VACATION NOTICE: From 8/1-8/9 the office will be closed, no shipping.
Email checked occasionally. All orders will ship Monday 8/12.
All eBook orders are available immediately after checkout.
2009: #01-1 | #01-2 | #01-3 | #01-4 | #01-5 | #01-6 | #01-7 | #01-8 | #01-9 | #01-10 |
2010: #02-1 | #02-2 | #02-3 | #02-4 | #02-5 | #02-6 | #02-7 | #02-8 | #02-9 | #02-10 | #02-11 | #02-12
2011: #03-1 | #03-2 | #03-3 | #03-4 | #03-5 | #03-6 | #03-7 | #03-8 | #03-9 | #03-10
2012: #04-1 | #04-2 | #04-3 | #04-4 | #04-5 | #04-6 | #04-7 | #04-8 | #04-9 | #04-10 | #04-11 | #04-12
2013: #05-1 | #05-2 | #05-3 | #05-4 | #05-5 | #05-6 | #05-7 | #05-8 | #05-9 | #05-10 | #05-11 | #05-12 | #05-13
2014: #06-1 | #06-2 | #06-3 | #06-4 | #06-5 | #06-6 | #06-7 | #06-8 | #06-9 | #06-10 | #06-11 | #06-12 | #06-13 |
2015: #07-1 | #07-2 | #07-3 | #07-4 | #07-5 | #07-6 | #07-7 | #07-8 | #07-9 |
2016: #08-1 | #08-2 | #08-3 | #08-4 | #08-5 | #08-6 | #08-7 | #08-8 |
2017: #09-1 | #09-2 | #09-3 | #09-4 | #09-5 | #09-6 | #09-7 | #09-8 | #09-9 |
2018: #10-1 | #10-2 | #10-3 | #10-4 | #10-5 | #10-6 | #10-7 |
2019: #11-1 | #11-2 | #11-3 | #11-4 | #11-5 | #11-6 | #11-7 |
The "News and Case Alert email" is FREE, signup!
Sign up now to start receiving issues on time. Expect 10-14 issues a year.
We will never spam or give out your address.

My e-mail address is:  

Dewey Publications Inc.
News and Case Alert
Issue #11-2
TABLE OF CONTENTS


STATE OF THE UNION AND THE YEAR TO COME



FLRA AND DECISIONS REVIEWING ARBITRATORS' AWARDS

Coming Soon

Federal Sector Process, Appeal, and Review Rights
Federal Sector Process, Appeal, and Review Rights
More details at:
deweypub.com/parr


Federal Supervisor's Guide to Workplace Disability and Accommodations
Federal Supervisor's Guide to Workplace Disability and Accommodations, 2019
More details at:
deweypub.com/wda


Best Sellers

Managing Employee Performance
Managing Employee Performance, 2018
More details at:
deweypub.com/mep


Security Clearance Law and Procedure
Security Clearance Law and Procedure
More details at:
deweypub.com/sclp


Surviving EEO Complaints
Surviving EEO Complaints
More details at:
deweypub.com/seec


Conducting Misconduct Inquiries
Conducting Misconduct Inquiries, 2018
More details at:
deweypub.com/cmi


MSPB Case Summaries
MSPB Case Summaries
More details at:
deweypub.com/mscs


Management of Problem Employees
Management of Problem Employees
More details at:
deweypub.com/mope


Due Process in Adverse and Performance-Based Actions
Due Process in Adverse and Performance-Based Actions
More details at:
deweypub.com/dpap



The Dewey Publications
Podcast

Free to subscribe via iTunes or RSS

Hosted By Peter Broida. View a detailed list of all past episodes here.


Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.

VISIT US ONLINE AT

www.deweypub.com


STATE OF THE UNION AND THE YEAR TO COME

Noted from President Trump's SOTU address last night were his mention of the 2017 Department of Veterans Affairs legislation expediting procedures to remove VA employees. Was he impliedly urging Congress to take additional steps? Will that legislation be replicated for other agencies or, perhaps, the entire civil service? For those who aren't familiar with the statute, it permits employees to be removed with MSPB review based on substantial evidence and no mitigation, equating adverse actions with performance-based actions. Actually, under the statute, a performance-based action would have more structural protection (reasonable performance standards, an opportunity to improve) than an adverse action under the VA system. A properly structured performance case is tough to beat. An adverse action presents greater opportunities for challenge as the system is now structured.

Also, from the president's message was an exhortation for speedy action by the Senate on 400 pending nominations. Among those are the three nominees for the MSPB, re-nominated this year after their nominations stalled last year. Problems with the two Republican nominees developed, to the extent the process is publicized, with objections to those two nominees by labor unions based on issues concerning the nominees' qualifications and, for one of the nominees, a critique by a federal judge of the nominee's pleadings submitted in defense of an EEO case against the agency where that nominee is employed as an attorney.

The Union letters, from last year, before the current re-nominations, are:

https://aflcio.org/about/advocacy/legislative-alerts/letter-opposing-nominations-merit-systems-protection-board

www.ifpte.org/downloads/news/manager/1029c.pdf

Now, an editorial cautionary note: in the course of an litigator's career, it will occur that an adjudicator, be it an MSPB AJ, or the Board, an ALJ, or a federal judge will become disturbed at some component of an advocate's representation. There are several possible results: nothing is said, nothing is done; a verbal admonition in court or in chambers; a referral to a bar disciplinary entity (resulting in due process review for the advocate); a direct sanction (which may itself be appealable); or a comment in a judicial decision or order. The last is the most difficult: it is not appealable; it is essentially public and indelible; and over the course of a career, it is likely unavoidable at some point. So, some care must be exercised in judging an advocate by an isolated adjudicator's comment; at least, before an assessment is made, the pleadings and circumstances that led to the comment must be independently reviewed.



American Civil Service Law Series

A Guide to Merit Systems Protection Board Law and Practice
By: Broida

IN-STOCK


A Guide to Federal Labor Relations Authority Law and Practice
By: Broida

IN-STOCK

A Guide to Federal Sector Equal Employment Law and Practice
By: Hadley

IN-STOCK

FLRA AND DECISIONS REVIEWING ARBITRATORS' AWARDS

The shutdown is over; the FLRA back in business of issuing decisions. And when we say the FLRA is back in business, that is partially incorrect. President Trump has still not nominated an FLRA General Counsel, so there are plenty of ULP charges piling up and being investigated (and some settled) at the regional level, but without a GC in place, no ULP complaint can be issued.

But back to FLRA business. Since the shutdown ended, FLRA issued four decisions, each involving review of an arbitrator's award. In one decision, involving a successful challenge to a suspension, the union mentioned in its submission to the arbitrator that it would be requesting counsel fees. The arbitrator ordered backpay but denied counsel fees because the union request was unsupported. The FLRA modified the award to strike the fee denial, leaving the union to submit a proper fee petition to the arbitrator. Lesson learned: it is important to spell things out with some precision for arbitrators. If a union is going to request fees, make it plain that a fee petition will be submitted after an award that provides backpay, so that the arbitrator retains jurisdiction after the merits award is issued. Even if the arbitrator does not retain jurisdiction by saying as much in the merits award, as a matter of practice, the arbitrator would retain jurisdiction under FLRA law so as to permit submission to the arbitrator of a fee petition after issuance of that merits award.

FOP Lodge 1 and DOD, Pentagon Force Protection Agency, 71 FLRA 6 (2019): https://www.flra.gov/decisions/v71/71-2.html


    SecurityMetrics Credit Card Safe