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FIRST CONSIDERATION ... FILLING TEMPORARY POSITION ... BEP TESTThe Federal Labor Relations Authority (FLRA) turned down agency exceptions to an award in which the arbitrator, after finding that the agency failed to give first consideration to qualified bargaining unit applicants for two temporary positions, ordered the initial selections to be set aside and the selection process be redone in accordance with the contract's first consideration provision. (Under the agreement, the selecting official must consider unit candidates on the best qualified list for 10 days before considering candidates outside the unit.) FLRA rejected the agency's essence, nonfact, and management rights exceptions. Regarding the latter, it noted that the remedy, in ordering a rerun of the selection action, affected management's right to select. It consequently applied the BEP (Bureau of Engraving and Printing) two-prong test. (Under the first prong, FLRA determines whether an "applicable law" or a 7106(b) contract provision is being enforced. The second prong is, at bottom, a "but for" test.)Because the award was enforcing a contractual 7106(b)(2) procedure, the first prong was satisfied. "The Authority has previously found provisions which require a agency to give priority consideration to employees within a bargaining unit, but that do not prevent management from timely considering other applicants or expanding the area of consideration, to be negotiable procedures under section 7106(b)(2)[.]" The order to rerun the action in accordance with the requirements of the contract constituted a proper reconstruction of what the agency would have done had it not violated the agreement by simultaneously considering both unit and non-unit best-qualified candidates. Thus the second prong of the BEP test was satisfied. FLRA also rejected the agency's claim that the award prevented management from not selecting from the "union list." The award didn't require selection of unit candidates, only that it give "real and meaningful consideration" to those candidates. Nor did the award prevent management from expanding the pool of candidates. Social Security Administration, Chicago North District Office and American Federation of Government Employees, Local 1346, 0-AR-3191, 56 FLRA No. 37, April 28, 2000,. INFORMATION DISCLOSURE ... CREDITING PLAN DISCLOSURE ... COUNTER-VAILING INTERESTSIn finding that the agency committed a Unfair Labor Practice (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, the Federal Labor Relations Authority (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."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." 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 (Department of Justice, Bureau of Prisons, Allenwood Federal Prison Camp v. FLRA, Department of Housing and Urban Development v. FLRA (HUD1), and Department of Housing and Urban Development v. FLRA (HUD2), 988 F.2d 1267 (D.C. Cir. 1993))--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. We remind our readers 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. Health Care Financing Administration and American Federation of Government Employees, Local 1923, AFL-CIO, WA-CA-80383, March 17, 2000, 56 FLRA No. 19. JURISDICTION AND PROCEDUREIn her petition for review of the initial decision, the appellant challenged the administrative judge's (AJ's) failure to enforce his own discovery order to the agency. A central issue in the dispute concerned whether there were positions to which the agency could have reassigned her, and the Board agreed that it was "patently unfair for the AJ, having ordered the agency to provide such information, not to require it to do so, and then to find that the appellant failed to carry her burden." It is reasonable to assume this holding will apply to any discovery request which is closely tied to an issue on which the appellant bears the burden of proof. Miller v. Postal Service, CH0752990342-I-1, March 21, 2000. See also Miller v. Postal Service under Reasonable Accommodation and Medical Issues.The appellant claimed that the agency relied on matters it had not included in its notice of proposal in taking the demotion action against him. Upon review, the Board agreed. The file on which the agency relied contained statements and notes concerning incidents of alleged misconduct that were not among those included in the proposal's specifications. Furthermore, the deciding official's testimony clearly showed he considered all of this material, and didn't distinguish the specific acts listed in the proposal in reaching his decision to sustain the charge and choose the particular penalty. This was harmful error, warranting reversal of the agency's action. Turner v. Postal Service, SF0752980705-I-1, March 29, 2000. The appeal was premature, because the enforced leave had not yet exceeded 14 days at the time the appellant filed. The AJ dismissed for lack of jurisdiction, citing Himmel v. Justice, 6 M.S.P.R. 484 (1981), which states that the nature of the action at the time of the appeal determines the Board's jurisdiction. Upon review, the Board found this was the wrong case to apply. The Himmel rule is designed to keep an agency from divesting the Board of jurisdiction "through post-appeal manipulation of facts." Here, the "pro se appellant simply filed his appeal....too early" and it would divest the Board of jurisdiction to apply Himmel. The cases it prefers for this situation are Gallegos v. Air Force, 70 M.S.P.R. 483 (1996), and others cited here, where it was found