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STAYSActing Chairman Beth S. Slavet of the Merit Systems Protection Board grants a request by the Office of Special Counsel for an indefinite stay of the separation of a probationer until the Special Counsel's request for corrective action against the agency is adjudicated by the Board. The Special Counsel is arguing that the employee's separation was in reprisal for a grievance filed by the employee. The Board also orders that the employee be returned to active duty during the stay (the agency had maintained the employee in an administrative leave status, claiming among other things, that he is a "temperamental bully"). Special Counsel v. Navy, CB1208990062-U-7, March 14, 2000.SUCCESSORSHIP ... WHEN NO ELECTION IS NEEDEDThis case involves the issue of whether an election is necessary between two groups of employees, represented by different unions, who have been assigned to a newly created appropriate unit where one union claims to represent a sufficiently predominant number of employees to avoid an election. FLRA adopts the following rule:[W]e conclude that, absent special circumstances, not present here, a union that represents more than 70 percent of the employees in a newly combined unit formerly represented by two or more unions is sufficiently predominant to render an election unnecessary because such an election would be a useless exercise. Department of the Army, U.S. Army Aviation Missile Command, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, AFL-CIO and National Federation of Federal Employees, Local 405, AT-RP-80005 and -80007, February 29, 2000, 56 FLRA No. 14. WHISTLEBLOWINGThe Merit Systems Protection Board determines that the GS-15 appellant in this case had a "personnel action" within the meaning of the Whistleblower Protection Act taken against him when it assigned him to a workplace cubicle (his assigned duties also changed). The Board noted the fact that a whistleblower may allege violations of law to "deflect blame" from himself or herself does not make the disclosure unprotected. The Board concluded that other disclosures about the appellant's supervisor were not protected because the disclosures were not made to an official with authority to correct the alleged fraudulent or illegal activity. Finally, the Board concluded that the appellant's disclosures about the activities of a former employee were not protected because they did not involve "government personnel." The Board remanded the case back to one of its regional office for adjudication. Coons v. Treasury, SF12219I90385-W-1, April 11, 2000.A supervisor may not insulate himself against allegations of whistleblower reprisal by simply referring a disclosure alleging abuse of authority by that supervisor to a higher level official according to the Merit Systems Protection Board. In this case, the employee complained to the first level supervisor, and second level supervisor, and a higher official about "threats, swearing, [and] physical acts of aggression" by the first level supervisor. The Board also noted that such allegations may fall within the definition of "abuse of authority," a definition without a de minimis standard. The Board remanded the matter to one of its regional offices. Murphy v. Treasury, BN1221990196-W-1, June 7, 2000. An individual does not lose his standing to claim a constructive removal from an agency when he transfers to a second agency without a break in service. In this case, the appellant argued that he had to find a new job because "various acts of retaliation ultimately rendered continued employment with the agency impossible." The appellant claimed that his disclosure of an alleged violation of the Anti-Deficiency Act was protected whistleblowing and that actions taken against him, including his transfer to another agency, were in reprisal for this disclosure. The Board remanded the case to one of its regional offices for further consideration. In doing so, the Board noted that "whether an individual's whistleblowing contributed to a personnel action is a merits issue that cannot be disposed of under the guise of a jurisdictional dismissal [as had been done by the Board's administrative judge]." Roach v. Army, DC1221970251-B-1, April 27, 2000. CURRENT INTERVENTIONSListed below are decisions currently pending before a third-party and in which the Office of Personnel Management has intervened, sought reconsideration or judicial review, or filed an amicus curiae brief. Decisions received, as well as other developments since the last report are highlighted in bold. Additional information on each case can be obtained from the Office of Workforce Relations, Employee Relations Branch at er@opm.gov, or (202) 606-2920.1. Von Zemensky v. Department of Veterans Affairs, PH0351980078-I-1, April 28, 1999. On July 19, 1999, OPM intervened in a case involving the rights of Veterans' Affairs health care professionals hired under title 38 who are separated due to reductions in staff levels and/or resources. The initial decision which prompted