|
United States
Office of
Personnel Management |
New Developments in Employee
and Labor Relations |
March 2000 |
OPM's Family-Friendly Workplace Advocacy Office held a briefing on the proposed rule that allows agencies to use appropriated funds for child care tuition assistance for lower income employees on Wednesday, January 12, 2000, in the Allan K. Campbell Auditorium. This proposed rule, which appeared in the Federal Register, Vol. 64, No. 246, on December 23, 1999, applies to employees who enroll their children in licensed and/or regulated center-based child care or family child care homes. This briefing covered OPM's guidance to agencies on implementing the child care legislation, models that can be used to make determinations about lower income eligibility, sample agreements, and the required reporting format. This law will give lower income Federal families financial relief with their child care expenses.
Nursing Mothers Program. OPM's Family-Friendly Workplace Advocacy Office held a nursing mother seminar on Tuesday, February 22, 2000 in Conference Room 1350 from 9:30 a.m. to 12:00 p.m. This seminar, Everything You Wanted to Know About A Nursing Mothers Program But Were Afraid to Ask, focused on establishing and maintaining lactation programs by exploring sanitation issues, and the benefits of breast feeding. The seminar also included personal experiences of mothers who have breast fed at the workplace.
Fatherhood Program. OPM's Family-Friendly Workplace Advocacy Office sponsored a half-day conference, United Fatherhood: Making the Difference in Children's Development on Wednesday, March 29, 2000 at OPM's Conference Room 1350 from 9:30 a.m. to 12:30 p.m. The conference focused on policy, research, and practice of the importance of fatherhood programs in children's development.
Report to Congress. A Review of the Federal Family-Friendly Workplace Advocacy Office was delivered to Congress during the week of March 20, 2000. The Report summarizes the activities and accomplishments of the Congressionally mandated Family-Friendly Workplace Advocacy Office since its establishment on March 1, 1999. Three major accomplishments of the past year were sponsoring the Federal Child Care Summit, establishing the Interagency Family-Friendly Workplace Working Group and issuing the new child care regulation permitting the use of appropriated funds to subsidize child care for lower income Federal employees. The Report is available in its entirety on the Office's web site at http://www.opm.gov/wrkfam.
Agency Use of Appropriated Funds for Child Care Costs for Lower Income Employees. On March 14, 2000, the Office of Personnel Management (OPM) published final regulations implementing new child care legislation (Sec. 643 of Pub. L. 106-58) permitting agencies to help lower income Federal employees with their costs of child care. Appropriated funds, including revolving funds that are otherwise available to the agency for salaries, can be used for this purpose until September 30, 2000. To help agencies establish their tuition assistance programs, OPM has developed detailed guidance including models that can be used to make determinations about lower income eligibility, sample marketing fliers, notices, application forms, agreements, letters for parents, and a sample statement of work. The final rule and Guide for Implementing Child Care Legislation are posted on the OPM websites, http://www.opm.gov and http://www.opm.gov/wrkfam.
Kinship Care Program. OPM's Family-Friendly Workplace Advocacy Office sponsored a half-day seminar on Kinship Care on Thursday, April 6, 2000 at OPM's Conference Room 1350 from 9:30 a.m. to 12:00 p.m. This program covered grandparents raising grandchildren and more.
In its rather terse (and unpublished) decision, the 9th Circuit, relying in part on its 1983 Fresno decision, held that EEO complaints are not grievances for formal discussion purposes and accordingly reversed the Authority's decision in 54 FLRA No.75. In its reasoning the 9th Circuit made no reference to the contrary views of the D.C. Circuit or to the statute's definition of grievance in 5 U.S.C. 7103(a)(9). In reversing the Authority's decision, it said the following:
Under IRS, Fresno Serv. v. FLRA, 706 F.2d 1019, 1024 (9th Cir. 1983), grievances within the meaning of Section 7114(a)(2)(A) do not include [the unit employee's] complaints because they were brought pursuant to EEOC procedures, which are discrete and separate from the grievance process to which 5 U.S.C. [] . . . 7114 [is] directed. The fact that the collective bargaining agreement explicitly excludes discrimination claims from the grievance procedure also suggests that these claims are not grievances. See id. Because the January 19 meeting did not concern grievances within the meaning of Section 7114, the meeting did not satisfy the fourth element of Section 7114. The union therefore had no right of representation at the meeting.
