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News and Case Alert
Issue #2-5
In this issue...
FLRA: A Year in Review
Disciplining Federal Employees by Michael Corum
MSPB: A Year in Review
MSPB: Penalty Determinations and the Mitigation Factor of Disparate Penalties
Cyber Privacy in the Workplace
FLRA Proposes Revisions to Regulations Governing Review of Arbitration Awards

FLRA: A Year in Review,
the Short Version
By Natania Davis

With the 2009 appointments of Authority Chairman Pope, General Counsel Atkins and new member DuBester, "the federal sector labor relations program is becoming positively sprightly." Peter Broida, Guide to FLRA Law and Practice (2010). April 2010 brought with it amendments to the Authority's regulations reestablishing the regional offices ability to assist in ULP settlements prior to issuance of a complaint and to establish a regulatory basis for them to assist in the resolution of disputes before a ULP is filed. Executive Order 13522, Creating Management Forums to Improve Delivery of Government Services, "makes plain the chief executive's intent to transform federal sector labor relations from reactive and litigiously combative to robustly collaborative and constructive." FLRA Guide.

Authority cases of interest from the past year include: Dept. of Treasury, IRS and NTEU Chap. 72, 64 FLRA 39 (2009) (providing a comprehensive discussion of the law governing analysis of allegations of disability discrimination, reprisal, hostile environment, and claims for compensatory damages); and NTEU and Customs Service, 64 FLRA 156 (2009) (determining that parties may bargain over exceptions to or limitations upon the "covered by" doctrine and thereby more effectively engage in mid-term bargaining on terms the parties negotiate).

These are just a small sampling of the 2009 cases and happenings impacting Authority programs and case law. Looking into the future, Peter Broida notes in the Preface of the FLRA Guide, "The year to come will be fascinating-and how often can that be said about federal sector labor relations?"


Guide to FLRA Law and Practice

All the above referenced cases and much more are detailed in Peter Broida's A Guide to FLRA Law and Practice. To stay up-to-date on all things Authority-related, get your copy today. The FLRA Guide is available now and offer comprehensive reportings of Authority and Federal Circuit cases. The FLRA Guide is unmatched in its commentary and extensive review of current FLRA case law, regulations and statutes. For each topic, it also provides a critical historical review that lends great perspective and understanding to the reader.

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  • Disciplining
    Federal
    Employees

    by Michael Corum

    Michael Corum has updated and expanded his 2003 classic, Taking Disciplinary Actions with this new handbook. As Michael Corum notes in Disciplining Federal Employees, "[w]hen disciplining employees with appeal rights, you not only have to do the right thing, you have to do things right." The book is written especially for federal supervisors who are charged with establishing and enforcing the written and unwritten rules of the workplace. Michael Corum explains to federal supervisors and managers the philosophy, structure, and detail of administering discipline in the federal service. Disciplining Federal Employees begins by leading supervisors through the four sequential decisions they must make in any disciplinary action. The book then describes how to apply these decisions to the most common disciplinary situations encountered by supervisors and managers, including insubordination and contentious conduct, alcohol and drug situations, off-duty conduct, workplace violence, and protected activity.

    (2010) Disciplining Federal Employees

    About the Author: Michael Corum is one of America's top authorities on dealing with problem employees in the federal civil service. He is the leading author of books for federal supervisors and personnel specialists, and he puts on highly acclaimed seminars for federal agencies on discipline, handling problem employees, EEO, and performance management.

    MSPB: A Year in Review, the Short Version
    By Natania Davis

    Throughout 2009 and early 2010, we here at Dewey have noted some interesting and important Board activity and cases. Susan Tsui Grundmann and Anne M. Wagner were sworn in as MSPB Chairman and Vice Chairman on November 12, 2009, joining Member Mary M. Rose. Shortly after their swearing in, Chairman Grundmann and Vice Chairman Wagner reopened, sua sponte, the McPhie Board decision in Crumpler v. Dept. of Defense, 2009 MSPB 224 (11/2/09), wherein the Board held that if an employee is determined by the agency, with due process protections, to be unable to fill a "sensitive" position even though a security clearance is not required, the agency's decision to fire the employee for that reason will not be reviewed by the Board. The new Board members vacated the McPhie decision and sent it back for reconsideration, 2009 MSPB 233 (12/18/09), because of the importance of the issues presented and the departure from precedent represented by the decision. The Board called for amicus briefs on the jurisdictional issue, but the case settled. See Dewey's News and Case Alert, #2-1 for more on Crumpler.

