressing an election to bargain on (b)(1) matters. Because FLRA agreed that these were reasonable interpretations, it concluded there was no clear and patent breach of the terms of the agreement. FLRA also agreed with the ALJ that there was no ULP when the agency refused the union's request for staffing pattern information to be used in bargaining staffing patterns. Given that there was no clear election to bargain on (b)(1) matters, there was no "particularized need" for the requested information. Summary This case involved allegations that respondents SSA and SSA, Mesa, Arizona, committed ULPs when together they (1) refused to bargain over SSA's allocation of staff for field offices and teleservice centers and other (b)(1) matters, (2) refused to provide information to bargain over staff allocation, and (3) refused to comply with the collective bargaining agreement (CBA). In the ALJ's view, this case involved two issues: (1) whether SSA and SSA Mesa violated the FSLMRS and, if not, whether they repudiated the CBA. Regarding the first issue, the ALJ held that section 2(d) of EO 112871 did not constitute an election to bargain over (b)(1) matters, and accordingly recommended dismissal of this issue. Regarding the alleged breach of the CBA, the ALJ held, among other things, that section 2 of the 1996 partnership article of the CBA "could reasonably be interpreted as not expressing an election, but rather expressing a commitment to good faith bargaining when an election to bargain has been made." He also found that the CBA article could reasonably be interpreted as applying to actions of partnership councils. This interpretation, he continued, was supported by a bargaining history in which the union's initial proposal (which would have required bargaining over (b)(1) matters) was withdrawn in favor of more ambiguous language. The ALJ found that even if the respondents breached the 1996 CBA, the breach was not "clear and patent." Finally, there was no obligation to provide staffing pattern information because the agency had not elected to bargain on (b)(1) matters. FLRA, citing its decision in 54 FLRA at 387 and the D.C. Circuit's decision in National Association of Government Employees, Inc. v. FLRA, agreed with the ALJ that EO 12871 does not constitute an election to bargain on (b)(1) matters. In concluding that a preponderance of the evidence supported the ALJ's conclusion that the respondents didn't repudiate the 1996 national agreement, it said the following: In Scott AFB [51 FLRA 858], the Authority explained that it is not always necessary to determine the precise meaning of a provision in order to analyze an allegation of repudiation. Specifically, in those situations where the meaning of a particular term in an agreement is unclear, acting in accordance with a "reasonable interpretation" of that term, even if it is not the only reasonable interpretation, does not constitute a clear and patent breach of the terms of the agreement. . . . FLRA also agreed that there was no ULP when SSA refused to provide information related to staff allocation. "AFGE relies solely on Charging Party Council's asserted right to engage in bargaining over section 7106(b)(1) matters as the basis for Charging Party Council's particularized need for the information. As Charging Party Council had no such right in this case, AFGE's showing of a particularized need must fail. Accordingly, Respondent SSA did not violate the Statute when it refused to furnish the information." 55 FLRA No. 160 Social Security Administration and American Federation of Government Employees, Local 1923, WA-CA-60297, September 30, 1999, 55 FLRA No. 160. Holding In a split decision (Member Cabaniss dissenting), the Authority concluded that management committed unilateral change and bypass ULPs when it negotiated a last chance agreement (LCA) directly with an employee (who had failed to pay a Government-issued credit card bill) without notifying and bargaining with the union. It distinguished its holdings here from its holdings in 38 FLRA No. 34, proposals # 3 and # 4, by noting that the meeting in question did not take place as part of a grievance proceeding or a statutory appeal and thus did not involve the section 7121(b)(1)(C)(ii) employee right to represent him/herself in the negotiated grievance procedure or the section 7114(a)(5)(A) employee right to designate his/her representative in an appeal action. As a remedy, FLRA ordered that, if requested by the union, the LCA be voided and that the employer purge all copies of the LCA from the employer's files. Summary In 38 FLRA No. 34, the Authority held that while a proposal (#3) giving the union a contractual right to be present at LCA deliberations was negotiable, a proposal (#4) giving it the right to negotiate the substantive terms of a last chance agreement is nonnegotiable because it is incon-sistent with sections 7114(a)(5)(A) [subsequently renumbered 7114(a)(5)(A)] and 7121(b)(3) [subsequently renumbered 7121(b)(1)(C)(ii)]. FLRA there noted that: Under section [7121(b)(1)(C)(ii)] . . . employees have the right to represent themselves in grievances pursued through the negotiated grievance procedure. . . . Under section [7114(a)(5)(A)] . . . in matters not pursued through the negotiated grievance procedure, employees have the right to choose their own representative. The ALJ, noting that the Authority did not expressly limit its holding to LCAs occurring in the context of grievances or appeals, concluded it also applied to LCAs negotiated outside the context of a grievance or appeal procedure. Finding that the union had no right to negotiate the employee's LCA, the ALJ recommended dismissal of both the bypass and the unilateral