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United States
Office of
Personnel Management |
New Developments in Employee
and Labor Relations |
March 2000 |
After the appellant's removal was reversed and he was reinstated, he filed petitions saying the agency had violated the Board's Order by finding him ineligible for leave under the Family and Medical Leave Act (FMLA) and then removing him for his absences. The agency argued that he was not eligible for FMLA leave, since he had not worked the required minimum of 1,250 hours during the 12 month period before the date the leave would begin. It also argued that: (1) the Board was not the proper forum for the FMLA claim; (2) the Board should not speculate about whether he would have worked during the period of the unwarranted personnel action; (3) the Back Pay Act is not concerned with statutory rights, such as those provided by FMLA; and (4) the Board is without authority to order the agency to waive the eligibility requirements of FMLA. (NOTE: the eligibility requirements cited are those in the Department of Labor's regulations for employees covered by Title I of FMLA.) The Board dismissed all of these arguments. It found it has jurisdiction to hear FMLA claims raised in a petition for enforcement, regardless of other complaint avenues that may exist. It found the Back Pay Act applicable to the appellant, and noted the provision in the Act saying the employee "for all purposes, is deemed to have performed service for the agency during that period [for which the employee received back pay]…" Since he was "deemed" to have worked, he did meet the eligibility requirements, and the fourth argument was moot. Since he was eligible for FMLA, the agency's removal action based on his absences was improper and merited reversal. Moore v. Postal Service, AT0752951174X-1 and AT0752980745-I-1, September 23, 1999.
The Board found that the appellant was entitled to have her appeal considered as an individual right of action (IRA) because she had made a protected disclosure, and claimed the denials of leave were improper personnel actions based on that disclosure. However, the majority found the agency's decisions about her leave had nothing to do with her protected disclosure. On the contrary, she had simply never submitted administratively acceptable evidence to support the leave. Quoting from the two doctors' letters she had submitted, the Board found "neither…is specific as to the appellant's illness and neither can be read to constitute medical excuses showing that she was ill on days she was absent." The Board specifically rejected one doctor's statement that she would "be required to take leave as necessary" as unacceptable. (Then) Vice Chair Slavet dissented because she found evidence that the agency charged several weeks of AWOL before letting the appellant know that the doctors' letters she had submitted were inadequate. This in her view would have required a hearing to explore the agency's true motivation for the denials. Lawley v. Treasury, DE315H980162-I-1, October 22, 1999.
The Merit Systems Protection Board's majority let stand an administrative judge's decision to mitigate a removal to a 60-day suspension after one of two charges was not sustained. In a dissenting opinion, however, Vice Chair Slavet noted that the sustained charge involved the shoving of a subordinate employee by the supervisor appellant and commented that "such misconduct directed toward a subordinate employee goes to the appellant's supervisory status" and thus warranted a demotion to a non-supervisory position. Econ v. United States Postal Service, AT0752981097-I-1, January 24, 2000.
In this case, the agency removed the appellant from his grocery manager position but a Merit Systems Protection Board judge mitigated that penalty to demotion to the "next lower-graded nonmanagerial position." When the appellant challenged the level at which he was demoted, the Board used the case to explain how penalties will be set in such cases. The Board held that "where, as here, the Board orders an agency to demote a managerial employee to a lower-graded nonmanagerial position, without specifying that the demotion should be accomplished with the least reduction in pay, the agency must set the employee's pay at the step of the lower-graded position that results in the least reduction in pay consistent with the agency's pay-setting regulations regarding demotions for cause. If the agency has no pay-setting regulations pertaining to demotions for cause, it must place the employee in the step of the lower-graded position that results in the least reduction in pay." Because the record did not show whether the agency had such pay-setting regulations, the Board remanded the case to one of its regional offices to complete the record on this issue. Stablile v. Department of Defense, NY0752950482-X-2, February 18, 2000.
The Authority, Member Wasserman dissenting (because he had done so in the lead decision on the matter), held that a provision providing official time to lobby Congress (a provision that had been disapproved by the agency head), violated the Department of Defense Appropriations Act. In an interesting passage, FLRA said the following:
The Union essentially argues that there are only two categories of employee time: duty time and non-duty time. This is mistaken. Section 7131 of the statute creates a distinct third category of time: official time, when an employee is performing representational functions for the union while receiving compensation from the agency. Unlike regular duty time, an employee's activities on official time are not directed by the agency. Unlike annual leave, an employee's activities on official time are restricted by the Statute. In this connection, we note that both official time and duty time -- unlike non-duty time such as annual leave -- shall be considered hours of work. 5 C.F.R. § 551.424(b).
