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NEWS AND CASE ALERT
July 14th, 2021 | Issue #13-06
TABLE OF CONTENTS
ARTHREX REDUX
OR WHY MSPB JUDGES’ DECISIONS ARE CONSTITUTIONALLY VALID
TELEWORK NEGOTIABLE?
WHAT ABOUT THE SCOPE OF PERMISSIVE BARGAINING ANYWAY?
SUGGESTED 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.

By: Broida
Edition: 34th/2021
ISBN: 978-1-941825-86-0; 1-941825-86-9
Availability: IN-STOCK (released 6/2/2021)
The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. Major topics include jurisdiction, unit determinations and elections; labor organizations; procedures and substantive limitations on and specific applications of negotiability determinations; the Federal Service Impasses Panel; ULPs and remedies; review of arbitration awards; and administrative reconsideration and judicial review
ARTHREX REDUX
OR WHY MSPB JUDGES’ DECISIONS ARE CONSTITUTIONALLY VALID
Three branches of government are ordained by the Constitution, and then there are administrative agencies—a kind of fourth estate whose chiefs are appointed by the President, and some confirmed by the Senate, Although some of these agencies perform adjudication functions, and some do so in a manner similar to judges in federal courts, the agencies and their adjudicators are part of the Executive Branch and, so it goes, the policies made through their decisions should be subject to the ultimate control of the President who appoints and can control the administrators who run the agencies. Lucia v. SEC, 138 S.Ct. 20 (2018), was one of a number of Supreme Court decisions evaluating the sufficient of agency-head control over administrative agency adjudicators. In Lucia the dispute was over the status of SEC ALJs—one in particular, whose decision a litigant sought to overturn (and obtain another SEC hearing or reevaluation of the record). The Supreme Court determined that the SEC ALJ’s decisions were essentially administratively final (not subject to review by a presidential appointee) and that the ALJ who heard the case had not been appointed (and removable) by the President or by a delegated officer of a presidential appointee—meaning that Executive Branch policy, as defined by the Court, was being made by an official not within the control of the Chief Executive or his appointees.
Lucia was not the only Supreme Court case to delve into the validity of appointments or authority of various administrative agency adjudicators. And it would not be the most recent, for the Federal Circuit, considering a challenge to the authority of administrative patent judges of the Patent and Trademark Office in Arthrex, Inc. v. Smith & Nephew, Inc., 941 F.3d 1320 (Fed. Cir. 2019), determined that the patent judges issued essentially unreviewable decisions and that the judges were not within the control of the president or an appointee of the president because they had civil service protections. The Circuit decision traced the evolution of the litigation and the Appointments Clause of the constitution and, examining the lack of control over the patent judges (through unfettered removal processes) or the lack of direct review by USPTO officials of their decisions, determined that “the appropriate remedy to the constitutional violation is partial invalidation of the statutory limitations on the removal of APJs.” That was a startling result—especially since the APJs were not invited to intervene or, apparently, submit an amicus brief. Arthrex advanced through a rehearing process in the Circuit, and then to the Supreme Court.
At the Supreme Court, the approach was different. The Court decided that the fix for the problem was to create a right of review with the USPTO Director of APJ decisions. United States v. Arthrex, ___S.Ct.___ (June 21, 2021).
So why is this of interest? Because one or more agencies (and one or more appellants) have challenged the authority of MSPB judges to hear appeals (and issue decisions involving Executive Branch policy) based on an appointment mechanism of the judges who are protected under civil service laws as excepted service lawyers and who are not, because of the civil service protections, ala the Anthex decision in the Federal Circuit, removable at the will of the presidentially-appointed Board chair. But: and here’s the point—the decisions of MSPB AJs, whether they become final when no PFR is filed or they become filed after a PFR is denied, are by statute and regulation subject to reopening by the Board at any time—so the Board always controls the decisional process, if it decides to become involved. 5 USC 7701(e)(1)(B); 5 CFR 1201.118. The decisional review process imputed to the PTO Director by Anthrex is already extant in the Board by statute. And there should end the controversy over the constitutional authority of MSPB judges to issue decisions. It is reasonably likely that the Federal Circuit will sooner decide the issue under its mandamus or appellate authority than the Board will address the matter, given the increasing delays in the already incredibly protracted process of confirming a quorum of Board appointees necessary to issue decisions.
This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2021 and reviews EEO laws, regulations, guidance, and recent trends. Major topics include recent trends in the law; bases of discrimination; attorney fees; class actions; compensatory damages; appellate review; evidence; harassment; hearings; mixed cases; procedures; remedies; reprisal; settlement; and sexual harassment.