change ULPs. FLRA disagreed. Sections 7121(b)(1)(C)(ii) and 7114(a)(5)(A) permit employees to represent themselves or secure representation other than a union in specific, defined situations where grievance or appeal procedures have been invoked. In this case, the Respondent conceded that it had not "taken any action against the employee" and that "there is no contractual or statutory appeal that is pending." . . . Therefore, these statutory exceptions are not implicated in this case. As such, they cannot override the Union's right to negotiate concerning employees' conditions of employment. . . . [I]n the circumstances presented by this case, the Respondent violated its obligation to notify the Union and bargain conerning proposed changes in the employee's conditions of employment imposed in the last chance agreement. FLRA went on to also find that the employer illegally bypassed the union. "Here, the Respondent negotiated directly with the employee concerning her conditions of employment, reaching a written agreement to alter those conditions. As such, it bypassed the Union and violated sections 7114(a)(1) and (5) of the Statute." In her dissent, Member Cabaniss distinguished between conditions of employment and working conditions--a distinction rejected by the majority. In Member Cabaniss's view, "not all changes to an employee's working conditions give rise to a finding that conditions of employment have been changed sufficiently to give rise to a bargaining obligation." She gave, as an example of a condition of employment "the decision to create a policy to discipline employees for a certain type of conduct." An example of a change in working conditions, on the other hand, "would be the effect on an employee of being disciplined for having engaged in that same type of conduct." Finding that this particular change in working conditions did not rise to the level of a change in conditions of employment, and that the bargaining obligation attached to a change in the latter (but not necessarily to the former), she concluded that there was no violation of the employer's duty to bargain. Nor was there a bypass. The majority rejected the above distinction. In footnote 7 they said, in part, the following: We see no basis for the distinction, drawn by our dissenting colleague, between"conditions of employment" within the duty to bargain and "working conditions" outside the definition of "conditions of employment" and, thus, outside the duty to bargain. . . . Authority precedent confirms that the reference to "working conditions" in section 7103(a)(14) serves to describe, and limit, the conditions of employment that are included within the duty to bargain. 55 FLRA No. 176 National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 0-NG-2244, November 29, 1999, 55 FLRA No. 176. Summaries of Holdings #1. Incentive awards. A proposal allowing unit employees to select the form that an incentive award will take (cash, time off, or a QSI) is negotiable. "The proposal would permit the employee to choose cash, time off, or a QSI only if the Agency has determined more than one of these awards are appropriate for the employee." The proposal isn't inconsistent with 5 CFR 531.504, with provides that an agency may not be required to grant a QSI. "[T]he proposal does not require the Agency to grant a QSI where it has not ["determined to make a QSI available as a choice to the employee"]." Nor does it affect the rights to direct employees and assign work. Regarding the latter, FLRA reminds us that "management's rights to direct employees and assign work do not extend to the decision to grant an award." That is, there is no management right to reward. (See, in this connection, NTEU v. FLRA, 793 F.2d 371, 374 (D.C. Cir. 1986) and NFFE Local 1256 and Department of the Air Force, 31 FLRA 1203, 1206-07 (1988).) #2. Transfer of function. A proposal interpreted to mean that it requires "bargaining only over the impact and implementation of the Agency's decision to transfer a function[,]" does not affect management's rights to direct employees, assign employees, or assign work. It is negotiable. #3. Monitoring computer time and recording telephone conversations. That part of the proposal precluding the agency from monitoring employees' computer time as a method of measuring their productivity is nonnegotiable because it affects the rights to direct employees and assign work. "[P]roposals that prohibit management from using information derived from its computer system to monitor employee production have been held to directly interfere with these rights." That part of the proposal precluding the recording of telephone conversations is nonnegotiable because it directly interferes with the right to discipline. (FLRA invoked the Supremacy Clause of the Constitution (Art. VI, clause 2) to reject the union's claim that telephone monitoring is barred by a state law.) #4. Contracting out stay. A proposal establishing a stay that would prevent the agency from contracting out any of its functions that had been subject to a RIF during a one-year period after the effective date of the RIF is nonnegotiable. "[B]ecause Proposal 4 determines when management may exercise its right to contract out, we find that it affects [the right to contract out]."
