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Dewey Publications Inc.
News and Case Alert
Issue #2-9
In this issue...
Selected Dewey Titles On Sale
Surviving EEO Complaints
Changes in Authority Law Governing the Review of Arbitration Awards
When the Goal of a Settlement Cannot Be Achieved, the Settlement Agreement Must be Set Aside
Senate Passes Telework Bill with Changes by Unanimous Consent
MSPB Entertains First Oral Arguments in 27 Years:
FLRA's Arbitration Training

Select Dewey Titles
On Sale
(Sale ends 10/30/10)
($80 off the following title)

Senior Executive Service Legal Guide
by Broida and Davis
Price: $160 On Sale! $80
A review of the laws, regulations, statutes and caselaw governing the federal government's Senior Executive Service. A bibliography and reference section is included.


($67 off the following titles)

Federal Sector Disability Discrimination Law Deskbook
by Gilbert
OR
A Guide to Federal Sector Disability Discrimination Law and Practice
by Hadley
Price: $135 On Sale! $67
Both books are easy reads and excellent resources for anyone dealing with federal disability discrimination law.

($50 off the following titles)

Best of the Board
by Broida
Price: $100 On Sale! $50
Ever feel overwhelmed by the breadth of MSPB law? Just need the black letter and seminal cases to get you through? New to the practice? Best of the Board is the book for you. This short read reviews the steps of the Board appellate process and seminal Board and Federal Circuit cases from 1978 to the present and is a must have basic reference for agency and employee representatives alike.


Best of the Commission
by Hadley
Price: $100 On Sale! $50
The EEO equivalent to Best of the Board, this book is an indispensable guide for any EEO representative, attorney, or specialist. The text explores the development of federal sector EEO law through landmark decisions of the Commission and the Supreme Court.


EEO Discovery Forms
by Hadley and Fowler
OR
MSPB Discovery Forms
by Broida
Price: $100 On Sale! $50
Fully develop the agency's defenses to EEO claims and MSPB appeals by maximizing discovery with the use of sample interrogatories, document requests, instructions, and definitions patterned after actual cases.


Settlement Forms for MSPB and EEOC
by Broida
Price: $100 On Sale! $50
This handbook offers suggestions, strategies, explanations, and templates for those drafting settlement agreements. Topics include back pay, training, suspensions, waivers, future employment, promotions, leave of all types, zipper clauses and more.

($40 off the following titles)

Crafting Durable Settlement Agreements
by Tuck
Price: $80 On Sale! $40
Helpful, practical, and thorough, this handbook is perfect for specialists and representatives negotiating settlement agreements. The text explores and explains ways to achieve the most durable agreements from pre-settlement negotiations through enforcement.


Motions Practice
by Hadley and Tuck
Price: $80 On Sale! $40
Prehearing and post-hearing motions, as well as rules of motion practice are studied in this practical and helpful guidebook.

($27 off the following title)

Guide to USERRA and VEOA
by Tuck
Price: $55 On Sale! $27
This title serves as an introductory guide to the various rights afforded under the USERRA and the VEOA, with an explanation of the laws and responsibilities of federal supervisors.

($20 off the following titles)

The Advocate's Practical Guide to Using Mediation
by Settle
Price: $40 On Sale! $20
A "how-to" approach to mediation covering analysis of the viability of mediation in a given case to writing the agreement and all topics in between.


Discovery Practice
before the MSPB

by Tuck
Price: $40 On Sale! $20
This is the ultimate guide to discovery before the MSPB, and includes samples of discovery materials, a detailed examination of discovery procedure, relevant case citations, MSPB regulations, and more, to help maximize discovery and better prepare for litigation.

($15 off the following title)

Effective Advocacy in Arbitration
by Cohen
Price: $30 On Sale! $15
From a seasoned arbitrator comes a readable, practical, and concise overview of arbitration. From effective preparation of grievances to the hearing itself, and all the details in between, this guide teaches beginner and veteran advocates alike how to be effective in arbitration.

NEW RELEASE!