National Association of Civilian Technicians, Old Hickory Chapter and North Carolina National Guard, 0-47-2457, September 23, 1999, 55 FLRA No. 139.
Strategic Compensation Conference 2000 — A conference entitled Strategic Compensation: Choosing the Best Course for Today and Tomorrow, sponsored by the U.S. Office of Personnel Management, will be held August 28-29, 2000, at the Washington Hilton and Towers in Washington, DC (4 blocks from the Dupont Circle Metro Station). This conference will provide Federal Managers and Human Resources practitioners with updates, forecasts, and practical information about the Federal compensation environment — pay and leave administration, performance management, position classification, and efforts to improve the compensation tools available to support agency missions. Post-Conference Workshops will be given on August 30, 2000.
The Center's boiler room operates around-the-clock, seven days a week, in three shifts. Boiler room operators (five in number) historically worked all the shifts on a rotating basis. Based on medical advice concerning one of the operators (who suffered from diabetes and sleep apnea) the agency removed the employee from the shift rotation and placed him on the day shift permanently. This resulted in the other operators having to work evening and night shifts more frequently. The issue was grieved and referred to arbitration where the arbitrator sustained the grievance alleging that the assignment was not an accommodation under the Rehabilitation Act and ordered restoration of the rotational system.
FLRA turned down the agency's exceptions to the award. The arbitrator didn't exceed her authority (substantial deference is accorded an arbitrator's interpretation of a stipulated issue when it isn't implausible, unfounded, or irrational). Also rejected were the agency's essence and fair hearing (liberal admission of testimony and evidence by an arbitrator is a permissible practice), and law (e.g., the Rehabilitation Act) exceptions. Regarding the Rehabilitation Act, FLRA said the following:
The well-settled rule in cases arising under the Rehabilitation Act is that where there is a conflict between the terms of a collective bargaining agreement and an employer's obligation to reasonably accommodate a handicapped employee the agreement takes precedence. By enforcing unit employees' right under the collective bargaining agreement to a rotating shift schedule, notwithstanding the Agency's claim that it is obligated to accommodate Mr. R's handicapping condition by permanently assigning him to the day shift, the Arbitrator's award properly enforced the parties' agreement and, therefore, did not violate the Rehabilitation Act.
Nor did the award violate management's rights. The shift rotating requirement is a (b)(2) procedure. The Authority has consistently held that proposals or provisions that prescribe the manner in which equally qualified employees will be assigned to shifts constitute procedures under section 7106(b)(2). The award merely enforced a (b)(2) procedure that had been an established practice.
Nor did the award violate 29 CFR 1614.203(c). Citing Hurley-Bardige v. Brown, 900 F. Supp. 567, 571 (D.C. Mass. 1995), FLRA noted that an employer's obligation to accommodate is not absolute. An agency, said FLRA, is not required to provide reasonable accommodation where such accommodation is precluded by a collective bargaining agreement. Department of Veterans Affairs, Medical and Regional Center, Togus, Maine and American Federation of Government Employees, Local 2610, 0-AR-3090, December 29, 1999, 55 FLRA No. 192.
The appellant suffered an off-the-job injury and requested leave. She appealed to the Board, arguing that the agency constructively suspended her when it failed to provide her with light duty assignments during her leave. The full Board reversed the administrative judge's finding that the agency had a formal policy of providing light duty and had, therefore, constructively suspended the appellant when it did not provide her with such an assignment. The Board noted that the judge accepted testimony that the agency had accommodated other employees with light duty assignments. This was not sufficient to establish a formal policy as required by Board precedent (Baker v. U.S. Postal Service, 71 MSPR 680 (1996). Here, the Board found that no evidence of an agency policy, contractual agreement, or internal regulation that required the agency to provide light duty when an employee is not able to carry out all the duties of the position due to medical restrictions.
