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NEWS AND CASE ALERT
March 1st, 2021 | Issue #13-02
TABLE OF CONTENTS
MSPB NOT REQUIRED TO CONSIDER ARBITRATION AWARDS IN PENALTY DISPARITY ANALYSIS
WORTH READING
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.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email.

MSPB NOT REQUIRED TO CONSIDER ARBITRATION AWARDS IN PENALTY DISPARITY ANALYSIS
Six letter carriers and the appellant were involved in purchases of marijuana from a fellow traveler while on duty. The seven were fired. Five sought review in arbitration. Appellant sought review with MSPB, whose AJ sustained removal. Arbitrators issued separate decisions mitigating the removals to long-term suspensions. Although those arbitration awards were issued before the date of the MSPB AJ's initial decision, the disparity issue was not raised with the AJ. It was considered initially by the Federal Circuit, although ordinarily failure to raise evidence or argument before the Board would preclude its consideration in court. But the court considered the information about the arbitrators' awards in comparable cases and explained that the reduction in the penalties in arbitration did not reflect disparate treatment by USPS. Nor would the Board be required to defer to arbitration awards in other cases, according to the court's decision: "[T]he Board's decision need not be consistent with arbitration decisions in other cases." The court went on to note some distinctions between the situation involving Mr. Holmes and the other employees (who apparently recognized the magnitude of their actions). As to the invocation of the Fifth Amendment by Mr. Holmes in the removal proceedings, the court relied on precedent that an employee may invoke constitutional protections against compelled testimony, but "an agency may still take into consideration and make an adverse inference from the failure of the employee to respond." Dissenting, Circuit Judge Newman argued that employees similarly situated are entitled to similar treatment. The Circuit, Judge Newman, stressed, is "charged with safeguarding this vast segment of federal employment law, in the interests of both the government and those who serve it."

This book helps federal supervisors to understand not just the legal requirements, but the practicalities of dealing with employees and their representatives—the federal unions. Guidance provided will give supervisors not only the knowledge necessary to help them stay out of trouble, but also practical guidance for dealing with the unionized environment.

By: Broida & Davis
Edition: 11th/2020
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2020 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, mitigation, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA.
WORTH READING
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Thank You
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 this small 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.
View All of the American Civil Service Law Series online at: deweypub.com/acsls

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 FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration.

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.

This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2020 and reviews EEO laws, regulations, guidance, and recent trends.

Condenses MSPB and Federal Circuit decisions from 1999 through early 2020 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.

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