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OFFICIAL TIME ... ATTORNEY FEESFLRA turned down agency exceptions to an award in which the arbitrator sustained a grievance involving use of official time by the union president and ordered that the agency delete an AWOL notation and make the grievant whole for the five hours in dispute. It turned down the agency's essence, exceed authority, nonfact, and "law" exceptions.Regarding the latter, the majority noted that the "obey now, grieve later" principle had exceptions and used that as a basis for not finding that the arbitrator erred when he found that the contract granted the grievant "special protections" permitting her to remain on official time and refusing to return to work, as she had been ordered. (Chairman Wasserman, although agreeing with the outcome, would have held that the "obey now, grieve later" principle doesn't constitute a law, rule, or regulation--an issue the majority refused to pass on, noting that the union did not challenge the agency's claim that the principle constituted a law.) FLRA also rejected the agency's claim that the award was contrary to law because an agency may revoke leave when the justification for the leave no longer exists, noting that the grievant was not in a leave status, but was using official time. The arbitrator, after noting that the agency, as losing party, didn't pay the arbitrator's entire fee, recused itself from the union's request for attorney fees, indicating that he would be "seeking Union enforcement of the Contract[.]" FLRA turned down the union's exceptions (the union noted that only an arbitrator, not FLRA, can resolve attorney fee issues). FLRA found that, under the circumstances, the arbitrator's denial of jurisdiction wasn't deficient. It accordingly directed the parties to jointly submit the attorney fees issue to a different arbitrator for resolution. U.S. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-3195, 0-AR-3195 and -3195-001, April 14, 2000, 56 FLRA No. 31. PERFORMANCE MANAGEMENTOPM's Performance Management Clearinghouse. OPM's Performance Management Technical Assistance Center web pages will soon have a new feature: the Performance Management Clearinghouse. The primary purpose of the Clearinghouse is to help the Federal community share information about their performance management programs, processes, and practices with each other. As an automated tool, the Clearinghouse will let web users access the data easily at any time.The Clearinghouse will include the following information: - descriptions of effective formal and informal appraisal and award programs, processes, and practices, which could include: measurement techniques; team management techniques; feedback processes; inventive awards; effective evaluation methods; employee involvement practices; supervisory performance management training; or any other effective performance management efforts; - the name, phone number, and email address of a contact person in the organization featured; - description of the type and method of work done by the organization to help readers understand why the program, process, or practice is effective in that organization; - a summary of any formal or informal evaluation the organization conducted to determine the effectiveness of the program, process, or practice; - a description of the features about the program, process, or practice; and - lessons learned by the organization. OPM will be asking Federal organizations to submit descriptions of their effective performance management programs, processes, or practices for posting on the Clearinghouse. Organizations may send their submissions electronically, by fax, or by mail. To be posted, the submission must include all the information listed above. Before posting the data, OPM will inform the applicable agency headquarters human resources office of the submission to obtain its endorsement. OPM will not post anonymous submissions. Keep checking the Center's web pages at http://www.opm.gov/perform for more information and submission instructions. PERFORMANCE - NEGOTIABILITY OF VARIOUS PROPOSALS IN 56 FLRA NO. 36A proposal requiring management to explain the performance requirements for "each level of achievement" for each rating element is negotiable. FLRA held that the proposal did not mandate multiple rating levels, which was the basis of the agency's nonnegotiability claim. (Proposal #2).A requirement that the agency disclose all the standards that the employee will be rated on is negotiable. FLRA held that the proposal didn't mandate the use of critical and noncritical elements and didn't preclude management from making changes in work assignments (and therefore performance standards) during the rating period. (Proposal #5). A proposal preventing the agency from identifying and using additional elements affects the rights to direct employees and assign work. (The union made no claim that the proposal was one or more of the 7106(b) exceptions to those rights.) (Proposal #12). A proposal requiring that a supervisor other than the supervisor placing the employee on a performance improvement plan evaluate the employee's performance interferes with the right to assign work. No 7106(b) assertions were made by the union. (Proposal #8). A proposal requiring the first level supervisor to perform certain duties interferes with the right to assign work. No 7106(b) assertions were made by the union. (Proposal #21). National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Naval Submarine Support Facility, Groton, Connecticut, 0-NG-2467, April 27, 2000, 56 FLRA No. 36. REASONABLE ACCOMMODATION/MEDICAL ISSUESWhen an appellant requests information regarding possible vacancies through the discovery process, the agency is obligated to provide that information in order for the appellant to meet his or her burden of showing the existence of available vacancies. The appellant in this case was challenging the agency's action of placing her on enforced leave until such time as she provided medical information that it would be safe for her to return to work. The appellant alleged disability discrimination and, during the discovery process, requested a listing of available vacancies in the commuting area. The agency provided an incomplete list and the administrative judge (AJ) did not compel the agency's compliance. The Board remanded for full compliance with the discovery request in order for a determination to be made on the appellant's discrimination argument. The Board's analysis noted that the employee bears the burden of establishing that a vacancy exists and it would be unfair not to provide her with the information needed to meet that burden. It should be noted that the Board continues to restrict the search for available vacancies to the local commuting area despite Equal Employment Opportunity Commission (EEOC) guidance to the