OPM's intervention held that the agency's termination of the appellant's services due to a reduction in resources was invalid because the agency failed to provide the employee with reduction in force procedures established under 5 USC §§3501-04 and 5 CFR part 351. This decision was issued following a remand from the full Board in February 1999 in which the Board held, in response to an interlocutory appeal, that title 38 employees were entitled to reduction in force procedures and rights laid out under title 5. OPM finds no reference within the reduction in force statute or the implementing regulations that would provide coverage for title 38 employees. Congress excluded those employees from the coverage of most of the personnel provisions that cover other employees, including RIF procedures and protections, and the current decision creates an erroneous interpretation of statute and OPM regulations. On April 18, 2000, the Board issued a decision on OPM's intervention. However, the two members could not reach agreement and the February 2, 1999 interlocutory opinion became the final opinion of the Board. On June 19, 2000, the Department of Justice filed a petition for review on OPM's behalf before the U.S. Court of Appeals for the Federal Circuit. Contact: er@opm.gov, or (202) 606-2920. 2. Calvin D. Uhlig v. Department of Justice, MSPB Docket No. SE0752950241-A-2, November 24, 1999. This case is one of those stayed a few years ago while the Supreme Court decided in Lachance v. Erickson that Federal agencies could discipline employees for misconduct and also for lying about the misconduct in the course of an agency investigation about the misconduct. In 1995, the appellant in Uhlig was removed from his Special Agent's position at the FBI for misuse of a vehicle and lying in an inquiry about the misuse. A Merit Systems Protection Board administrative judge upheld the vehicle misuse charge but dismissed the lying charge under Board case law later overturned by the Supreme Court. The case law had said that agencies could not charge an employee both with misconduct and lying about the misconduct. The agency went ahead with the lying charge because it knew that the Office of Personnel Management (the Office) was in the process of challenging the Board's position on this issue. The judge mitigated the removal to a 30-day suspension. The judge's decision was upheld by the full Board. Because the appellant retired before the Supreme Court's decision, the Board decided last July that the case was moot and that the appellant could request attorney's fees. As a result, the judge had never ruled on the lying charge and decided the attorney's fees only on the sustained charge of vehicle misuse and its mitigated penalty. The judge determined that the agency "should have known" it couldn't prevail on the lying charge because of the Board case law in effect at the time it removed the appellant. The judge awarded fees of more than $60,000. The agency has filed a petition for review with the full Board challenging the award of attorney's fees. In addition, the Office has filed a petition for review arguing that the appellant was not the "prevailing party" for purposes of being eligible for attorney's fees. The Office also argued that the judge's decision to award fees in the "interests of justice" is in error and violates law and Board precedent. Contact: er@opm.gov, or (202) 606-2920. 3. Augustine v. Department of Veterans Affairs, SF3443000085-I-1, March 14, 2000. On June 1, 2000, OPM intervened in this case to correct the administrative judge's (AJ's) misapplication of the Veterans Employment Opportunities Act (VEOA). The AJ erroneously found that the agency violated the appellant's veterans preference rights when it selected individuals under the Outstanding Scholar appointing authority while not selecting her. He added to this error by ordering her retroactive appointment. All of the appointing authorities under which the agency considered candidates and made selections were valid, separate authorities which allow for appointment without competition. The appellant herself was considered under two such authorities: the authority for 30% or more disabled veterans, and the authority for Veterans Readjustment Act (VRA) eligibles. An agency's right to hire noncompetitively under these authorities is founded in law, executive order, or, in the case of the Outstanding Scholar authority, court order, and VEOA provides no basis for the Board to dispute or limit the agency's discretion. In fact, when the appellant filed her initial complaint with the Department of Labor (DOL), that agency found no violation of her rights under the law. The AJ's remedy is also contrary to law, since the Board has previously acknowledged it lacks authority to order appointment and back pay to an applicant for employment who has not been duly appointed by an authorized appointing official. Contact: er@opm.gov, or (202) 606-2920. 