Comment. Thus, apart from these three exceptions, proposals that delay the exercise of a management right interfere with that right. But keep in mind that a "delay" proposal may still be a mandatory subject of bargaining if the delay is an "appropriate arrangement." See, in this connection, proposal #7, below. #5. Hiring freezes. A proposal requiring the agency to bargain on whether to impose a hiring freeze to protect employees' reemployment rights and on the establishment of a board to determine when such a freeze would end is nonnegotiable because it affects the rights to hire and select. The union made no claim that the proposal was a (b)(2) procedure; it made only a"bare, unsupported claim" that the proposal constituted a (b)(3) appropriate arrangement "and [FLRA] will not consider such assertions"); and it provided no support for its claim that the proposal was a (b)(1) matter. #6. RIF competitive areas. A proposal limiting a competitive area to bargaining unit employees is nonnegotiable because inconsistent with 5 CFR 351.402(b), a Governmentwide regulation. #7. Reemployment priority lists (RPL). A proposal requiring the agency to select, for bargaining unit positions the agency decides to fill, candidates from the RPL who are minimally qualified as established by OPM standards, and retrainable, as determined by the agency, is a mandatorily negotiable appropriate arrangement. "[T]he burden on management's right to assign work imposed by the proposal is minimal and is not sufficient to outweigh the benefit of reemployment afforded employees under the proposal." "Because management retains discretion as to how much retraining it will require and as to the type of training provided, the proposal does not significantly restrict the Agency's ability to select an individual who will be able to perform the duties of the position." #8. RIF alternatives ... futility has no bearing on negotiability. A proposal requiring the agency to conduct a cost study, for the purpose of considering the costs of various alternatives involving furloughs, before conducting any RIF, is mandatorily negotiable. The proposal isn't inconsistent with 5 CFR 351.201(a)(2) and doesn't interfere with the right to layoff. The Agency's argument that the proposal would require a cost study even when the basis of the RIF is not cost reduction is a claim that the proposal would, in some circumstances, require a futile act. . . . The argument regarding the futility of a proposal addresses the merits of the proposal, a matter on which the Authority will not rule. #9. Continuous furloughs. A proposal giving employees the option of being furloughed on a continuous or discontinuous basis is negotiable. It isn't inconsistent with 5 CFR Part 351. "Nothing in Part 351 requires that an agency furlough all employees on either a discontinuous or continuous basis." Nor does the proposal affect the right to assign work. 55 FLRA No. 167 National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, Washington, D.C., 0-AR-3104, October 21, 1999, 55 FLRA No. 167. Holding In a split decision (Wasserman dissenting) FLRA turned down union exceptions to an award in which the arbitrator held that the agency did not violate the collective bargaining agreement (CBA) when it decided to pay certain air traffic controllers (those rehired as a result of President Clinton's directive rescinding the ban on their employment) at the GS-9, Step 10 level (instead of at the highest grade previously held). FLRA rejected the union's claim that the award is contrary to regulation, noting that the regulations at issue permitted, but did not require, that a rehired employee be rehired at his/her former grade and step. Summary In its grievance, the union challenged the agency's decision to pay certain rehired air traffic controllers at the GS-9, Step 10 level. It contended that the CBA required the agency to exercise "the flexibility authorized" by OPM to hire controllers at the grades they held when they were fired. In rejecting this interpretation of the agreement, the arbitrator said that such an interpretation would necessarily involve agency decisions about the classification of positions and the assign-ment of work and, as such, would be unenforceable. The arbitrator went on to find that the agency didn't violate the CBA in setting the pay for certain employees and denied the grievance. In its exceptions the union claimed, among other things, that the CBA required that the rehired controllers be paid the "maximum compensation allowed by law." FLRA disagreed: Both the FPM letter and the Agency regulation, cited by the Union, permit the Agency to pay a rehired employee at his/her former grade and step. However, neither the letter nor the regulation require the Agency to pay a rehired employee at the highest grade and step. FLRA also rejected the union's claim that the award is contradictory and that the award didn't draw its essence from the CBA. "The Authority's long-established standard in reviewing an arbitrator's interpretation of contract provisions is deferential because it was the arbitrator's interpretation for which the parties bargained." Although FLRA did "not necessarily endorse the Arbitrator's reasoning in arriving at his interpretation of the agreement[,]" it noted, in footnote 7, that "[i]t is long and well established that the Authority does not review arbitral reasoning in interpreting contract provisions." It cited 363 U.S. 593, 598 (1960), where the Supreme Court held that in order to encourage arbitrators to continue giving reasons for awards, an arbitrator's reasoning is not a basis for finding an award deficient. In his dissenting opinion, Member Wasserman construed the union's exception as a claim that the arbitrator was mistaken as a matter of law when the arbitrator rejected the union's interpretation of the CBA on the ground that it would be unenforceable because the placement in a particular grade was a classification decision. In Member Wasserman's view the "Arbitrator implicitly relied upon incorporation of the federal labor statute when he referred to classification, 5 U.S.C. 7103(a)(14) . . . ." In