more appropriate to determine if the action had become "ripe for adjudication" by the time it was before the AJ. Porter v. Postal Service, DC0752990805-I-1, March 31, 2000. The appellant had retired by the time the agency completed procedures through which he was found liable for $4,814.00 because of missing Government property for which he was accountable. The agency collected the money through an offset by OPM to his retirement account, and he appealed, claiming the agency had never established his liability and therefore had no right to his retirement money. The AJ found this claim was not part of a retirement appeal under the Board's jurisdiction. Since the Board explicitly has no jurisdiction over the agency's decision to find him financially responsible, she dismissed. Upon review, the Board agreed with her jurisdictional findings, but found an angle she had missed. One of the appellant's claims was that he did not get the hearing he requested from the agency. Through reference to applicable regulations, the Board demonstrated this was a claim "within OPM's scope of review and, derivatively, the Board's." Upon remand, the AJ is to determine whether the appeal is timely. If it is, she is to determine "whether, even pursuant to the Board's limited review authority, the offset may stand in the current posture of the case." This looks like a pretty strong hint, and appears to open up a new area of Board jurisdiction. Ramirez v. Army, DA03443990492-I-1, June 22, 2000. Preference eligible employees in the Postal Service have the unique right to file both a grievance and a Board appeal of the same action. This appellant did so, and received an arbitration award upholding the agency's removal action. The AJ, however, mitigated, finding the Board was not required to apply collateral estoppel to the penalty determination because the arbitrator had not addressed the factors cited in Douglas v. VA, 5 M.S.P.R. 280 (1981). Upon review, the Board disagreed. It applies collateral estoppel to arbitration awards when (1) the issue previously adjudicated is identical to the one now presented; (2) that issue was actually litigated in the prior case; (3) the previous determination on the issue was necessary to the resulting judgement; and (4) the party precluded by the doctrine was represented in the prior case. All of these factors were present, and the arbitrator's penalty analysis "considered factors analagous to those set forth under Douglas." For better and for worse, the Board gives extremely strong deference to arbitration awards. Farrelly v. Postal Service, DA0752990176-I-2, June 30, 2000. The AJ found the agency's action fatally flawed, because the deciding official considered material ex parte communications concerning conduct (additional AWOL) for which the appellant had received no notice and opportunity to respond. In reaching this finding, he applied Stone v. FDIC 179 F.3d 1368 (Fed. Cir. 1999). The agency argued that any consideration of additional evidence was not harmful, and arose from the wholly proper assessment of the appellant's claim that he was rehabilitated. The agency also argued that the AJ could not raise the Stone defense sua sponte. The Board soundly rejected the last argument, but agreed there was no reason to believe the error was "material," since "{t}he Board considers evidence to be material to a proceeding only where it is of sufficient weight to warrant a different outcome." Here, the appellant admitted the charged misconduct, his prior discipline, and that he was under a leave restriction when he committed the offenses underlying four of the six charges. There was therefore no reason to believe the deciding official would not have found the charges sustained in the absence of the ex parte communication. In a footnote, the Board addressed the agency's claim that it had a right to consider post-proposal misconduct because the appellant was claiming to be rehabilitated. It found no evidence in the record that appellant had made such a claim. In another footnote, it instructed the AJ that on remand, he may consider whether consideration of the ex parte communications had improperly affected the penalty. Powers v. Treasury, BN0752990048-I-1, July 5, 2000. The Federal Aviation Administration (FAA) employee was fired in November, 1996. At that time, the Board had been divested of jurisdiction over adverse actions involving FAA employees by a recent act of Congress (the 1996 Act). However, on April 5, 2000, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (the Ford Act) was enacted, restoring Board appeal rights through an amendment to a section of the 1996 Act. The amended language provides that "[t]his subsection shall take effect on April 1, 1996." When the appellant appealed his 1996 removal on April 17, 2000, the agency argued that the Board lacked jurisdiction. The Board, however, agreed with the AJ that the law meant what it said, and provided the appellant, and others similarly situated, with retroactive appeal rights. Miller v. DOT, DE0752000280-I-1, July 12, 2000. LEAVEThe agency removed the appellant for "excessive absences." Since the absences had all been approved, the administrative judge (AJ) ordered the parties to file briefs addressing whether the removal satisfied the criteria established in Cook v. Army, 18 M.S.P.R. 610 (1984). Since the appellant did not request a hearing, the appeal was then decided on the record. The first of the Cook criteria is that "the record showed that the employee was absent for compelling reasons beyond his or her control, so that agency