This decision is inconsistent with the views of the D.C. Circuit as expressed in NTEU v. FLRA, 774 F.2d 1181 (1985). There, the D.C. Circuit, relying on the definition of grievance in 5 U.S.C. 7103(a)(9), concluded that statutory appeals (there, an MSPB appeal) constituted grievances for formal discussion purposes. (Section 7103(a)(9)(C) defines grievance to encompass, in addition to alleged violations of the collective bargaining agreement, also alleged violations of any law, rule, or regulation affecting conditions of employment.) The court said that it therefore disagreed with the Ninth Circuit to the extent that that circuit, in INS, Fresno v. FLRA (1983), may have construed the term grievance to include only disputes covered by the negotiated grievance procedure.
In Department of Justice, Federal Correctional Institution and AFGE Local 3882, 29 FLRA No. 52 (1987), the Authority, relying on its original views on this matter and adopting the views of the D.C. Circuit, concluded that a grievance within the meaning of section 7114(a)(2)(A) purposes can encompass a statutory appeal.
The Authority has petitioned the Ninth Circuit for an en banc review, presumably as a prelude to asking the Supreme Court to resolve the conflict between the 9th and DC Circuits. Luke Air Force Base v. Federal Labor Relations Authority and AFGE Local 1547, No. 98-71173, 98-71347 (9th Cir. 12/30/99).
- In a matter prosecuted by the Office of Special Counsel, the Merit Systems Protection Board determined that a Postal Service employee violated the Hatch Act in 1995 when he was "elected School board Director for the Oxford Area School District, Oxford, PA as both a Republican and Democratic Party candidate." The Board noted that under Title 5 of the United States Code, Section 7323(a)(3), a Federal employee may not "run . . . as a candidate for election to a partisan political office" and that a violation of this law requires removal unless the Board unanimously approves a lesser penalty. In this case, the Board noted that the employee had resigned his elected office, had over ten years of satisfactory service, had received incorrect legal advice from his supervisor about his Hatch Act responsibilities, and had expressed remorse. As a consequence, the Board determined that a 30-day suspension was the appropriate penalty. Special Counsel v. David L. Pierce, CH1216990063-T-1, February 24, 2000.
The FLRA set aside an award in which the arbitrator awarded asbestos hazardous pay differential (HPD) to certain Air Traffic Specialists for time worked in a control room on July 29, 1997. The award was inconsistent with the agency's interpretation of its regulation (which was, in fact, OPM's Governmentwide regulation that the agency, otherwise exempt from its coverage, voluntarily adopted as its own). Under that interpretation, to qualify for HDP the exposure must be directly connected with the performance of an employee's duties--a requirement not met in this case. (In a 1955 advisory opinion, OPM had said that employee exposure to asbestos, as a result of contractor problems in removing the asbestos from the workplace, would not fulfill the regulatory direct connection requirement for HPD.)
While at it, the FLRA said the following about deferral to agency interpretations of its regulations:
The standard of deference due an agency's interpretation of its own regulations is the same whether the agency's regulation is externally mandated or internally selected. Where the interpretation is not clearly erroneous or inconsistent with the regulation, we will defer to the agency. . . . [T]his is not to say that an agency's interpretation is necessarily always the best or most reasonable interpretation. As is the case with the federal courts, however, [o]ur task is not to decide which among several competing interpretations best serves the regulatory purpose . . . the agency's interpretation must be given controlling weight unless it is plainly erroneous or inconsistent with the regulation. Thomas Jefferson University v. Shalala, 512 U.S.504, 512 (1994). Here, the Agency's interpretation of its regulations is neither plainly erroneous nor inconsistent with the underlying regulation.
Federal Aviation Administration and National Air Traffic Controllers Association, 0-AR-3073, September 17, 1999, 55 FLRA No. 136.
Because the appellant was required to maintain a confidential security clearance to perform his job and that clearance has been suspended, the agency placed the appellant on indefinite suspension for "Failure to Meet a Mandatory Condition of Employment." A Merit Systems Protection Board administrative judge reversed the suspension and ordered interim relief after finding that the agency had denied the appellant due process. Here, the judge ruled that providing an employee notice of a condition subsequent, i.e., when the indefinite suspension will end, at the time the suspension is proposed, is part of the adverse action due process provided by law. The Chairman of the Board, with a concurring opinion by Vice Chair Slavet, however, never reached this issue as the agency's petition for review was dismissed for failure to provide interim relief. The agency had reinstated the employee on interim relief but made the action effective a month after the date of the judge's initial decision (interim relief must be effective on the date of the initial decision). Member Marshall's dissenting opinion covered two issues: due process and interim relief. With regard to due process, she noted that the Supreme Court's decision in Department of the Navy v. Egan, 484 U.S. 527, limited the Board's involvement in security clearance matters. She also noted that the Court of Appeals for the Federal Circuit in its 1996 decision, King v. Alston, 75 F.3d 657, stated that the Board is only authorized in such cases to determine whether the employee was provided with "notice of the reasons for the suspension of his access to classified information when that is the reason for placing the employee on enforced leave pending a decision on the employee's security clearance." She concluded that the appellant clearly had been afforded this minimal due process--that he knew why the action was being proposed and had an opportunity to make a meaningful reply. She noted that the appellant had acknowledged he understood that he was being suspended pending a final determination on his security clearance (a condition subsequent). With regard to the interim relief issue, Member Marshall argued that cases involving security clearances should be added as a general class of cases for which interim relief is not appropriate just as the Board has done for other classes of cases (e.g., retirement). Vice Chair Slavet's concurring opinion argued that interim relief is appropriate in cases involving security clearance issues and that the burden on agencies to provide interim relief in such cases is no greater than if it were a non-security related case and the agency determined that an appellant's return to duty would be unduly disruptive. Lambert v. Department of the Navy, SF0752980778-I-2, February 14, 2000.
