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NEWS AND CASE ALERT
December 18th, 2020 | Issue #12-09
TABLE OF CONTENTS
FLRA REMINDERS TO PARTIES, ARBITRATORS, AND DISSENTERS
IS THAT ALL THERE IS?

THE SES INFORMAL HEARING
AND NOW, A WORD TO OUR SPONSORS
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email.
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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.
FLRA REMINDERS TO PARTIES, ARBITRATORS, AND DISSENTERS
FLRA decisions are sometimes preachy if not condescending, as in “we once again remind arbitrators,” or “we remind the federal labor-relations community,” to cite two recent examples, and the written dialogue between majority and dissenting decisions can be sharp at times—far more so than in MSPB decisions (when they were being issued) or in Federal Circuit decisions (models of politesse). Discourse seemed on a downward slope in DHS, C&BP and AFGE Local 2266, 71 FLRA 1155 (11/30/2020) (Member Abbott dissenting). The decision was the product of exceptions to an arbitrator’s award holding that some collateral duties were improperly removed from the grievant, a canine handler. The controversy included discussion of a visit by the grievant and canine, who was injured, to a vet, and the dog’s treatment after that visit. Critical of the grievant’s performance, the Agency separated her from the canine-handler program. An arbitrator reversed the Agency’s decision and directed the grievant’s restoration to the canine program. Dissenting, Member Abbott, criticized the Authority majority and the arbitrator for ignoring what Mr. Abbott characterized as neglect of proper medical care of the grievant’s canine charge. To these comments the rejoinder in the majority decision was that Member Abbot was painting a “fictional narrative,” leading to the comment from the majority that: “We remind our colleague that we defer to an arbitrator’s unchallenged factual findings. We certainly are not free to disregard “what the Arbitrator may have considered relevant. Our colleague should more carefully review the Arbitrator’s findings and the record before lodging allegations of such grave significance against a party before us.” Reminders all around.
Provides instruction on how to resolve employee grievances, appeals, and complaints. Major topics include discussion of EEO settlements, defining settlement interests, creating settlement options, and finalizing the agreement.
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. New developments that are discussed include: COVID-19, Families First Coronavirus Response Act, regulatory changes covering a wide variety of FMLA issues and more.
IS THAT ALL THERE IS?
THE SES INFORMAL HEARING
Long on the books (since 1978 in the Reform Act) and seldom used is a process for a nonprobationary career SES member who is taken out of the SES for substandard performance. Ordinarily, the SES member so removed is placed into a GS-15 position with no pay loss. The law provides the opportunity for an “informal hearing,” held before an ALJ appointed by the MSPB. A record of that hearing, which is non-adversary, and the procedures for which are within the discretion of the ALJ running the hearing, is provided to OPM, to the employing agency, to OSC, and, naturally, to the MSPB. There’s no real decision. Just a record of the hearing and whatever summary the ALJ decides to write about the hearing and the argument by the employee and evidence offered during that argument. Given the rather circumscribed scope (and result) of the informal hearing, they are infrequent: either few SES members are taken out of their appointments for poor performance, or very few SES members who are removed request an informal hearing. In Esparraguera v. Dept. of Army, ___F.3d___ (Fed. Cir. 12/4/2020), the court considered an appeal challenging the lack of substance in the informal hearing process. The argument was that the process should be more formal, perhaps contain findings of fact, and recommendations that would in some way bind the employing agency through a Board decision. Reviewing the history and structure of the Reform Act, providing for hearings and Board decisions in adverse actions and performance-based actions against most civil servants, and for some SES members (misconduct removals), the Court decided that Congress did not intend to confer more than the informal process described in the statute. The court concluded that the process and record of the informal hearing—with no provision for a Board decision reviewing the Agency action—did not require, permit, or constitute a final MSPB merits decision within the jurisdiction of the Circuit to review. No change to the informal hearing process—one more anomaly in the complexity of Title 5 personnel cases.
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AND NOW, A WORD TO OUR SPONSORS
Readers, Dewey thanks you for your support during this difficult year. Your continuing commitment to our products pays the rent, pays the staff, and keeps the enterprise afloat. Our authors remain committed to producing quality texts year after year. We welcome your suggestions for improvements, or comments you may wish to pass along to deweypublications@gmail.com. Our operators are standing by. To each and every one of you, from your friends at Dewey, a happy holiday and a happier New Year.
View All of the American Civil Service Law Series online at:
The EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners.
The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law.
The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration.


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federal civil service, equal employment, and labor law,
for attorneys, unions, arbitrators, managers,
and agency personnel offices.

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