For Federal Manager and Supervisors and those that advise them. Sarah Tuck has updated this popular handbook with discussion of topics including the Americans with Disabilities Act Amendment Act of 2008, the Lilly Ledbetter Fair Pay Act, and the Genetic Information Nondiscrimination Act. In its Third Edition, Surviving EEO Complaints expands on harassment law with scenarios on each protected basis, provides more tips on how to communicate better to reduce complaints, and provides additional information on what expect during the hearing process. Remaining true to its title, this edition helps managers and supervisors navigate the tricky waters of EEO complaints and counsels managers on how to constructively deal with the process.

(2010) Surviving EEO Complaints

Since a manager's success or failure may depend on his or her understanding of the EEO process and how to best avoid findings of discrimination, this invaluable handbook should be on every manager's desk.

Sarah Tuck is a Supervisory Litigation Consultant with a federal agency and a long-time and popular Dewey author. Other titles by Ms. Tuck include Crafting Durable Settlement Agreements, Motions Practice Before the MSPB and EEOC and Discovery Practice Before the MSPB.

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Dewey Category and SubCategory Links...

2010 AMERICAN CIVIL SERVICE LAW SERIES

A Guide to MSPB Law and Practice
By: Broida
Price: $525
Sku: 10MSPB
Edition: 27th/2010

A Guide to FLRA Law and Practice
By: Broida
Price: $430.00
Sku: 10FLRA
Edition: 23rd/2010

A Guide to EEO Law and Practice
By: Hadley
Price: $525
Sku: 10EEO
Edition: 23rd/2010



PREORDER THE 2011 EDITIONS!
(ships spring 2011)

A Guide to MSPB Law and Practice
By: Broida
Price: $530.00
Sku: 11MSPB
Edition: 28th/2011
Expected Availability: April 2011

A Guide to FLRA Law and Practice
By: Broida
Price: $430.00
Sku: 11EEO
Edition: 24th/2011
Expected Availability: May 2011

A Guide to EEO Law and Practice
By: Hadley
Price: $530.00
Sku: 11EEO
Edition: 24th/2011
Expected Availability: June 2011
"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

Changes in Authority Law Governing the Review of Arbitration Awards
by Natania Davis


The FLRA issued two recent decisions substantially revising pre-existing law governing the review of arbitration decisions. Both are reviewed below.

EPA and AFGE Council 238, 65 FLRA 113 (2010)

In cases involving evaluation awards challenged as violations of management rights under § 7106(b)(3), the Authority recently abandoned the excessive interference standard and returned to the "abrogation" standard. EPA and AFGE Council 238, 65 FLRA 113, 113-20 (2010).

The parties negotiated an agreement establishing a national coordinator and local coordinators who process employees' reasonable accommodation requests. Under the agreement, the national coordinator could not delegate the duty of reviewing medical information to a local coordinator without the prior consent of the affected employee. The agency failed, however, to complete the review of the agreement within thirty days of its submission to the agency head, and the agreement went into effect. The agency, nevertheless, transferred medical files to local coordinators in violation of the agreement. The union grieved, the parties did not resolve the grievance and the matter was submitted to arbitration. The arbitrator found that the parties "voluntarily engaged in an appropriate agreement," on a permissive subject of bargaining, the agency could not declare the agreement unlawful because the agency head failed to timely disapprove the agreement and the agency violated the agreement by transferring employees' medical files.

On exception to the Authority, the agency argued that it could challenge the legality of the agreement even though the agency-head's review was untimely and that the award was contrary to the agency's right to assign work under § 7106(a)(2)(B). To fast-forward through what is a fairly lengthy Authority opinion and what is becoming a similarly lengthy article, the Authority found that the agency could challenge the enforceability of the agreement and the award was not contrary to § 7106(a)(2)(B) of the statute. In so doing, the Authority tested the "excessive interference" against the "abrogation" standard (that is, assessing whether the arrangement abrogates - i.e., waives - management rights) to determine the appropriate standard to use in proceedings reviewing arbitration awards. Reviewing the original rationale for each standard, the Authority found the abrogation standard more persuasive for the following reasons:

1. The statute is silent as to the standard to be used in determining whether an award is contrary to § 7106 and, as a result, contrary to law under § 7122(a)(1).