4. Max T. Mattern v. U.S. Department of Treasury, DC-0752-98-0264-X-1, March 28, 2000 On July 10, 2000, OPM filed a request for reconsideration to the full Board asking the Board to review its final opinion and order in a back pay compliance case. The appellant in the case, a Secret Service Police Officer, was removed for slapping a juvenile in his custody. The action was reversed and the agency was ordered to restore the employee to duty and provide back pay and benefits. The agency complied but the appellant filed an appeal asking the Board to enlarge its back pay order. The appellant alleged that the agency failed to provide back pay for lost wages during the period of restricted duty prior to removal. The agency had placed the employee on restricted duty while investigating the allegations of misconduct. While in restricted duty, the employee was not allowed to work overtime or to work nights. The administrative judge agreed with the appellant and the full Board sustained the initial decision that ordered the agency to provide back pay for the period of time before the adverse action. OPM challenged the Board's assertion that it could assert jurisdiction over a period of time well before the adverse action occurred. Further, OPM argued that such a decision violated the Back Pay Act in that the Board failed to establish that the placement of an employee in restricted status was an unwarranted personnel action. Without such an action, back pay is not authorized under the Act. Contact: er@opm.gov, or (202) 606-2920. 5. Santella/Jech v. Office of Special Counsel/Internal Revenue Service, CB1215910007-A-1 and CB1215910008-A-1, May 9, 2000. On June 13, OPM sought reconsideration of this decision involving an award of attorney fees against the Office of Special Counsel (OSC). This decision involves the first ever award of attorney fees against OSC. This award was based on the Board's conclusion that since the charges of whistleblower reprisal, which the OSC brought against two IRS employees, were not sustained , the two employees should be considered "substantially innocent," and therefore entitled to an award of fees. OPM believes the Board's award fails to recognize the unique role given to the OSC by Congress to prosecute individuals who retaliate against whistleblowers. That unique role requires that a different standard for fee awards be applied to situations when the Special Counsel acts in good faith but does not prevail. OSC should not pay fees unless its action was frivolous, unreasonable, or without foundation. OPM will argue that the Board's decision severely impacts the ability of the OSC to carry out the intent of Congress to vigorously enforce the Whistleblower Protection Act. TOPICAL OVERVIEW: OPM Director's PILLAR AwardOPM Director Janice R. Lachance presented the first annual OPM Director's PILLAR Awards on August 28 at OPM's Strategic Compensation Conference in Washington, DC.Award recipients were: Food and Nutrition Service, Southeast Regional Office, for its performance management program, part of its Total Quality Management Initiative, which closely aligns employee performance and development with organizational goals and has helped the Southeast Regional Office achieve cost savings of more than $44.2 million. Department of Veterans Affairs, VA Healthcare Network Upstate New York, for its goalsharing program, an innovative approach to creating a clear "line of sight" between employees and organizational goals which has dramatically improved the organization's performance. Honorable Mention recipients were: Tobyhanna Army Depot, for its Rewarding the Workforce Award Program. Under this program, all employees share equally in a monetary award based on performance results attained through business-focused cooperation and teamwork. John F. Kennedy Space Center, for its Goal Performance Evaluation System, which is a web-based software application used to communicate organizational objectives throughout the organization that has resulted in a more tightly focused and aligned organization. Federal Aviation Administration Logistics Center (FAALC), Oklahoma City, for its performance management practices, particularly establishing and implementing individual performance plans linked directly to the FAALC Strategic Plan. The OPM Director's Pillar Award is an honorary award established this year to recognize and publicize effective performance management practices that support alignment of employee performance management practices with organizational strategic goals as well as results-oriented and customer-focused performance. The name of the award stands for Performance, Incentives, and Leadership Linked to Achieve Results. The pillar represents effective performance management because it is the foundation that supports a structure, just as performance management is the foundation that supports good management.
Questions or comments may be mailed to the Employee Relations Branch, U.S.
Office of Personnel Management, Room 7425, Theodore Roosevelt Building, 1900 E Street,
NW., Washington, DC 20415-2000. You may call us at (202) 606-2920; fax(202)
606-0967; or email er@opm.gov.
Created 27 February 2001 |