rejecting this construction, the majority said that it found "no basis in the Union's exceptions for concluding that the Union is claiming that the award is deficient as contrary to sections 7103(a)(14)(B) and 7121(c)(5) of the Statute. In fact, the Union makes no claims at all regarding these sections of the Statute." MSPB DECISIONS DISABILITY RETIREMENT Bruce A. Bracey and Robert L. Wilson v. Office of Personnel Management, DC-831E-97-0642-I-1 and AT-844E-97-0645-I-1, August 30, 1999. Holding Where an agency accommodates an employee's medical limitations by providing light duty assignments that will continue as long as needed, the employee does not qualify for disability retirement benefits. Summary In the case of Bracey v. OPM, the appellant was denied a disability retirement annuity because the agency had provided light duty assignments and maintained the employee in his same grade and pay. There was no evidence that the employee was unable to function in the light duty assignments. Further, the agency had assigned Mr. Bracey to these duties in April 1995 and he remained in that status until September 1996 when the base closed and he was separated under reduction in force procedures. There was no evidence that the light duty assignment would have stopped if the RIF did not take place. The administrative judge hearing the appeal reversed OPM and a subsequent petition for review was filed by the agency. In the case of Wilson v. OPM, the appellant was also denied a disability retirement annuity based on his placement into a light duty assignment that lasted from November 1994 to April 1996. Although the employee worked at a base that was scheduled to close, OPM found no evidence that he had been targeted for removal because of his medical condition. In this appeal, the administrative judge affirmed OPM's determination and the appellant sought review by the Board. The Board joined the two cases, recognizing that both addressed the same question of whether light duty accommodation precludes annuity payments under OPM's disability retirement regulations. The Board also exercised its statutory authority to request an advisory opinion from the Director of OPM and amicus briefs from all interested parties. The final holding of the Board in these joined cases was that these appellants were not entitled to receive disability annuities because their agencies had been successful in accommodating their medical limitations and provided work with no loss of grade or pay. Further, the Board noted that there was no reason to believe that these accommodations would not have continued indefinitely but for the closure of the military bases where these appellants were employed. The Board accepted OPM's argument that although the appellants were not placed into existing vacancies, they were maintained at their grade and pay levels and the light duty assignments allowed them to continue as productive employees. Vice Chair Slavet issued a vigorous dissent challenging OPM's interpretation of the retirement regulations. The Vice Chair argued that the statutory definition of "position" left no room for regulatory interpretation by the agency and that OPM should not be allowed to deny disability annuity benefits when an agency has accommodated an employee by assignment to other duties. Such a denial should only be allowed when a formal reassignment to an existing vacancy has occurred. Comment This decision highlights the increasing number of accommodations that are being made by agencies to address medical conditions that impact on the job and how those accommodations can impact on other entitlements, such as retirement. The pivotal issues in these cases were that the employees suffered no loss of grade or pay when they were assigned to light duty and that there was no evidence or indication that the agency had any plans to terminate the light duty. In cases where the nature of the accommodation is temporary, this should be made clear to the employee and should become a part of the agency's records regarding the accommodation. REDUCTION IN FORCE Steven L. Johnson v. Department of the Army, DC-0351-98-0045-I-1, July 28, 1999. Holding An employee who voluntarily accepts another position after receiving a reduction in force notice does not have a right of appeal. Summary The agency issued a valid reduction in force (RIF) notice that informed the appellant he would be separated by RIF. However, the employee received an offer of another position via the agency's priority placement program and he accepted that job offer. He was placed in a lower graded position with saved pay. His appeal to the Board questioned the establishment of his competitive level. However, the administrative judge found no jurisdiction since he had been placed prior to the effective date of the RIF separation. The full Board sustained the findings of the administrative judge and also addressed Harants v. U.S. Postal Service, 130 F.3d 1466 (Fed. Cir. 1997), a case in conflict with the Board's decision here. In Harants, the court found that an employee who received a RIF notice of abolishment of position without placement in another position of the same grade still had appeal rights even though he voluntarily accepted another position before the RIF action was effected. The Board examined the court's decision in Harants and found that it was based only on previous MSPB decisions. The Board found this to be an incorrect interpretation of its previous caselaw and rejected this position. Further, the Board noted that Harants involved the Postal Service reorganization that occurred without the agency providing any RIF procedures or notification. The Board distinguished the current case as one where