    Speaking of amicus briefs, see the article in this edition of the News Alert detailing another important 2009 case Aguzie v. OPM, 112 MSPR 276 (2009). Other cases of interest from the MSPB and its reviewing court include, Ryan v. Dept. of Air Force, 2009 MSPB 235 (2009) (imposing greater scrutiny of discovery rulings in IRA cases; see Dewey's News and Case Alert, #2-1 for more on Ryan); Weed v. SSA, 2010 MSPB 23 (2010) (discussing standing, PPPs, and agency official's knowledge of protected disclosures in the context of IRAs; see Dewey's News and Case Alert, #2-3 for more on Weed); Silva v. DHS, 2009 MSPB 189 (2009) (discussing standing under USSERA; see Dewey's News and Case Alert, #1-8 for more on Silva); and Marshall v. DHHS, 587 F.3d 1310 (Fed. Cir. 2009) (VEOA case wherein the Federal Circuit expanded the Board's interpretation of reconstruction remedies under 5 USC 3330c; see Dewey's News and Case Alert, #2-1 for more on Marshall).

    These are just a small sampling of the 2009 and early 2010 cases and happenings impacting MSPB case law. Looking into the future, Peter Broida notes in the Preface of the Guide, "For those extensively engaged in the analysis of federal civil service, labor relations, and EEO decisions, the next few years should be interesting as the law resonates to changes in the composition of the MSPB, FLRA, and EEOC."

    All the above referenced cases and much more are detailed in Peter Broida's A Guide to MSPB Law and Practice and MSPB Case Summaries by Broida and Davis. To stay up-to-date on all things MSPB, get your copy. Both are available now and offer comprehensive reportings of MSPB and Federal Circuit cases. The Guide is unmatched in its commentary and extensive review of current MSPB case law, regulations and statutes. For each topic, it also provides a critical historical review that lends great perspective and understanding to the reader.

    Case Summaries also reports cases from the MSPB and reviewing courts impacting Board law. Cases are reported in summary form making MSPB research and brief writing a simpler and more streamlined process. Alone, the Case Summaries compilation serves as a great point of reference for attorneys and researchers who understand the basic structure of Board caselaw and is a useful adjunct to A Guide to Merit Systems Protection Board Law and Practice by Broida.




    Broida's A Guide to MSPB
    Law and Practice
    is now available.

    Order your copy today!

    In its 27th edition, the Guide needs little introduction. This popular and encyclopedic book detailing MSPB related litigation, laws, procedure, and practice is the seminal text on this complex area of the law wherein author Peter Broida, a veteran practitioner before the Board, offers his thorough knowledge, seasoned experience, and nuanced understanding of the MSPB.


    (2010) Guide to MSPB Law and Practice


    "We at Dewey, with the benefit of a quarter century and more of reporting events and changes in these agencies' [MSPB, FLRA, and EEOC] behaviors and decisions, remain your faithful and cheerful reporter of developments. Stay with us, gentle readers."

    - Peter Broida
    Quoted from
    MSPB Guide 2010

    MSPB: Penalty Determinations and the Mitigation Factor of Disparate Penalties
    Woebcke v. DHS, ___MSPR___¶¶ 19-22, 2010 MSPB 85 (2010)

    In 2009, the Federal Circuit questioned, but did not decide, the issue of whether a disparity analysis with respect to penalty determinations can properly be confined to employees within a single chain of command. Williams v. SSA, 586 F.3d 1365 (Fed. Cir. 2009). The Williams court held that while the fact that two employees are supervised by different individuals may sometimes justify different penalties, an agency must explain how the differing chains of command would justify different penalties.

    Relying on Williams, in Woebcke v. DHS, ___MSPR___¶¶ 19-22, 2010 MSPB 85 (2010), the Board recently held that an agency must justify an apparent disparity in penalties despite a distinction in chain of command. Woebcke involved discipline of a federal air marshall in one geographic area that was apparently harsher than air marshalls who committed similar offenses in another geographical area. The Board found the AJ properly considered disparate penalties in comparison to specified employees and correctly substituted a 14-day suspension for the removal penalty:
    The administrative judge carefully considered the consistency of the penalty imposed on the appellant with the penalties imposed upon other employees for the same or a similar offense. The administrative judge found that the appellant learned through discovery that about 9 or 10 months after the appellant's misconduct, and before the agency selected the penalty for the appellant, a number of FAMs had traveled to Germany, gotten drunk and solicited prostitutes. She found the FAMs who had solicited prostitutes in Germany, who were not team leaders, had received 14-day suspensions for their misconduct based on the charges of conduct unbecoming and not being prepared for duty, which are similar to the charges of conduct unbecoming and a missed mission that the appellant received. The administrative judge noted that the agency only removed the team leader involved in the incident in Germany and removed him based on charges in addition to conduct unbecoming and not being prepared for duty. The administrative judge distinguished that case with her finding that the record established that the FAM who was removed was a team leader who had additional charges brought against him. Id. She found the appellant was not a team leader on his assignment to Hawaii.

