INTRODUCTION

A PAST PRACTICE AS A (b)(3) APPROPRIATE ARRANGEMENT

• The FLRA turned down agency exceptions to an award in which the arbitrator held that the agency violated the collective bargaining agreement when it unilaterally changed an established past practice under which union representatives were members of panels involved in rating, ranking, and interviewing employees for agency positions. Although union representation on such panels affects management's rights in the deliberative process of selection, the past practice at issue here is enforceable as a 7106(b)(3) appropriate arrangement. The Arbitrator in this case enforced a prophylactic measure designed to prevent employees from being harmed by unfair or inaccurate ratings. Such measures come within the purview of section 7106(b)(3). The FLRA, distinguishing between the 7106(b)(3) excessive interference balancing test for bargaining proposals affecting management's rights and the 7106(b)(3) abrogation test applied to arbitration awards affecting management's rights, held that the award did not abrogate those rights. Federal Aviation Administration and Professional Airways Systems Specialists, 0-AR-3142, January 14, 2000, 55 FLRA No. 198.
  
  

ATTORNEY FEES

• After the administrative judge mitigated a removal action to a 90-day suspension, the appellant filed a motion for attorney fees in the amount of $212,220. The administrative judge denied the motion, but the full Board, in Gensburg v. Veterans Affairs, 80 M.S.P.R. 187 (1998), remanded the appeal, finding that fees were warranted in the interest of justice on the ground that the agency's action was clearly without merit. On remand, the administrative judge awarded fees in the amount of $70,737. The appellant again petitioned for review, but the full Board agreed with the administrative judge that $70,737 was reasonable. It found that the appellant did not show that the administrative judge was biased, or that she erred in finding that the case was routine, or that she erred in reducing the hours claimed in the fee motion. The Board also found that the administrative judge's decision not to award fees to the appellant's non-attorney representative was proper. This decision provides a good review of the case law on each of the above issues. Gensburg v. Department of Veterans Affairs, SF0752970022-B-1, February 23, 2000.
  
  

BACK PAY

• The initial decision mitigated the appellant's removal to a 14-day suspension, and ordered the agency to provide interim relief and back pay. The agency argued she was not eligible for either one, since she was on Workers' Compensation rolls at all times since her removal. The Board agreed as to interim relief, citing Davis v. Justice, 61 M.S.P.R. 92, aff'd, 43 F.3d 1485 (Fed. Cir. 1994) (Table). However, as to back pay, the Board directed the agency to follow Special Counsel v. Veterans Affairs, 81 M.S.P.R. 601 (1999), in which it found "an appellant is entitled to that pay she would have received beyond the OWCP payments actually made." Brownlow v. Treasury, AT0752990007-I-1, March 6, 2000.

• See also Moore v. Postal Service under Leave.

CHARGES AND PENALTIES

• The agency removed the appellant from her supervisory position for deliberate misrepresentation to her supervisor and for deliberate misrepresentation under oath during an official investigation. A Merit Systems Protection Board administrative judge found that the agency proved the charges but reversed the agency because of "harmful error." Here, the judge determined that the appellant should have been advised of her "right to counsel" when investigated and concluded that if an attorney had been present during questioning, the appellant wouldn't have lied. The Board strongly disagreed. The Board noted that an individual's 5th Amendment protection against self-incrimination deals with past crimes and "does not shelter new perjury." The Board also noted that "[o]ur legal system provides methods for challenging the Government's right to ask questions--lying is not one of them." Finally, the Board noted that the Supreme Court in Lachance v. Erickson, 118 S. CT. 753, 756 (1998), made it plain that an employee does not have a right to lie to an agency investigator. In upholding the removal, the Board commented that falsification is an offense that affects an employee's reliability, veracity, trustworthiness, and ethical conduct and commented that the appellant as a supervisor could be held to a higher standard of conduct. Hylick v. Air Force, AT0752990243-I-1, February 14, 2000.

• In this case, the agency removed the employee from her Service Representative position because she failed to treat the public with courtesy and consideration. An arbitrator subsequently upheld that penalty. The employee sought review of the arbitrator's award by the Merit Systems Protection Board alleging that the arbitrator had failed to properly consider her allegations of discrimination, among other things. Because the Board did not find that the arbitrator erred as a matter of law in interpreting civil service law, rule, or regulation, it sustained the arbitrator's award upholding the removal penalty. Luna v. Social Security Administration, No. CB7121990064-V-1, February 24, 2000.