approval or disapproval [of leave] was immaterial because the employee could not be on the job." The AJ found the agency had not met its burden of proof on this issue, since it submitted no documentary evidence regarding the reasons for appellant's absences. The agency's submissions suggested it was relying on evidence it was prepared to develop in the hearing, but, as the Board noted on review, it is the appellant, not the agency, that has a statutory right to a hearing. Absent proof that the absences are beyond an employee's control, the majority stated a presumption that they are not, and agreed with the AJ's reversal of the removal. Member Marshall dissented, saying she would sustain the removal, and was "troubled by precedent that prevents an agency from disciplining an employee for poor attendance, after providing her with an opportunity to improve..., on the basis that it granted...leave without pay...instead of denying her requests for leave." She noted that the appellant was "present for duty on only 64 of 127 available work days" and that the agency had warned her in writing that while it would approve her leave, since it believed the reasons were beyond her control, "she could be removed for excessive absences if she did not show that she had become available for work on a full-time basis." Smisson v. Air Force, AT0752990177-I-1, March 9, 2000.In settlement of a prior proposed removal, the appellant and agency substituted a 14-day suspension, and agreed that if she were AWOL within a year of the date of settlement, she would resign or be removed, and waived any right of appeal to the MSPB for the resignation or removal. Less than 3 months later, she called the agency before the beginning of her shift, requesting and receiving approval for 3 hours of sick leave to accompany her mother to a medical appointment. She did not report to work for the rest of the day or contact the supervisor who approved the leave to request additional leave, and the agency charged her with 5 hours of AWOL and proposed her removal. The charge was shown as AWOL. In support of the penalty, the proposal cited her violation of the terms of the settlement agreement, and considered her prior discipline, including the 14-day suspension. The proposal then went on to cite her agreement in the prior settlement that she would resign or be removed for AWOL in the following year, and her waiver of appeal rights for any such removal or resignation. In reply she claimed she made a number of good faith attempts on the day of her absence to contact her supervisor and the AWOL charge was therefore a breach of the settlement agreement and a violation of her FMLA rights. The agency removed her nonetheless, she appealed, and a dispute ensued about whether this was a removal within the Board's jurisdiction. The AJ found the agency was bound by the fact the proposal stated the charge as AWOL, rather than violation of the settlement agreement, but agreed to certify the issues to the Board. The Board agreed with the AJ as to the charge, but found the agency did rely on the settlement agreement in penalty selection, and when citing the waiver of appeal rights. It also found, however, that the appellant's claims against the agency required a jurisdictional hearing. Upon remand, it is the agency's "burden of proof to show that it did not interfere with the appellant's FMLA rights in taking its action." The decision is a virtual compendium of settlement case law. Covington v. Army, AT0752000124-I-1, April 11, 2000. MITIGATIONIn this case the appellant was demoted from his supervisory position for various acts of misconduct surrounding a robbery of $8,000 at his postal facility. The misconduct included his failure to set the station alarm when he left work the day of the robbery, deficiencies in his responses to investigators, and violations of office procedures. The Merit Systems Protection Board concluded that the penalty was outside the tolerable limits of reasonableness because it found that the appellant's lapses were "technical or inadvertent," that the failure to set the alarm was "inadvertent," and that the deficiencies in his responses during the investigation appeared to be "unintentional." The Board mitigated the penalty to a 90-day suspension. Jacoby v. Postal Service, CH0752990428-1-I, March 28, 2000.NON-EXCLUSIVE CREDITING PLAN ... NEGOTIABLE OPTIONSA proposal requiring management to use the union's crediting plan in evaluating candidates for vacancies is negotiable because, under the proposal, the agency is still "able to establish its own alternative crediting plan, apply it to the same candidates' qualifications, and forward the results therefrom to the selecting official as well." In thus finding that the proposal, when considered as a whole, did not interfere with management's right to select, the Authority relied on its decision in 2 FLRA No. 77, # III, where it held that as long as an "options" proposal contained a negotiable option, the proposal as a whole is negotiable. Or, as FLRA puts it in this case: "where a proposal prescribes a particular selection criterion [which would, by itself, interfere with the right to select], but also provides management an option that preserves its right to select, the proposal does not affect the exercise of that right."It must be emphasized that the Authority, in this decision, is not saying that crediting plans, as such, do not affect the right to select. (Nor does this decision say anything about the disclosability of crediting plans. See, in this connection, NTEU v. Customs, 802 