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INTRODUCTIONNew Developments in Employee and Labor Relations is designed to identify important new case law, policies, and initiatives in Federal employee and labor relations. The case descriptions are necessarily concise and are only intended to provide enough detail to allow readers to identify cases of potential interest. These descriptions should not be interpreted as the Office of Personnel Management's endorsement of the case law, and some of the holdings raised in the descriptions may be inconsistent with the Office of Personnel Management's policy and subject to continuing litigation. Readers are also reminded that in some instances, the Office of Personnel Management's policy may be modified by individual agency regulations and applicable collective bargaining agreements. In such cases, consultation with agency headquarters staff is essential. Additional information on the Office of Personnel Management's initiatives and policies can be obtained by email at er@opm.gov or by telephone (202) 606-2920.ADMINISTRATIVE LAW JUDGEThe Board's Chief Administrative Law Judge found for the appellant based on the agency's interference with the appellant's qualified decisional independence. The Board's CALJ found the appellant was constructively removed when the agency's reviewed and evaluated the appellant's decisions in several cases, imposing pressure on the appellant to adjudicate the presented claims and intervening to change the appellant's decision. Tunik v. Social Security Administration, CB-7521-00-0020-T-1, December 14, 2000.BACK PAYThe appellant claimed the agency had not properly paid his back pay, and the administrative judge agreed. The agency submitted its calculations supporting what it had already paid and what it determined the appellant was still owed, based on the earnings of a comparison employee. The appellant objected to the use of the comparison employee to compute the amount owed, and the agency said it was waiting for the Board to decide before it issued a check. The Board briskly informed the agency it had "mistaken the Board's role in this matter." The agency should have promptly paid the amount it found it owed, without waiting for the Board. The Board had no problem with the use of a comparison employee, since the agency had chosen someone whose earnings were historically similar. However, it was error to treat the appellant as if he had taken the same leave as the comparison employee during the period at issue. Cox v. Postal Service, PH-0752-98-0134-X-1, September 25, 2000.On May 5, 1999, the appellant and the agency entered into an agreement settling appellant's removal from Federal service. The appellant was to be reinstated in June 1999 as a correction officer. The appellant was also to receive back pay. In the time between his removal and the settlement, the appellant took a part-time job as a limo driver. 5 UCS 5596 (b)(1)(A)(i) entitles an employee who was removed from Federal service and who is being reinstated to amounts equal to the amount the employee would have received if not removed minus "any amounts earned by the employee through other employment during that period." The appellant argued and the MSPB AJ agreed that the monies received by the appellant from his part-time job constituted "moonlighting" pay (which is not deducted from any backpay award) rather than replacement pay (which would be deducted from any backpay award). The AJ made this finding notwithstanding the fact that prior to his removal, the appellant had been ordered by his supervisors to cease all moonlighting activities, and the fact that the post removal part-time job was different from any part-time employment he had engaged in prior to his removal. Weber v. Justice, NY-0752-98-0020-X-1, October 17, 2000. (See also Weber v. Justice under Settlement/Last Chance Agreements). BARGAINING MISCONDUCT ... NOT RESPONDING TO BARGAINING REQUESTThe agency had notified the union of proposed changes in its body search policy and had met with it to discuss those changes. When it sent the union a revised draft of the policy, the union, on November 18, 1996, sent the agency its revised proposals and asked that the revised policy be held in abeyance pending completion of bargaining. The agency didn't respond to the union letter.On May 28, 1997, the agency sent a copy of the final body search policy to all its regional and district directors. On September 12, 1997, it sent a letter to the union, in which it said that it inadvertently sent the final policy to field offices before having notified the union of the agency's intent to implement the policy; but inasmuch as the union did not make any negotiable I&I proposals in its November 18, 1996, bargaining request, the agency was free to implement the policy. ULP proceedings followed and exceptions were filed to the ALJ's decision. The Authority rejected, among other things, the agency's claim that its body search policy is outside the duty to bargain because it dealt with a matter specifically provided for by law. The Federal Labor Relations