Further, the administrative judge found that the appellant did not have an impairment that limited a major life activity but the agency perceived her as having one and, therefore, discriminated against her on that basis. The full Board found that the evidence clearly indicated that the appellant did suffer from a medical condition that impaired a major life activity. Also, the Board held that the agency was not obligated to permanently assign the appellant to a collection of light duty assignments that did not constitute a real job. Therefore, since she was not able to perform the essential functions of her job, with or without accommodation, the agency did violate the Rehabilitation Act. McFadden v. Defense, NY0752960419-I-1, December 21, 1999.
The appellant was demoted based on medical inability to perform her position. The agency asserted that the appellant was unable to conduct face-to-face interviews with the public based on her medical condition of post-traumatic stress disorder and depression. The appellant grieved the demotion and an arbitrator heard the grievance. The arbitrator found that the appellant did not suffer from an impairment that limited a major life activity but ruled that, assuming she was disabled under the law, appellant was unable to carry out an essential function of her position with or without accommodation. Because of the allegation of discrimination, the appellant asked for Board review of the arbitration award. The appellant argued that the arbitrator erred in considering the impact of medication on her medical condition and that the arbitrator failed to force the agency to prove that conducting interviews was an essential function of the position. The Board found that the arbitrator's consideration of the impact of medication on the appellant's condition was consistent with the Supreme Court's holding in Sutton v. United Air Lines, Inc., 119 S.Ct. 2139 (1999). Therefore, the appellant did not have standing as individual with a disability. However, the Board addressed the appellant's second argument and found that it could not find error in the arbitrator's analysis of interviewing as an essential function since the courts were split on who should carry the burden of establishing what constitutes an essential function in a position. With no definitive guidance from EEOC, the Board could not find the arbitrator to have committed a legal error. Shestak v. Social Security Administration, CB7121990057-V-1, November 1, 1999.
The appellant challenged his removal for disrespectful and disorderly conduct and alleged that the agency failed to reasonably accommodate his medical condition of bi-polar disorder. The administrative judge sustained the charges and then assessed the affirmative defense raised by the appellant. The judge found that the appellant was a disabled individual but was not a qualified disabled person and did not articulate any reasonable accommodation that would allow him to perform. Further, the judge found no basis for holding that the appellant's mental condition caused the misconduct. On appeal, the full Board upheld the initial decision but reopened the case to correct the judge's analysis of the appellant's disability discrimination argument. The Board noted that the appellant never contended that he was unable to function as a teacher. In fact, his performance indicated that he was able to teach even after being diagnosed with bi-polar disorder. The appellant argued that he should be allowed to continue working in Germany (the agency reassigned him to Japan) so that he would not disrupt his medical treatment or his family life. Additionally, once he reported to Japan and experienced problems, he requested a stress free work environment that the judge interpreted to mean that he wanted to work for a different principal. The inability to work in a specific location or for a specific individual does not reach the level of a disability under the Rehabilitation Act and the Board found that the appellant was not a disabled individual. Further, the Board noted that even if the appellant had been considered disabled under the law, such a disability would not have
excused his misconduct since there was ample evidence that the agency would have disciplined any employee for the same type of behavior. Fitzgerald v. Defense, SE0752980221-I-1, March 17, 2000.
When the union was notified that, due to budgetary changes, three encumbered positions were to be reassigned from the Norfolk to the Oceana commissary, the union made 5 proposals, two of which were (b)(2) procedural proposals and three of which were (b)(1) elective subjects of bargaining.
Proposals 1 and 5, intended to delay implementation of disputed assignments until completion of bargaining, are negotiable (b)(2) procedures. The Authority has held that... a proposal that requires only that an agency delay the exercise of a management right pending the completion of bargaining constitutes a negotiable procedure . . . . 48 FLRA 232, 240-41 (1993), 53 FLRA 403, 418 (1997), and 36 FLRA 130, 131-34 (1990) cited.
Proposals 2, 3 and 4, requiring joint determination by the union and the agency on how to allocate staff in order to meet a budget requirement (and requiring the use of impasse procedures if agreement can't be reached) deal with (b)(1) staffing patterns and are therefore elective subjects of bargaining. [T]he disputed proposals . . . require that the parties either agree on the allocation of staff or utilize an impasse process for resolving disputes over the allocation of staff. Thus, in effect these proposals require the Agency to bargain over the allocation of staff. National Association of Government Employees, Local R4-45 and Department of Defense, Defense Commissary Agency, Eastern Division, 0-NG-2446, September 30, 1999, 55 FLRA No. 161.
Created 27 February 2001
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