contrary. Agencies should note that the EEOC issued proposed regulations to remove the commuting area limitation from the search for potential vacancies in the reasonable accommodation process. Miller v. Postal Service, CH0752990342-I-1, March 21, 2000.RETALIATION FOR INFORMATIONAL PICKETINGThe employer committed ULPs when it ordered unit employees not to engage in informational picketing, and for placing employees in non-duty status, and suspending their security clearances in retaliation for participating in such picketing. Regarding the retaliatory termination of a union official, FLRA (Member Wasserman dissenting) held that it did not have jurisdiction to review the termination. Citing New Jersey National Guard, 677 F.2d 276, 282 (3rd Cir. 1982) and California National Guard v. FLRA, 697 F.2d 874, 879 (9th Cir. 1983), FLRA said that "section 709(e) [of the Technicians Act] broadly prohibits any final review of a technician's termination, other than by an adjutant general." FLRA found the one-and-a-half hour picketing in the parking lot was orderly, the technicians were off-duty and in their civilian clothes, and no one told them to stop picketing in the parking area. (The police, saying the employees couldn't picket on the access road itself for safety reasons, had gotten permission from Guard officials for the picketers to use the parking lot. The purpose of the picketing was to inform the public of what the union considered a hostile work environment--including refusal to abide by negotiated agreements.) FLRA rejected the agency's claim its actions were a military matter over which FLRA had no jurisdiction. Although FLRA has no jurisdiction over military matters, it does have jurisdiction over civilian matters--and the retaliation involved in this case involved civilian matters. The subject matter of the picketing (which emphasized three grievances relating to the civilian aspect of technician employment) was civilian as was the manner of picketing (the employees weren't on military or civilian duty and wore civilian clothing). 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.RETIREMENTThe Board was forced to remand several multi-party decisions to its regional offices for determinations of whether or not the agency properly denied the appellants' law enforcement officer (LEO) service credit for retirement. Despite the obvious consternation of Member Marshall (concurring opinion in Mosely, et al), the Board was bound by its previous case law. The Board has previously held that it has the authority to review these appeals of LEO service credit determinations by agencies (Dusenberry v. Department of Justice, 81 MSPR 12 (1999). However, employees whose basic pay is not subject to the higher retirement withholding rates of LEO positions must challenge the agency's determination within six months of entering the position or after any significant change to their position. If they failed to challenge the determination within the 6 month time frame, the determination is presumed to be correct. In 1998, the Board carved out an exception to the six month rule (Fitzgerald v. Department of Defense, 80 MSPR 1 (1998). The exception occurred when an employee could prove that he or she was actually unaware of his or her LEO status, and acted diligently to challenge the determination as soon as the employee became aware of the status. If this fact pattern could be proven, the Board would waive the 6 month limitation. In each of the cases decided here, the appellants testified, without contradiction, that they were unaware of their non-LEO status and acted diligently as soon as they became aware of it. Since the appellants' testimony was not contradicted by the agencies or found not credible by the administrative judge, the Board accepted it as preponderant evidence sufficient to meet the requirement of the exception. The cases were remanded for hearings. Burkett, Hanlon, Miles, Yakubowski v.Veterans Affairs, AT0842990008, AT0842990004, AT0842990003-I-1, AT0842981142-I-1, July 13, 2000 and Mosely, et al, v.Veterans Affairs, DA0842990318, DA0842990319, DA0842990320, DA0842990321, DA0842990322-I-1, July 14, 2000.The Board has changed the way it will analyze appeals of agency determinations to exclude employees from law enforcement officer (LEO) service credit for retirement purposes. In its new decision, the Board questioned the effectiveness of its previous policy established under Bremby v. Department of Navy, 81 MSPR 450 (1999). Under Bremby, even if the position required the incumbent to spend the majority of his/her time on non-LEO duties, (LEO duties being the investigation, apprehension and/or detention of criminals and/or suspected criminals) the Board would review the duties of the incumbent over a specific period of time and decide if his primary duties "involved" some LEO duties. If the finding was positive, then the employee would be granted LEO service credit for retirement. Under the new approach, the Board will first examine whether or not "the position was created for the purpose of investigation, apprehension, or detention,...." If the Board found that the agency had not intended for the position to operate in this way, the incumbent would not be entitled to LEO service credit. The Board went on to say that an appellant could still present evidence on the daily assignments and duties performed to argue for the service credit but that such evidence would no longer be looked at without the context of management's purpose for the job. Based on this new approach, the Board found that the appellants in this case were not entitled to LEO service credit and reversed the initial decisions. Watson, et al, v. Navy, DC0842990483-I-1, July 17, 2000. SECURITY CLEARANCESIn a case of first impression, the Court of Appeals for the Federal Circuit, rules that the Merit Systems Protection Board lacks jurisdiction to review an agency's security clearance determination when the employee claims that the determination and actions resulting from it were in reprisal for whistleblowing. After a through review of the legislative history of the Whistleblowers Protection Act and its amendments in 1994, the court concluded that Congress did not intend to give any more rights to whistleblowers than others. In this regard, the Supreme Court ruled in 1988 that the Board has no right to review agencies' security clearance determinations. In the current case, the court also clearly stated that the due process provisions provided in section 7513(d) of Title 5 of the United States Code do not apply to an agency's security clearance process. In conclusion, the court upheld the Board's approval of the agency's action indefinitely suspending the appellant from his GS-15 Foreign Affairs Officer position. Hesse v. State, Appeal No. 99-3387, (Fed. Cir., July 6, 2000).
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