Authority noted that mere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment. A matter is "specifically provided for by law" within the meaning of section 7103(a)(14)(C), "only to the extent that the governing statute leaves no discretion to the agency. . . . When a statute provides an agency with discretion over a matter, it is not excepted from the definition of conditions of employment, to the extent of the agency's discretion." The Authority also rejected the agency's contention that it was free to implement the policy because the union's proposals weren't negotiable. Before implementing a change in conditions of employment, the agency must give the union notice of the proposed change and afford it an opportunity to bargain. "This obligation," the Federal Labor Relations Authority continued, "also includes, 'at a minimum, the requirement that a party respond to a bargaining request.' [McClellan AFB Exchange, 35 FLRA 764, 769 (1990).] When an agency does not respond to a union's request to bargain, it is not necessary for the Authority to resolve the negotiability of the union's proposals in order to find that unilateral implementation of a change in working conditions violates the Statute." The Federal Labor Relations Authority further noted that, in unilateral change cases, the General Counsel doesn't have the burden of proving that a union submitted negotiable proposals. "In such cases, the agency must demonstrate, as a threshold requirement, that it responded to the union's request that the agency bargain over the union's proposals." Here, the agency didn't respond to the union's November 18, 1996, bargaining request by contending the proposals were nonnegotiable; it instead implemented the changes without responding to the proposals at all, thus not satisfying the aforementioned threshold requirement. In this case, it was incumbent upon the Respondent to inform the Union of its view that negotiations had been concluded, along with the basis for that view. The Union could have then responded with revised proposals, a request for assistance from FMCS and FSIP, a negotiability appeal, or a pre-implementation Unfair Labor Practice charge, if necessary. The bargaining process requires on-going communication, so that the parties may avail themselves of appropriate options, ultimately leading to lawful implementation. [Emphasis added.] The Federal Labor Relations Authority accordingly found that the agency violated the Statute "without regard to whether the proposals were negotiable." Immigration and Naturalization Service, WA-CA-80124, May 5, 2000, 56 FLRA No. 50. CHARGES AND PENALTIESThe agency filed a petition for review based on a Merit Systems Protection Board administrative judge's definition of lack of candor. The Board acknowledged the breadth of a lack of candor charge, finding that lack of candor encompassed a failure to answer fully and truthfully the questions posed during an administrative inquiry involving the appellant. The Board found in the appellant's April written statement he never expressed any uncertainty as to the number of times he transported unauthorized persons in his government owned vehicle (the essence of the charge) and appellant's August written statement "I signed my [April] statement even though it was not completely accurate." The Board sustained the charge but mitigated the appellant's removal to a 120-day suspension. Ludlum v. Justice, NY0752990088-I-1, October 5, 2000. (See also Ludlum v. Justice under Jurisdiction and Procedures.)The Merit Systems Protection Board upheld an arbitrator's determination that the penalty of removal was appropriate for false information provided by the grievant/appellant on a Standard Form-86, Questionnaire for National Security Position (he had been arrested for possession of marijuana but stated on the form he had not been charged with an offense related to alcohol or drugs). The Board also determined that the agency had not erred when it considered a previous suspension because the notice of proposed removal stated that the "appellant's employment record" would be considered and the employee had specifically mentioned the suspension in his reply to the proposal. In supporting the removal, the Board noted that employee's position of Immigration Inspector had law enforcement responsibilities and that he had lied about "the same type of criminal activity involving illegal drugs that his agency attempts to interdict." Jones v. Justice, CB721000017-V-1, October 10, 2000. The Court of Appeals for the Federal Circuit approves of Merit Systems Protection Board's decision to uphold the agency's removal of the appellant for "improper personal conduct having an adverse effect on the efficiency of the service" (adulterous relationship). The court agreed with the Board that there was a nexus between his conduct and the efficiency of the service because he worked as program manager for the Morale, Welfare, and Recreation Department of his agency. In short, he had responsibility for providing support to Marine families, including the families of Marines deployed overseas. His