This recent appeals court decision raises questions about determining which employees are confidential and/or management. (Hayden v. Merit Systems Protection Board (CAFC No. 2016-1291 (nonprecedential) 5/10/16))
The issue was whether MSPB had jurisdiction over Ms. Hayden’s appeal when the Postal Service demoted her. Had she been a management or confidential employee then MSPB would have had jurisdiction. Here are the facts as reported in the court’s opinion.
Loretta Hayden was an EAS (Executive and Administrative Schedule) level 16 HR specialist in the New York division of the Labor Relations Office of the Postal Service (USPS). She was, according to the court, “not a member of a collective bargaining unit.” (p. 3) She worked on unemployment claims and represented the agency at hearings, as well as had access to confidential agency personnel data. Her duties included keeping the agency’s Grievance Tracking System and Disciplinary Tracking Program current and she had access to the agency’s labor relations database. (p. 2)
The agency demoted Hayden to a PS-4 Mail Handler because she entered incorrect data involving a grievance filed by an employee accused of mail theft. That accused employee happened to be Hayden’s sister. (p. 3) In the demotion letter the agency advised her that she could appeal to the MSPB.
Hayden did just that, but apparently just because the agency thought that was the appropriate avenue of appeal does not mean that MSPB would agree. Since in the Board’s judgment Hayden failed to prove that she was a manager or confidential employee, it had no jurisdiction over her appeal. It was dismissed on that basis. Hayden went to the appeals court.
The court now sides with the Board, agreeing that Hayden was neither a confidential employee nor a manager.
The court points out that it does not matter what Hayden’s job title was. What counted were her actual responsibilities and whether those add up to management or confidential employee responsibilities. (p. 5) The facts that her agency referred to her as “representing Management,” she was a member of the Postal Supervisors association, she worked in the Labor Relations Office, she was in the EAS pay scale, she received “non-bargaining salary increases,” she “was not a member of a collective bargaining unit,” are simply not enough in the court’s opinion to make her a management employee. (pp. 5-6)
As for whether she meets the test of a confidential employee, the court is equally unpersuaded, after parsing the National Labor Relations Board criteria and weighing those against Hayden’s duties. She may have had access to confidential personnel and labor relations databases, but, as the court sees it, “nothing in the record shows that she performed anything more than clerical data entry. … Thus, we see no reason to disturb the administrative judge’s factual findings.”
As for Hayden’s plea that denying her an appeal to the MSPB deprived her of due process, the court said, too bad…”no further process was due.” (p. 8)