Because the appellant was receiving benefits from the Office of Workers' Compensation, the Merit Systems Protection Board agreed with the agency that it was not proper for a Board administrative judge to order interim relief after he mitigated the agency's penalty from removal to a 14-day suspension. The Board commented that to do so could result in the agency's payment of monies "in contravention" of workers' compensation statutory provisions. With regard to back pay, the Board applied its decision in Special Counsel v. Department of Veterans Affairs, 81 M.S.P.R. 601 (1999), and ruled that the agency was required to pay the employee the difference between the Workers' Compensation benefits and full back pay. [This appears to expand the holding in Special Counsel which seemed to be limited only to circumstances where there was a "causal connection" between the agency's actions and the employee's benefits. In Special Counsel, the Board determined that the agency's actions (determined to be prohibited personnel practices) caused the employee to become ill and thus eligible for Workers' benefits. Therefore, the employee in that case was eligible for full back pay offset by the amounts of his benefits.] Brownlow v. Department of Treasury, AT0752990007-1-1, March 6, 2000.
Chairman Erdrich and the Vice Chair Slavet of the Merit Systems Protection Board reject
the arguments of Member Marshall that interim relief is not appropriate in security clearance-related cases. [See Lambert v. Navy under Indefinite Suspensions.]
After the administrative judge (AJ) mitigated the removal action, the agency argued for the first time in its petition for review that the Board lacked jurisdiction because the excepted service employee lacked a full year of current continuous service in the same or similar position. The appellant argued that as a preference eligible, he was not required to serve a "probationary period" in his manager position, since he had previously completed one in his Distribution Clerk job. The Board looked to old case law from the Court of Claims to find that completion of a prior probation does not satisfy the requirement to complete one in a new, unrelated job, even for a preference eligible. It remanded for a specific finding about whether the manager position from which the appellant was removed was "the same or similar" to the job from which he was promoted. Preyor v. Postal Service, NY0752970143-I-1, September 28, 1999.
The agency placed the employee on indefinite suspension and he appealed. Shortly after the decision to suspend, the agency issued another notice rescinding the suspension and replacing it with administrative leave. The appellant argued that the agency could not rescind the action after his appeal without his permission, or a complete restoration to the status quo ante. The Board cited extensively to case law on indefinite suspensions to note that its jurisdiction over them is not greater than its jurisdiction over suspensions with a definite duration. Therefore, since this one never exceeded 14 days, there was never an appealable action. McClure v. Postal Service, SE0752990017-I-1, September 30, 1999.
Both appellants had been initially appointed under statutory provisions that explicitly precluded them from the coverage of Chapter 75, in appellant Olmedo's case, and Chapter 43, in the case of appellant Harris. However, during their employment, that statute was repealed, and the current statute does not explicitly exclude employees from the due process rights of either chapter. Applying Stewart v. DOD, 82 M.S.P.R. 649 (1999), the Board noted that the statute in effect at the time of an action governs due process coverage. Both appellants were therefore entitled to proceed with their appeals. Olmedo v. DOD, NY0752990120-I-1, December 9, 1999, and Harris v. DOD, DC0432990585-I-1, December 10, 1999.
The appellant argued and the AJ agreed that the agency had committed harmful procedural error when the deciding official considered incidents in reaching his decision that had not been included in the notice of proposed action. The Board found that the improper consideration occurred, but was not harmful. Following Westmoreland v. DVA, 83 M.S.P.R. 625 1999, the Board simply conducted its own penalty analysis without considering the additional "improper" factors. Groeber v. United States Postal Service, PH0752960054-I-4, January 3, 2000. (See also Groeber v. United States Postal Service under Charges and Penalties.)
See also Hylick v. Air Force under Charges and Penalties.
Created 27 February 2001
|
|