2. "[T]he negotiability and arbitration contexts are different in ways that warrant different analyses. In the negotiability context, where parties disagree over whether a proposal is within the duty to bargain under § 7106(b)(3), it is necessary that the Authority balance the competing burdens on management's rights against the benefits provided employees. See NAIL, 64 FLRA at 1197. By contrast, in the arbitration context, bargaining has concluded and it is reasonable to conclude that the parties have balanced the burdens and benefits themselves."

3. "[T]he Statute recognizes that agency management is permitted to agree to a broader range of matters than those strictly within its duty to bargain. No basis is provided to conclude that the situation is any different when management rights under § 7106(a) are involved. Accordingly, short of waiver, agency management is permitted to agree to proposals affecting its management rights."

4. "Deference to parties' bargaining choices is consistent with the statutory 'policies of: (1) promoting collective bargaining and the negotiation of collective bargaining agreements; and (2) enabling parties to rely on the agreements that they reach, once they have reached them.'"

FDIC and NTEU Chapter 273, 65 FLRA 102 (2010)

In another decision involving management's right to assign work and the results of an award nomination, the Authority issued its decision in FDIC and NTEU Chapter 273, 65 FLRA 102 (2010), wherein the Authority eliminated Prong II of the BEP test - otherwise known as the reconstruction prong, which focuses on whether the arbitrator's remedy reflects a reconstruction of what management would have done if management had not violated the law or the contractual provision at issue. After tracing the origins and development of the law and continuing concerns about grievance arbitration's efficacy leading to criticism of the Authority's reconstruction precedent, the Authority concluded:

[W]e determine that [prong II] is not required by the Statute and, indeed, unduly limits the appropriate remedial authority of arbitrators. It is sufficient that an arbitrator's award that affects management rights under § 7106(a) of the Statute provides a remedy for a violation of either an applicable law, within the meaning of § 7106(a)(2) of the Statute, or a contract provision that was negotiated pursuant to § 7106(b) of the Statute.

...

Rather, subject to any specific limitations set forth in the pertinent contract and to the requirement that an award provide a remedy for a properly negotiated contract provision, an arbitrator enjoys broad discretion to remedy a meritorious grievance even if the remedy affects management rights under § 7106(a). Exercise of this broad remedial discretion effectuates § 7106(a)'s explicit direction that management rights set forth in § 7106(a) are "subject to" provisions bargained under § 7106(b), and that "nothing in" § 7106 shall preclude the parties from negotiating such provisions. 5 U.S.C. § 7106(b). This broad remedial discretion exists even if, due to insufficient record evidence or other reasons, the arbitrator does not "reconstruct" what management would have done but for the legal or contract violation.

The decision gives arbitrators free reign to develop remedies "reasonably related to the negotiated provisions at issue and the harm being remedied" without the necessity of stating what management would have done absent the violation.

For Dewey labor relations titles, see A Guide to FLRA Law and Practice by Broida, Collective Bargaining for the Federal Sector by Ferris and A Guide to Principles of Federal Sector Arbitration by Broida and Davis.

When the Goal of a Settlement Cannot Be Achieved, the Settlement Agreement Must be Set Aside
Vance v. Dept. of Interior, ___MSPR___, 2010 MSPB 201 (2010)
In Vance v. Dept. of Interior, ___ MSPR ___, 2010 MSPB 201 (2010), the agency removed Vance for credit card misuse. On appeal, the agency entered into a "clean paper" settlement, and Vance agreed to resign. Vance filed a petition for enforcement alleging the agency's breach of the agreement for, among other things, a web posting by the agency's inspector general's office disclosing Vance's removal and charges against him. The AJ denied Vance's PfE because the posting occurred prior to the date of the parties' agreement.

On petition for review, the Board disagreed. Extending the reasoning of Pagan v. VA, 170 F.3d 1368 (Fed. Cir. 1999) and kindred cases, the Board set aside the "clean paper" settlement on a theory of mutual mistake or, alternatively and possibly lack of good faith bargaining. Noting, however, that the IG's posting did not violate the agreement, the Board held:

Because the agency's Office of the Inspector General had already published the details of the appellant's removal at the time the parties executed their settlement agreement, the goal of that agreement, a clean employment record for the appellant, was not possible.

