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NEWS AND CASE ALERT
December 22nd, 2021 | Issue #13-11
TABLE OF CONTENTS
FLRA GRINDS EXCEEDINGLY FINE GRIEVANCE REJECTED FOR LACK OF SIGNATURE
NO TIME FOR DAMAGES
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
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This new guide is a succinct analysis of decisions from AJs and MSPB or the Federal Circuit awarding damages in whistleblower cases. The guide includes an explanation of the Board’s authority to award damages in whistleblower cases. Each case analysis includes a description of controlling facts including the type of harm such as, pecuniary, emotional, distress, medical expenses, or losses in investments, and the amount awarded.

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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.
FLRA GRINDS EXCEEDINGLY FINE
GRIEVANCE REJECTED FOR LACK OF SIGNATURE
The contract required that a grievance contain an original signature at filing. The Agency answered the grievance and protested the deficiency. Arbitration was invoked. The arbitrator determined that the Agency waived the defect by processing the grievance through arbitration, although the Agency preserved its objection throughout the process. Weighing the equities, the arbitrator determined that the suspension grievance should be heard on the merits because public policy requires resolution rather than rejection of grievances for harmless technicalities. The arbitrator also referenced a prior arbitration award supporting his approach.
Not so fast, ruled FLRA
[T]the Arbitrator did not explain how the Agency’s actions amounted to a waiver when it had met the contractual deadline to raise the arbitrability issue. Moreover, while an arbitrator may consider prior arbitration awards, such awards are not precedential. Because the Arbitrator’s waiver finding conflicts with the plain wording of the parties’ agreement, and is not based on any findings that the Agency subsequently abandoned its objections to the grievance’s arbitrability, we conclude that his waiver finding is not a plausible interpretation of the parties’ agreement.
Lesson learned: the defense never rests. Unions risk FLRA reversal of favorable awards for minor miscues in the grievance process. Given that grievances are initiated and advanced through the grievance process by shop stewards or union officials without law degrees or much knowledge of the intricacies of FLRA law, unions need to train their corps of voluntary and elected officials to adhere to legal formalities. And agencies and the FLRA should not protest too much if the result is increased involvement of union counsel, with resultant counsel fee awards.
SSA, OGC and AFGE Council 147, 72 FLRA 554 (Dec. 13, 2021)

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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.

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Newly updated this valuable text provides comprehensive coverage of harassment law based on sex, race and color, religion, disability, national origin, age and reprisal. The history of harassment law is rooted in sexual harassment law and cases. Each chapter begins with that history and then explains what the law is today and how/if it differs for the various bases. (more details)
NO TIME FOR DAMAGES
Everyone knows that the United States cannot be sued or held liable for damages without its consent. But sometimes the circumstances seem compelling and one seeks a way to provide a deserving employee compensation without calling it damages. There’s the Back Pay Act for unwarranted reductions in pay, the civil rights and whistleblower laws, FLSA, VEOA and USERRA, but they are all of limited application in their authority to award compensation.
Seeking to remedy a nonselection for a supervisory position, successfully challenged by the grievant as resulting from improper application of procedures required under the labor contract and agency regulations, the arbitrator determined that the grievant should receive priority consideration for the next similar vacancy. Additionally, the arbitrator award back and front pay. FLRA characterized the award as based on the arbitrator’s belief that the grievant deserved compensation for the agency’s many violations of the procedures governing the selection. Agency exceptions followed.
FLRA ruled that because the grievant lost no pay—the arbitrator did not rule that the grievant would have been selected but for the procedural violations—the Back Pay Act did not apply. That Act did not authorize front pay. The monetary remedies were vacated; the priority consideration remedy was sustained.
Dept. of Army, Corpus Christi Army Depot and AFGE Local 2142, 72 FLRA 541 (Dec. 10, 2021)
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Updated with cases through mid-2021, the Disability Deskbook is an extensive compilation of cases interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations and covers all disability related topics. Major topics include who is covered under the ADA, specific impairments, major life activities, "regarded as having a disability," "qualified individual with a disability," reasonable accommodation, undue hardship, direct threat defense, and disability related inquiries. (more details)

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Written for federal supervisors and managers, a Guide to Ethics, Rules, and Responsibilities details and explains the primary rules governing ethics. Major topics include sources of ethics rules; gifts; financial conflicts; impartiality; seeking employment; misuse of position, property, time, vehicles, information; outside activities; reporting wrongdoing; social media postings; post-employment; supervisory liability; and enforcement. (more details)
Suggested Reading
No Time for Hand-Wringing: a Comment on National Weather Service Employees Organization v. FLRA
Simon X. Cao
13 Arb. L. Rev. (12-1-2021)

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Newly updated, this guide provides practice notes and examples of provisions that are grouped by settlement topics. Major settlement provision topics include access to and return of agency property and access to facilities, actions upon and consequences of breach, cancellation or rescission of action, conditions of ongoing employment, construction of agreement, disclosure and maintenance of information, enforcement, financial considerations for the appellant, future employment, introductory clauses, leave status, performance, promotion, substituted employment actions, termination of appeal, waiver of rights, and miscellaneous settlement terms.

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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.
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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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