    Under the circumstances of this case, the appellant has raised an allegation of disparate penalties in comparison to specified employees and the agency has failed to prove a legitimate reason for the difference in treatment by a preponderance of the evidence. See Lewis, 111 M.S.P.R. 388, ¶ 8. Further, the administrative judge's consideration of the consistency of the penalty with those imposed upon other employees from another office is consistent with the recent decision of the U.S. Court of Appeals for the Federal Circuit in Williams v. Social Security Administration, 586 F. 3d 1365 (Fed. Cir. 2009). In that decision, the court held that, although the fact that two employees are supervised by different individuals may sometimes justify different penalties, an agency must explain why differing chains of command would justify different penalties. Williams, 586 F.3d at 1368. The court's finding specifically criticized the finding by the administrative judge deciding Williams's appeal that treating employees disparately is not relevant when the employees are in different chains of command. Id. Thus, the administrative judge here properly considered disparate penalties in comparison to specified employees and correctly substituted a 14-day suspension for the removal penalty.
    For more discussion on discipline, see Corum's Disciplining Federal Employees and Adverse Actions and MSPB Charges and Penalties by Fowler and Vitaro.

    Cyber Privacy in the Workplace:
    When an Employee's Private Information is Stored On an Employer's Work-Issued Computer, Whose Interest is More Compelling?

    Stengart v. Loving Care Agency, Inc., A-16 September Term 2009 (NJ March 30, 2010)

    In Stengart v. Loving, the NJ Supreme Court assessed the competing interests of an employee's expectation of privacy when communicating with her attorney on a work issued computer from a password protected e-mail service and her employer's right to review any information contained on the equipment it owns. While not binding in the federal employment context, this decision provides some useful guidance to federal agency attorneys, personnel specialists, supervisors and employees because, let's face it, everyone who has access to the Internet at work has used it for non-work related matters. At this point, the question is no longer whether it is happening, but how often. This case is especially interesting in the federal employment context because it is commonplace for an employee to continue in the employ of the federal government while, at the same time, pursuing a law suit against it. It is not a stretch to imagine that an employee with an EEO or MSPB complaint might even use their work issued computers to create, store and transmit information and documents related to their administrative appeal. As Chief Justice Rabner in Stengart noted at the beginning of his opinion:
    In the past twenty years, businesses and private citizens alike have embraced the use of computers, electronic communication devices, the Internet, and e-mail. As those and other forms of technology evolve, the line separating business from personal activities can easily blur.

    In the modern workplace, for example, occasional, personal use of the Internet is commonplace. Yet that simple act can raise complex issues about an employer's monitoring of the workplace and an employee's reasonable expectation of privacy.
    Stengart used her work issued computer to exchange e-mails with her attorney using her personal, password protected, web-based e-mail account. After she filed a discrimination suit against her employer, Loving Care Agency Inc., Loving hired a computer forensic expert to recover files stored on Stengart's computer including e-mails, which were automatically saved to the hard drive. Loving used this information in discovery. Stengart's attorney demanded that the communications were privileged, but Loving maintained that, because the e-mails were stored on its computer, Loving had the right to review them. Loving noted its policy reserving to it the "right to review, audit, intercept, access and disclose all matters on the company's media systems and services at any time, with or without notice," which, according to the policy, included e-mail, internet use and communication and computer files. While the policy allowed for "occasional personal use", the policy further expressly noted that "such communications are not to be considered private or personal to any individual employee." Based on that policy, Loving argued, Stengart either prevented any attorney-client privilege from attaching or waived the privilege by voluntarily subjecting her e-mails to company scrutiny. Stengart maintained that she had a reasonable expectation of privacy as evidenced by the legend appearing at the end of her attorney's correspondence noting that the information contained therein was privileged and because she took great care to not store the password to her e-mail account on the work issued computer.