F.2d 525 (D.C. Cir. 1986), where the court, in holding that crediting plans were exempt from disclosure under the Freedom of Information Act (FOIA), said that disclosure of "the evaluative criteria used by [agency] personnel would make it more difficult correctly to evaluate job candidates.") The disputed proposal (as a whole) doesn't interfere with the right to select because that portion of the proposal (the portion describing the union's crediting plan) that does interfere with the right to select is not exclusive (management is free to devise, apply, and use an alternative crediting plan) and because the results of the application of the union's crediting plan need only be "considered" (i.e., selecting officials, after considering the rankings generated by application of the union's crediting plan, can end up using the results of management's crediting plan as the basis for their selection decisions). Although negotiable, the proposal is of questionable merit. If included in a contract, it could be misleading, its extra steps could further delay the filling of vacancies (by requiring rating panels to apply two crediting plans rather than one and by requiring the selecting official to consider two, rather than one, set of rankings), and it could invite grievances and complicate their resolution. Unless read with great care, the provision--if agreed to--could be misleading: the applicant might think that the controlling crediting plan is the one explicitly laid out by the contract, when the odds are that the selecting official will use the results of management's crediting plan in making his/her decision. Association of Civilian Technicians, Inc., Heartland Chapter and U.S. Department of Defense, National Guard Bureau, Iowa National Guard, 0-NG-2491, March 31, 2000, 56 FLRA No. 30. OFFICE OF WORK/LIFE PROGRAMSOPM's Office of Work/Life Programs published The Handbook of Elder Resources for the Federal Workplace (March 2000) which provides Federal employers, managers, work/life coordinators, and employee assistance counselors with information on organizations and agencies around the country that can help employees meet their dependent care needs. The Handbook provides practical tips on how to find quality elder care, information on national and local organization dependent care resources and financial assistance and programs that help to balance work and family responsibilities.OPM's Office of Work/Life Programs sponsored its annual celebration of Older Americans Month on May 11, 2000 with a one-day conference, Older Americans: Determined and Destined to Make a Difference. This conference highlighted and the accomplishments and contributions of older persons in our society. Specifically, it provided information on how older persons are making a difference in our society as employees, users of technology, and community volunteers. In addition to the keynote speaker and workshops, an exhibit fair was held to provide practical information and resources to Federal agency personnel with responsibility for work/life programs. Federal Transportation Management Workshops. OPM was on the planning committee for the Federal Transportation Management Workshops that were held in Washington, DC. Organizations represented in the group are the National Capital Planning Commission, Department of Transportation, General Services Administration, Washington Metropolitan Area Transit Authority, the Metropolitan Washington Council of Governments and the Office of Personnel Management. The group sponsored a series of transportation management workshops in response to the signing of Executive order #13150, Federal Workforce Transportation in order to provide information to Federal agencies about the importance of transportation management planning to reduce congestion and improve mobility in our region. These workshops were ½ day sessions that provided information to Federal agencies located in the National Capital Region on the effectiveness and implementation of transportation management plan components. While all components (such as alternative work schedules, teleworking, biking and walking programs, ridesharing and guaranteed ride home programs) were discussed, emphasis for this series of workshops was on implementation of transit subsidy programs as required in the Executive Order. This Executive Order directs agencies in the national capital region to give their employees up to $65 per month to commute to work by transit or eligible vanpools by October 1, 2000 using appropriated funds. Three agencies (DOT, EPA, DOE) have been directed to conduct a three-year pilot program nationwide using appropriated funds. The agencies outside of the national capital region will be able to allow their employees to use pretax funds for transit or eligible vanpool benefits. The intended outcome of the Executive Order is to reduce congestion, air pollution and greenhouse gases and expand commuting alternatives. According to the General Counsel's Office, OPM will change its allotment regulations to permit a pre-tax allotment for the purpose of purchasing a transit pass on a pre-tax basis, effective October 1, 2000. The kick-off workshop, on June 15, featured opening remarks from Gary Caruso, Director, Regional Office of Congressional & Public Affairs, GSA; Mortimer L. Downing, Deputy Secretary, U.S. Department of Transportation; OPM Deputy Director John Sepulveda; National Capital Planning Commission Member Margaret Vanderhye; and Richard White, General Manager, Washington Metropolitan Area Transit Authority.
Created 27 February 2001 |