The Board set aside the agreement and remanded the case for Vance to decide whether he wished to accept the agreement notwithstanding the IG's posting, re-enter settlement negotiations with the agency or reinstate his appeal.

For more titles discussing settlement negotiations and provisions, see Crafting Durable Settlement Agreements by Tuck, Settling Disputes by Corum, Settlement Forms for MSPB and EEOC by Broida and The Advocate's Practical Guide to Using Mediation by Settle.

Senate Passes Telework Bill with Changes by Unanimous Consent
by Natania Davis

As reported in News Alert #2-7, on July 14, 2010, the House of Representatives passed the "Telework Improvements Act of 2010." The Senate passed the bill on September 29 with changes by unanimous consent. Under the Act (H.R. 1722), within 180 days of its enactment, the head of each executive agency must establish a telework policy, determine the eligibility of all employees to participate in telework, and notify each employee of his/her eligibility for same. Development of those policies will be in consultation with the Office of Personnel Management.

Limitations on telework eligibility include where "the employee has been officially disciplined for being absent without permission for more than 5 days in any calendar year" or "the employee has been officially disciplined for violations of subpart G of the Standards of Ethical Conduct for Employees of the Executive Branch for viewing, downloading, or exchanging pornography, including child pornography, on a Federal Government computer or while performing official Federal Government duties." Other exceptions to eligibility include employees whose official duties require on a daily basis "direct handling of secure materials determined to be inappropriate for telework" and "on-site activity that cannot be handled remotely or at an alternate worksite."

It is expected that the bill will increase competitiveness with the private sector, save money, reduce energy consumption and traffic congestion, bolster the productivity of the federal workforce, and improve emergency preparedness.

With changes made by the Senate, the bill will now return to the House for vote and then to the President for signature.

Associated links: http://www.telework.gov

For Dewey titles related to this and other HR topics, see Managing Employee's Time and Supervising Federal Employees by Corum and Administration of Leave and Medical Document Requests by Laws.

MSPB Entertains First
Oral Arguments in 27 Years:

Conyers v. DoD, Northover v. DoD
and Aguzie v. OPM

On September 21, 2010, for the first time in 27 years, the Board entertained oral arguments. Conyers v. DoD and Northover v. DoD involved the question of

whether, pursuant to 5 C.F.R. part 732, the rule in Department of the Navy v. Egan, 484 U.S. 518, 530-31 (1988), limiting the scope of MSPB review of an adverse action based on the revocation of a security clearance, also applies to an adverse action involving an employee in a "non-critical sensitive" position due to the employee having been denied continued eligibility for employment in a sensitive position.

The briefs submitted by the parties and the amici curiae, as well as OPM's advisory opinion and transcripts of the oral argument are available for viewing on the MSPB's website at http://www.mspb.gov/oralarguments and makes for interesting reading. Oral arguments on Aguzie v. OPM, 112 MSPR 276 (2009) are scheduled to be heard at 10:00 am on October 18, 2010, US Court of Appeals for the Federal Circuit, Room 201, 717 Madison Place, N.W., Washington, D.C. The issue for discussion is:

When the Office of Personnel Management (OPM) directs an agency to separate a tenured employee for suitability reasons, must the Board consider a subsequent appeal under 5 C.F.R. part 731 as contemplated therein, or should the Board instead consider the appeal under 5 U.S.C. chapter 75, given that the scope of a chapter 75 appeal is broader than a part 731 appeal and that OPM generally lacks authority to issue regulations limiting statutory rights?

The briefs submitted by the parties and the amici curiae are available for viewing on the MSPB's website at http://www.mspb.gov/oralarguments. For more on the 2009 Augzie decision see Dewey's News and Case Alert #1-8.

For titles on Board law and procedure, see MSPB Case Summaries by Broida and Davis, MSPB Guide to Law and Practice by Broida and MSPB Basics by Broida.

FLRA's Arbitration Training

The Authority recently announced its second round of "comprehensive arbitration training" to be held in DC, January 19-20, 2011. The program will address procedural and substantive topics related to the processing of arbitration awards and follows the October 1, 2010 revisions to the FLRA's regulations concerning the review of arbitration awards. For more on the training program visit http://www.flra.gov/webfm_send/342



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