relationship was with the wife of a Marine so deployed. The court noted that the misconduct was "private in nature" and "did not affect [the appellant's] official responsibilities in any direct and obvious way." Nevertheless, the court concluded that the appellant's misconduct was inconsistent with his agency's mission and undermined confidence in the appellant by his agency. In a dissenting opinion, Judge Linn commented that the appellant "has become subject to the moral judgments of his employer" and concluded that the majority "grants virtually unbridled discretion to management, allowing it to remove an employee based on disapproval of that employee's off-duty behavior . . ." Brown v. Navy, United States Court of Appeals for the Federal Circuit. Appeal No. 00-3003 (Fed. Cir., Oct. 20, 2000). (See also Brown v. Navy under Jurisdiction and Procedures.) CONTENT AND USE OF WORK QUALITY STANDARDS ... PERFORMANCE-BASED ACTIONS ... INCORPORATING AGENCY POLICIES INVOLVING THE EXERCISE OF MANAGEMENT'S RIGHTS INTO A CONTRACTThe Federal Labor Relations Authority found two proposals relating to the content and use of work quality standards to be nonnegotiable.Proposal #1, which would have precluded the agency from taking disciplinary or performance-based actions based on assessments of performance under the agency's Quality Assessment Program (QAAP), is nonnegotiable because it interferes with the right to discipline. The Federal Labor Relations Authority's conclusion was unaffected by the union's claim that the quality standards under the QAAP aren't performance standards. Even if it were agency policy not to take performance-based actions because the AQLs (acceptable quality levels) didn't constitute performance standards under chapter 43, "the effect of the preclusion of performance-based discipline would be to incorporate that policy into the parties agreement" and would constitute an independent contractual limitation on the right to discipline. [B]y incorporating the Agency's current policy against performance based disciplinary actions under chapter 43 into the parties' agreement, the proposal would prevent the Agency from taking such disciplinary actions if it decided to use the AQLs as performance standards under chapter 43. Accordingly, the proposal . . . affects management's right to discipline employees . . . . The first two sentences of Proposal #2, which would require the agency to negotiate AQLs whenever they are changed, are nonnegotiable. "Proposals that require management to negotiate the substance of the criteria that it uses to assess employees' performance of their duties affect management's rights to direct employees and assign work. The Federal Labor Relations Authority refused to address the union's section 7106(b)(3) appropriate arrangement claims (a proposal interfering with a management right can nonetheless be negotiable if it constitutes an "appropriate arrangement") because the union didn't satisfy the requirements of 5 CFR 2424.25(c)(1), which requires the union to supply arguments and authorities supporting such a bald claim. "Because the Union in this case has provided none of the specified information, we will not address its claim." American Federation of Government Employees, Local 1709 and U. S. Department of the Air Force, Dover Air Force Base, Dover, Delaware, 0-NG-2523, August 11, 2523, 56 FLRA No. 86. DIRECTED PROMOTION ... BEP TEST ... FAIRNESS AS AN APPROPRIATE ARRANGEMENTThe Federal Labor Relations Authority turned down agency exceptions to an award in which the arbitrator, finding that the agency violated a contract provision requiring it to treat employees fairly and equitably when it didn't include the grievant among the selectees for 16 vacancies, ordered the agency to promote the grievant retroactively and make him whole. (The arbitrator found, among other things, that four of the five reasons the agency gave for not selecting the grievant were not supported by the evidence.)Since the award affected management's right to select, FLRA applied the BEP test. (See writeup of 56 FLRA No. 67 in this issue of New Developments.) Prong I was satisfied because the award was a remedy for a violation of a contract provision that constituted a section 7106(b)(3) appropriate arrangement. The Authority said the following about contract provisions requiring the agency to be "fair and equitable": The Authority has addressed requirements that an agency take various actions in a 'fair and equitable' or similar manner and, as relevant here, has concluded that such requirement constitutes an appropriate arrangement under section 7106(b)(3)." 48 FLRA 232, 237 cited.) FLRA also found that prong II of the BEP test was satisfied: i.e., the award properly reconstructed what the agency would have done if it had not violated the agreement requirement. Other agency exceptions to the award also were rejected. U. S. Department of Veterans Affairs, Veterans Integrated Service Network 13 and American Federation of Government Employees, Local 390, 0-AR-3272, September 15, 2000, 56 FLRA No. 104.
Created 27 February 2001 |