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.

MSPB ESTABLISHES CIVILITY CODE

It's no secret that some appellants and some representatives (from both sides) are openly antagonistic toward administrative judges at MSPB. Their rancor transcends allegations of bias. It's unknown what prompted Board staff to act (there being no Board members in office), but a "Policy on Prohibited Conduct" appeared recently on the Board's website (not a regulation-since only the Board members can issue regulations), approving at the headquarters level responses by administrative judges, with sanctions if needed, for:

1. Physically or verbally assaulting parties, witnesses, or Board personnel;

2. Harming or threatening harm (in person, over the telephone, by mail, by fax, or in electronic communications) to parties, witnesses, Board personnel or Board offices;

3. Engaging in harassing, abusive, disruptive, or contumacious conduct, including but not limited to the use of profanity or excessively persistent telephone, email, fax, or in-person communications, that impedes Board personnel from performing their duties;

4. Using disparaging language based on race, color, religion, sex, national origin, age, sexual orientation, disability, marital status, and/or political affiliation;

5. Recording conversations with Board personnel without the Board's consent; and

6. Contacting or attempting to contact Board personnel at their personal addresses, telephone numbers, or emails, or through social media.

mspb.gov/foia/files/PolicyonProhibitedConduct.pdf

FEDERAL CIRCUIT AND FLRA PART WAYS ON CONTRACTUAL PROCEDURAL REQUIREMENTS GOVERNING ARBITRATORS

Every federal sector labor contract has a grievance process and an arbitration provision. Adverse actions can be challenged through grievances or at the MSPB. Minor disciplinary actions are addressed by grievances and arbitration. (We exclude mention of EEO or whistleblower or USERRA challenges.) Each grievance and arbitration article includes procedural requirements, e.g., deadlines. Some are more complex than others. Contracts differ.

FLRA in recent years has set aside arbitrators' awards in disciplinary cases when, in FLRA's estimation, arbitrators misconstrued procedural requirements governing the timeliness of grievances or invocation of arbitration. If FLRA deems the timeliness requirement sufficiently clear, it rejects reliance by an arbitrator on past practice used to inform application of that contract provision. In Buffkin v. Dept. of Defense (20-1531 May 1, 2020 Precedential), the Federal Circuit advised that procedural requirements (governing invocation of arbitration) are to be applied with regard to past practice and the circumstances of the case, allowing an arbitrator leeway to interpret contract provisions. The Circuit disclaimed reliance on FLRA decisions. The Circuit also considered the effect of what could have been premature invocation of arbitration. There are Board decisions that do not protect appellants whose appeals are premature (and a few decisions reaching an opposite result). The Circuit looked to Rule 4(a)(2) of the Federal Rules of Appellant procedure, stating that notice of appeal filed before entry of judgment is treated as filed on the date of and after the entry of judgment. The Circuit's precedential decision continues an effort by the court to reform Board (and arbitrators') decisions to accord greater due process in challenges to adverse actions.

Buffkin v. Dept. of Defense (2019-1531 May 1, 2020 Precedential)

FLRA SEEMS TO ADOPT MSPB BOLLING STANDARDS GOVERNING REVIEW OF PAST DISCIPLINE AY ARBITRATORS

An arbitrator reduced to five days a suspension of two weeks. Determining that the grievant did not have the opportunity to challenge a prior suspension on the merits, the arbitrator disclaimed management's reliance on a past suspension to enhance current discipline. FLRA set the award aside, noting that the challenge to the prior discipline was not raised in the reply to the fourteen-day suspension or in the grievance that followed, meaning that the arbitrator decided an issue (the challenge to the prior discipline) not before the arbitrator. Then, in apparent dictum, FLRA went on to suggest that the arbitrator improperly discounted the prior suspension. Without expressly accepting or rejecting reliance on Bolling v. Dept. of Air Force, 9 MSPR 335 (1981), FLRA analyzed the Bolling factors governing whether past discipline can be reviewed in a Board challenge to current discipline: whether the employee was notified of the action; whether the action was a matter of record; and whether the action could be challenged before higher authority. There was more to Bolling, but FLRA concentrated on those points. FLRA set aside the penalty portion of the arbitrator's award. Did FLRA mean to incorporate Bolling, involving an adverse action, into arbitral review of minor disciplinary actions? We will find out, but not today.

SBA and AFGE Local 288, 71 FLRA 655 (April 2, 2020) (Member DuBester dissenting)

SUPREME COURT DEFINES THE BURDEN OF PROOF IN FEDERAL SECTOR AGE DISCRIMINATION CASES

It regularly occurs that the dispute on appeal of a case involving motivation is over who has the burden of proof: how is discrimination or reprisal determined (direct evidence, inference); how does the employer refute the evidence or inference? Considering an allegation of age discrimination by a federal employee, the Supreme Court determined that the plaintiff must show that age was a "but for" cause of the challenged employment decision, but if age discrimination played a lesser part in the decision, other remedies may be appropriate. Plaintiff Babb, a VA employee, asserted that, as a result of her age, the employer denied her a professional designation that made her eligible for promotion, that she was denied training and passed over for positions, and that her holiday pay was reduced when she was placed into another position. The Court determined that age need not be a but-for cause of an employment decision for there to be a violation of the ADEA-age must be a but-for cause of discrimination or differential treatment, but not necessarily the but-for cause of a personnel action. In short, the same personnel decision may have been made in the absence of age discrimination, but if the process was affected by discriminatory factors, there is remedial authority as to the differential treatment. There would be no backpay, damages or other forms of relief relating to an employment decision. There could be injunctive or other forward-looking relief.

Babb v. Wilkie, ___S.Ct.___ (April 6, 2020)