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In a negotiability case involving SSA and AFGE, FLRA Member Pizzella reminded the other members of a recent court ruling reversing a decision and taking those members to task for a theory that the court concluded ended up with two separate results on the same issue depending on which process it arose in. Member Pizzella’s opinion is quoted verbatim in the article and the author suggests it’s worth a read by practitioners.
In denying a hearing on the matter (certiorari), the Supreme Court backed the Federal Circuit in setting limits on the MSPB’s jurisdiction to hear appeals of removals or other actions taken by an Agency when an employee loses the ability to hold a “sensitive” government job. As the author points out, many more Federal employees hold positions with a sensitive rating than do those with security clearances.
Since the Federal Labor Relations Authority was inoperative for all but the last week or two of 2013, the most significant cases for practitioners were decided by the Merit Systems Protection Board and the Federal Courts.
In a January 3, 2014 decision, the Federal Circuit stated: “As explained in this opinion, by adopting two inconsistent interpretations of the same statutory language, the Authority has acted arbitrarily and capriciously”. This deals the FLRA, only back in operation since mid-December, a stinging rebuke on arguably its most extensive political tool, the determination as to what is or isn’t an “appropriate arrangement.”
Federal Agency advocates, attorneys, HR advisors and adverse action decision makers should make a point of reading the MSPB’s new report titled Clean Record Settlement Agreements and the Law. The report identifies the pitfalls involved in making deals with employees in which the Agency agrees to expunge negative information from an employee’s record in return for a resignation.
MSPB announced on 11/8/2013 that it planned to change the way it adjudicates jurisdiction claims by altering its regulations. The Author suggests that anyone involved in appeals before the Board should read this article and respond to the Board’s request for comments by practitioners. As a part of its effort, the Board has prepared a useful chart called Elements/Issues in MSPB Appeals that is worth reading.
MSPB has published statistics on case handling for the last two years. The numbers for cases before Administrative Judges are remarkably consistent, while full Board cases appear skewed in a different direction. The author suggests advocacy would benefit from some Board studies on the basis for decisions and departure from precedent if indeed such is the case.
Robert (Bob) J. Gilson has expertise in Federal sector labor and employee relations. He began his Federal career with the U.S. Civil Service Commission (later OPM).
Bob held managerial, advocacy and advisor positions with OPM, Navy, Army, Treasury and the National Transportation Safety Board. He served as chief negotiator on numerous labor agreements in the U.S. and abroad. He represented his agencies before the FLRA, FSIP, MSPB, EEOC and arbitrators. The recipient of numerous awards, Bob was also principally responsible for working cases involving adverse actions for conduct and performance at all levels including Senior Executives. Bob retired from Federal service is currently a senior associate with RGS Inc. RGS is the successor to GRA Inc. whose work is familiar to many of you.
He has trained literally thousands of Federal negotiators, practitioners, supervisors and managers for over 40 years. He has been a Fedsmith author for more than 8 years. Bob is a frequently invited speaker at national conferences on labor and employee relations. Projects included advising and training managers on bargaining and over the last few years serving as chief negotiator for several Agencies. Bob is currently working on a major project to develop bargaining preparation tools, basic and advanced training, and Agency negotiation strategies. If you need to get in touch, you can always reach Bob through FedSmith.com.
Bob is the author or co-author of eight books for Federal managers.