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Dewey Publications Inc.
News and Case Alert
Issue #10-7
TABLE OF CONTENTS


ARBITRATORS MAY NOT REQUIRE AGENCIES TO CONVERT STUDENT APPOINTMENTS TO PERMANENT APPOINTMENT



ARBITRATORS' REMEDIES TO BE PROPORTIONATE TO THE ERROR



GOOD FAITH DOUBT AS TO UNION REPRESENTATIONAL ABILITY BASED ON MULTI-FACTOR ANALYSIS



DUE PROCESS IN ADVERSE ACTIONS



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FLRA

ARBITRATORS MAY NOT REQUIRE AGENCIES TO CONVERT STUDENT APPOINTMENTS TO PERMANENT APPOINTMENTS

Students employed under the Pathways Program receive excepted service term limited appointments with a not-to-exceed date. Although a student who completes the program may receive a permanent appointment, the program does not create an entitlement to conversion to a term or permanent position following the internship's conclusion. Because Congress did not give arbitrators the power to grant permanent-employee status to term appointees, a dispute over whether the agency should have converted the student to that status is not grievable or arbitrable as a matter of law. At the onset of the decision, the Authority commented, in a holding broader than the facts, "we take this opportunity to clarify that, like probationary employees, term appointees and similar time-limited appointees may not file grievances challenging an agency's decision concerning extending, converting, or ending their employment."

Dept. of Labor and AFGE Local 12, 70 FLRA 903 (Oct. 17, 2018) (Member DuBester dissenting) flra.gov/decisions/v70/70-177.html


FLRA

ARBITRATORS' REMEDIES TO BE PROPORTIONATE TO THE ERROR

An employee desired to telework from Las Vegas to her workstation at Ogden, Utah. Not so the agency, which declined the request to change her workstation and to permit her to telework from it. The Union grieved. An arbitrator concluded that the agency failed to provide a contractually-required specific rather than generic reason for the denial of the requested telework. Had the agency followed the contract, the employee could have teleworked and would not have resigned to remain in Las Vegas for family reasons. He directed reinstatement of the grievant, that she be given the telework, and that she receive backpay and benefits. The award was vacated because the remedies did "not reasonably and proportionally relate to the Agency's violation" of the contract. The Authority majority opinion that the failure to provide a specific justification for denying the telework and duty station change required no more than a specific justification for the denial.

Dept. of Defense, DLA and AFGE Local 1592, 70 FLRA 932 (Oct. 31, 2018) (Member DuBester dissenting). flra.gov/decisions/v70/70-182.html


FLRA

GOOD FAITH DOUBT AS TO UNION REPRESENTATIONAL ABILITY BASED ON MULTI-FACTOR ANALYSIS

When an agency alleges a good faith doubt that the currently recognized labor organization represents a majority of employees in the unit, the Authority will rely on no single factor. Instead, examined are membership meetings, lobbying efforts, filing of ULP charges or grievances, negotiations over impact of changes in working conditions, the status of the negotiated agreement, union membership rates, representation in adverse actions, EEO matters, and work safety issues.

Export-Import Bank and AFGE, 70 FLRA 907 (Oct, 18, 2018) (Member DuBester concurring) flra.gov/decisions/v70/70-178.html


FEDERAL CIRCUIT

DUE PROCESS IN ADVERSE ACTIONS

If a due process error occurs as to one of several adverse action charges, the action as a whole is not necessarily invalidated. Under these circumstances, an arbitrator properly applied due process on a charge-by-charge basis. Untainted charges need not be invalidated to cure a due process error as to a factually-distinct charge.

Boss v. DHS, Fed. Cir. 2017-2231 (Nov. 13, 2018). cafc.uscourts.gov/sites/default/files/opinions-orders/17-2231.Opinion.11-13-2018.pdf


FROM THE PUBLISHER

We, the band of Dewey's followers who persevere in publishing our civil service library, express thanks to our readers and our best wishes for these holidays and the year to come. Our wish list for 2019 includes:

Restoration of a quorum at the MSPB with knowledgeable and energetic Board members;

Nomination and confirmation of an FLRA General Counsel to permit ULPs to be processed, no matter the identity of the charging party;

Statutory restructuring of the Office of Special Counsel to require effective and prompt investigations and efficacious use of corrective action authority.

Great success for EEOC and its field offices in the implementation of new case processing initiatives to more quickly process complaints, provide remedies for deserving complaints, and reduce the backlog of meritless claims.

Best wishes from Dewey for a happy and productive New Year.



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