the appellant was fully informed of his rights and elected to move to a lower graded position rather than waiting for the effective date of the RIF action. This decision divested the employee of his appeal rights. Vice Chair Slavet dissented in the majority opinion, finding that the Board should be governed by the Federal Circuit's decision in Harants v. U.S. Postal Service. WHISTLEBLOWING ... JURISDICTION James J. Keefer, et al. v. Department of Agriculture, SE1221960549-W-4, July 8, 1999. Holding The Merit Systems Protection Board holds that statute and case law do not contain a requirement that a whistleblowing disclosure be made with such specificity as to enable the recipient of the disclosure to conduct an investigation without having to return to the employee for additional information. Summary In this consolidated case, several appellants working in the Timber Investigations Branch of the Forest Service made more than 130 allegations of abuse of authority, gross mismanagement, gross waste, and violations of laws regarding the enforcement of timber theft and fraud in national forests. A Board administrative judge dismissed many of these allegations as not being protected under the Whistleblower Protection Act because they lacked specificity. Here, the judge opined that descriptions of misconduct must be specific enough to permit the individual receiving that information to initiate a "reasonably well focused investigation . . . without the intermediate step of returning to the employee to ask for a more specific explanation." The appellants took issue with this opinion and an interlocutory appeal was certified to the full Board in Washington, D.C. The Board reviewed the law, case law, and the legislative history of the Whistleblower Protection Act, and concluded that the judge erred in setting up this specificity requirement. The Board noted that it "appears" Congress intended to protect even partial disclosures. The Board said that the law does require some degree of specificity but not at the level required by the judge. Determination of whether a potential whistleblower has a reasonable belief that his or her disclosures evidences a violation of any law, rule, or regulations is an objective one, the Board noted, citing to Lachance v. White, 174 F.3d 1378 (Fed. Cir. 1999). (White, reported earlier in this issue of Significant Cases, was a case litigated by the Office of Personnel Management under its statutory intervention authority.) The Board summarized the court's holding on this objective test as follows: . . . whether a disinterested observer with knowledge of the essential facts known to and readily ascertainable by the employee could reasonably conclude that the actions of the agency evidence a violation of law, rule, or regulation, gross mismanagement, a gross waste of funds, and abuse of authority, or substantial and specific danger to public health or safety. The Board vacated the judge's specificity-based rulings and remanded the matter back to it regional office for application of the appropriate standard to the appellants' allegations. UNIFORMED SERVICES EMPLOYMENT AND REEMPLOYMENT RIGHTS ACT (USERRA) Robert J. Bodus v. Department of the Air Force, CH3443970520-1-1, June 16, 1999. Holding USERRA does not authorize the Board to adjudicate claims outside a USERRA complaint or order remedial action on any basis other than a USERRA violation. Summary The appellant was demoted during a temporary appointment. On appeal, he claimed, among other things, that the demotion was based on age discrimination and a violation of his rights as a veteran. The administrative judge dismissed the appeal for lack of jurisdiction. However, the full Board found that it may have jurisdiction under USERRA and remanded the case to the administrative judge. In determining the extent of its jurisdiction under USERRA, the Board examined the language of 38 USC Chapter 43 and the legislative history, and found that the statute limits the Board's authority in pure USERRA cases to determining whether the agency has violated USERRA. (According to the Board, pure USERRA cases are those involving personnel actions that are not otherwise appealable to the Board.) The Board pointed out that pure USERRA cases are not appeals of personnel actions. Rather, they are petitions for remedial action like Special Counsel petitions for corrective action and individual right of action (IRA) cases. It said that the Board may adjudicate an allegation that the agency has not complied with USERRA and, if the Board determines that the complainant has proved this allegation, order remedial action. As remedial action, the Board may only order the agency to comply with USERRA and provide back pay. The statute does not authorize the Board to adjudicate claims outside the USERRA complaint or order remedial action on any basis other than a USERRA violation. Thus, the Board may not consider non-USERRA discrimination claims in pure USERRA cases. The Board pointed out that veterans with pure USERRA claims who also believe that their agency committed prohibited discrimination against them on a basis other than their military service may seek redress from the EEOC. Comments This decision is important because it limits the Board's jurisdiction in USERRA cases involving actions that would not otherwise be appealable, such as demotions during temporary appointments. It clarifies that in such cases, if the employee alleges discrimination based on prior military service, the Board may adjudicate the issue. However, if the employee alleges a non-USERRA discrimination claim, such as age discrimination, the Board may not consider it.
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