• The agency removed the appellant on a charge of "Misconduct" which was supported by three specifications detailing altercations with an agency customer, the appellant's supervisor, and a co-worker. A Merit Systems Protection Board administrative judge upheld only two of the specifications but sustained the misconduct charge. The judge, however, reversed the agency after finding harmful procedural error (the deciding official allegedly relied on instances of misconduct not contained in the agency's Notice of Proposed Removal) and finding disability discrimination. The full Board agreed that the agency' deciding official improperly considered events for which the appellant was never charged and never disciplined in making his penalty determination. Nevertheless, the Board determined that this error did not rise to the level of harmful error such that the proven misconduct could not be sustained. The Board also determined that the judge had erred in finding disability discrimination, in part because the appellant had been cleared for duty by medical personnel during the period at issue. Finally, the Board determined that the penalty of removal was within the parameters of reasonableness, noting among other things, that the agency's deciding official's actions and words indicated that the misconduct underlying the two sustained specifications of the charge was serious. Groeber v. United States Postal Service, PH0752960054-I-4, January 3, 2000.
  
  

EMPLOYEE/LABOR RELATIONS TRAINING

• The Office of Personnel Management's 2000 Symposium on Employee and Labor Relations (SOELR) will be held in Atlanta, Georgia on June 13-16, 2000. (This new site and date was announced following cancellation due to circumstances we could not have foreseen of our original plans to have the conference in Denver in March.) The updated brochure for SOELR 2000 (including its registration form) and other conference information is available on the Office's home page at www.opm.gov. This comprehensive conference is devoted to recent developments and emerging issues in employee relations, labor relations, dispute resolution, performance management, and partnership. SOELR 2000 will offer 10 all-day pre-conference workshops and more than 40 separate breakout topics during the conference. The conference fee is $650 plus $130 for optional pre-conference workshops.
  
  

• The annual Federal Dispute Resolution Conference (FDR) will be held in Anaheim, California on August 20-24, 2000. Brochures for the conference were mailed out in mid-March. The brochure, along with the conference registration form, is on an Internet website at http://www.fdr-conference.org/. This conference is oriented toward equal employment opportunity specialists, personnelists, and attorneys. The conference fee is $845 plus $100 for optional pre-conference workshops.
  
  

EVIDENCE (Credibility)

• The administrative judge had found the appellant not credible because her testimony was self-serving, and because it was inconsistent with testimony about her prior behavior. He also discredited the testimony of other witnesses because of the "likely bias" one held as a union official, and the long-standing relationships several had with the appellant. These were errors. The self-serving nature of a witness' testimony may be considered as a factor, but it cannot be the only factor considered, or no appellant could ever be found credible. Additionally, prior conduct may be used as a credibility determinant only when it reflects upon the witness' truthfulness. Finally, the union status of one witness and long-standing relationships of others were relevant, but could not be a sole basis for discrediting them. These errors were not found, however to have affected the validity of his "ultimate" finding. Bennett v. Air Force, DE0752980376-I-1, October 19, 1999.

• On remand from the Court of Appeals for the Federal Circuit, the Board looked at certain evidence it had earlier refused to consider. First it considered the evidence that a particular witness had been arrested and her husband convicted for using unlawful drugs. Citing the Federal Rules of Evidence and a number of cases, it found a witness' credibility may be impeached only with a conviction, not an arrest. Further, it noted, even a conviction would not necessarily impeach a witness, unless the "bad act alleged" involved untruthfulness. The Board had previously discredited the testimony of appellant's wife because of her pecuniary interest in the outcome of the case, and been instructed by the court that this was not a proper basis (see Wright v. Postal Service, No. 98-3260 (Fed. Cir. June 15, 1999). When fully considered, however, the Board found her testimony still incredible, since there was no explanation for the multiple discrepancies between her version and the rest of the record. The agency's action was therefore still sustained. Wright v. Postal Service, CH0752950916-M-1, December 17, 1999.

Created 27 February 2001