    The court noted the interests at work: "Our analysis draws on two principal areas: the adequacy of the notice provided by the Policy and the important public policy concerns raised by the attorney-client privilege. Both inform the reasonableness of an employee's expectation of privacy in this matter." Noting that Loving's policy did not warn employees that the contents of their e-mails are stored on a hard drive and that the policy allows for some amount of personal use, the court concluded that the scope of Loving's policy was unclear. The court also noted that Stengart "took reasonable steps to keep discussions with her attorney confidential: she elected not to use the company e-mail system and relied on a personal, password-protected, web-based account instead. She also did not save the password on her laptop or share it in some other way with Loving Care." Coupled with the legend noting privilege at the end of the e-mails, the court found all these factors evidenced Stengart's intent to protect the information and a subjective expectation that the information would remain private. Loving's policy, the court found, was dwarfed by the importance of maintaining the attorney client privilege. The court also noted, however, the limitation of its holding:
    Our conclusion that Stengart had an expectation of privacy in e-mails with her lawyer does not mean that employers cannot monitor or regulate the use of workplace computers. Companies can adopt lawful policies relating to computer use to protect the assets, reputation, and productivity of a business and to ensure compliance with legitimate corporate policies. And employers can enforce such policies. They may discipline employees and, when appropriate, terminate them, for violating proper workplace rules that are not inconsistent with a clear mandate of public policy. See Hennessey, supra, 129 N.J. at 99-100; Woolley v. Hoffman-LaRoche, Inc., 99 N.J. 284, 290-92 (1985); Pierce v. Ortho Pharm. Corp., 84 N.J. 58, 72-73 (1980). For example, an employee who spends long stretches of the workday getting personal, confidential legal advice from a private lawyer may be disciplined for violating a policy permitting only occasional personal use of the Internet. But employers have no need or basis to read the specific contents of personal, privileged, attorney-client communications in order to enforce corporate policy. Because of the important public policy concerns underlying the attorney-client privilege, even a more clearly written company manual - that is, a policy that banned all personal computer use and provided unambiguous notice that an employer could retrieve and read an employee's attorney-client communications, if accessed on a personal, password-protected e-mail account using the company's computer system - would not be enforceable.
    It is also interesting to note that the court remanded the case for the trial court to decide whether the imposition of sanctions against Loving's attorney for having accessed and used the information contained in the privileged communications was appropriate.

    For more discussion on conducting inquiries and litigation techniques for the MSPB and EEOC, see Conducting Misconduct Inquiries Vitaro, Goodfriend and Gilbert, Guide to MSPB Law and Practice by Broida and EEO Law and Practice by Hadley.

    FLRA Proposes Revisions to Regulations Governing Review of Arbitration Awards

    The FLRA recently proposed revisions to its regulations regarding the review of arbitration awards. See 75 Fed. Reg. 22540. "This is a significant step in the FLRA's initiative to both review and revise the FLRA's arbitration regulations and create an arbitration education program -- including training sessions and tools -- to make arbitration case processing more effective and efficient." FLRA Press Release: The FLRA Proposes Revisions to Its Arbitration Regulations to Improve and Expedite the Review of Arbitration Awards (April 29, 2010).

    The proposed revisions include:
    • "Changing the Authority's existing practice for calculating the date for filing timely exceptions, so that the thirty-day period begins on the day after, not the day of, service of the arbitration award;
    • Clarifying how the date of service of an arbitrator's award is determined;
    • Clarifying the information and documents that must be filed with exceptions and oppositions;
    • Clarifying existing grounds for review of an arbitration award and the consequence of failing to raise an existing ground;
    • Adding an option to request an expedited decision from the Authority in certain arbitration cases that do not involve unfair labor practices;
    • Adding an option to request voluntary alternative dispute resolution services;
    • Providing various methods of resolving unclear disputes or records; and
    • Clarifying the issues that must be raised before an arbitrator in order to be considered by the Authority."
    Comments to the proposed regulations must be received on or before June 1, 2010. For details and the full text of the proposed revisions, visit http://www.flra.gov/webfm_send/260.

    Peter Broida recently registered his comments on the proposed revisions. They appear below.

    Chief, Case Intake and Publication Office
    Federal Labor Relations Authority
    Suite 2001400 K St. NW.
    Washington DC 20424 - 0001

    Re: Comments on Proposed Rulemaking
    Arbitration Regulations
    Federal Register Notice of April 29, 2010

    Gentlemen:

    My comments on the proposed regulatory changes follow.

    2425.2(b): Timeliness
    Although the additional detail concerning the calculation of the period for filing exceptions is useful, it is not complete. One of the problems encountered by overseas organizations, both agencies and unions, has been slow delivery of mailed arbitration awards. Timeliness for parties who are overseas should he be calculated from a receipt rather than a mailing date, and the receipt they can be established by an affidavit or sworn declaration. This approach would avoid the artificial constructs of mailing dates established by case such as INS and AFGE Local 1917, 33 FLRA 885 (1980).

    2425.6: Grounds for Review
    The Authority should make plain that no exception to be based on an argument or claim not advanced to the arbitrator unless the arbitrator's award initially injects the basis for the exception.

    2425.7 Short Form Decisions
    Although much can be said for expedition of the decisional process by the Authority, it must be recognized that Authority decisions on arbitration cases may be subject to further review, for example, by the Equal Employment Opportunity Commission. For that reason, if there is a claim involving violation of one of the civil rights statutes, the disposition of the case should not be subject to a short form decision.

    I thank you for the opportunity to provide comment.

    Yours very truly,

    Peter B. Broida

    For more discussion on the Authority and other labor relations topics, see Guide to FLRA Law and Practice by Broida and Labor Relations for Supervisors and Managers by Corum.
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