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. Major topics include a review of FMLA legislation, applicability of the FMLA in the federal government, coverage of employees and family members, eligibility, covered conditions, notice requirements, documentation, leave amount and scheduling, paid leave, maintenance of benefits, return to work, record-keeping, prohibited acts, enforcement and remedies, COVID-19, Families First Coronavirus Response Act, and Emergency Paid Sick Leave Act, and the interaction of FMLA with other laws.
TELEWORK NEGOTIABLE?
Just as agencies are returning employees to the office, and just as there will likely be a generation of cases addressing accommodative responsibilities for employees who cannot immediately return by reason of Covid-related illness, child care responsibilities, or care of family members, we have a decision from the D.C. Circuit considering the negotiability of labor contract provisions involving telework arrangements. FLRA’s underlying decision determined that contract requirements of telework interfered with management’s statutory right to assign work and direct employees—the reasoning being that the right to assign work includes the right to determine when the employee is required to report to a duty station. The Circuit determined that FLRA did not sufficiently explain its analysis of the proposals and how they interfered with management’s right to assign work to permit a decision from the court on negotiability. The result: a remand to FLRA to sort out a negotiability dispute that had its origin in 2017 negotiations. Stay tuned.
NTEU v. FLRA (D.C. Cir. June 22, 2021)
Federal Sector Telework is an essential handbook on telework for managers, supervisors, HR officials, and representatives of agencies and complainants. Major topics: Telework Enhancement Act of 2010, coverage, eligibility, participation, limitations, and the intersection of telework with EEO and MSPB principles.
A comprehensive examination of the arbitration process and advocacy. With discussion of strategies and practice tips, this how-to guide assists union and management advocates. Major topics include advocate selection, case investigation and evaluation, arbitrator selection, case preparation, prehearing practice, witness selection and preparation, hearing specifics: opening statements, creating a record, witness testimony, direction examination, cross-examination, exhibits, and closing arguments, and post-award practice.
WHAT ABOUT THE SCOPE OF PERMISSIVE BARGAINING ANYWAY?
President Biden’s Executive Order 14003 of January 22, 2021, directed agency heads to engage in bargaining of permissive subjects of bargaining under 5 USC 7106(b)(1). Of interest is an FLRA decision determining that a proposal is electively negotiable to continue the terms of an expired contract pending negotiation of a new contract. The law has been that in many (not all) situations contract terms continue past expiration of a contract, pending alteration by negotiation—except for permissively negotiable provisions that expire at the conclusion of a contract term (assuming the agency decides to discontinue those terms). By making extension of electively negotiable contract articles a permissive subject of bargaining, under EO 14003 a dispute over the extension becomes subject to FSIP determination rather than the otherwise unreviewable decision of the agency head.
AFGE Local 918 and DHS, Federal Protective Service,
71 FLRA 421 (July 9, 2021).
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2020. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. Major topics include the nature of arbitration, the collective bargaining agreement, arbitrability, grievances, hearings, management rights, contract interpretation, common substantive arbitration topics, settlement, remedies, counsel fee and damages.

By: Broida & Davis
Edition: 12th/2021
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. 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.
SUGGESTED READING
Good background on federal sector permissive bargaining and the evolution of the labor relations provisions of the Reform Act:
James J. Powers, Partnership Buster in the Federal Government: The Relationship Between 5 U.S.C. 7106(a) and (b)(1) [Chicago-Kent Law Review, Vol. 72, Article 8 (April 1997)]
A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2020 and a chart of significant awards. Major topics include equitable and compensatory damages, proving damages, mitigation and offset, back pay, collateral source rule, tax consequences, settlement, managing discovery, calculating damages, and attorney.
Using Board and Federal Circuit cases as examples, Charges & Penalties offers the most comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. Major topics include the basics of adverse actions and charges; causation; charge classification; specific, generic, and narrative charges; power charging; lesser-included offenses; charge interpretation; notice and due process; the conjunctive charge; indefinite suspensions and security-related charges; merging, selecting and drafting the charge; advice for proposing and deciding officials; the penalty; and charges and proof requirements.
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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 2021 and reviews EEO laws, regulations, guidance, and recent trends.

Condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.

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