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Dewey Publications Inc.
News and Case Alert
Issue #3-2
In this issue...
Get Updated with Principles of Arbitration
Aguzie is Decided
MSPB Charges and Penalties
Changes in Authority Law Governing Negotiability Law
MSPB Calls For Amicus Briefs in Denton v. USDA

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MSPB Charges & Penalties
By: Fowler & Vitaro
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ISBN: 1-934651-42-7
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MSPB Case Summaries
By: Broida & Davis
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ISBN: 1-934651-47-8
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Consolidated Federal Sector EEO Update 2004-2011
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Labor Arbitration Practice for the Federal Sector
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ISBN: 1-934651-43-5
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Get Updated with Principles of Arbitration


The second edition of Dewey's popular Principles of Federal Sector Arbitration Law is available covering awards from 1999 to October of 2010.

2011 ACSLS Guide Information


A Guide to MSPB Law & Practice
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A Guide to FLRA Law and Practice
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Dewey's FREE MONTHLY "News and Case Alert" Email is our way of keeping our customers up-to-date with the latest federal sector employment and labor laws, cases and news. Articles cover topics from discrimination, merit systems principles, labor and arbitration, and everything in between. Also included are new book announcements, notification of sales, special coupon codes, and book recommendations based on the issue's articles. We will never spam or give out your email address. Unsubscribe at any time by clicking the SafeUnsubscribe link at the bottom of every email. If you know someone who this information will be valuable to, please use the forward email link at the bottom of the email. Thank you.

Aguzie is Decided

In this appeal, the Board addressed the issue of "whether, when the Office of Personnel Management (OPM) directs an agency to remove a tenured employee pursuant to its authority under 5 C.F.R. part 731, the removal action is subject to the requirements of 5 U.S.C. chapter 75 subchapter II, including the Board appeal rights guaranteed under 5 U.S.C. 7513(d)." The Board answered in the affirmative.

As to "tenured employees", which the Board defined as individuals who satisfy the definition of "employee" at 5 U.S.C. § 7511(a)(1)), any OPM-directed, suitability-based removal constitutes an adverse action. As such, the appellant is entitled the commensurate Board appeal rights. The burden of proof in such cases is on OPM to demonstrate that the action meets service efficiency standards and the adverse action is subject to Douglas mitigation standards and EEO claims analysis.

Turning to the language of 5 USC 7513, the Board drew the following conclusions:

  • The OPM-directed removal of an employee pursuant to 5 CFR 731 is an action taken by an "agency." Noting that while "OPM makes the underlying decision and the role of the employing agency is essentially ministerial," it is still the employing agency that ultimately takes the action, and 7513 "does not require that agency taking the action be the same agency that makes the decision underlying the action." The Board further noted "regardless of whether a directed removal action for suitability reasons is appealable under 5 U.S.C. 7513(d), it is incumbent on OPM to support the underlying decision by a preponderance of the evidence."
  • Title 5 U.S.C. chapter 75 subchapter II covers suitability-based removals. Quoting the complete list of actions covered by 5 USC 7512 and the list of exceptions to those covered actions, the Board noted "the list [of exceptions] does not include suitability actions taken under 5 C.F.R. part 731 or any of its underlying authorities. Under canons of statutory interpretation, where a statute enumerates certain exceptions to a general rule, other unenumerated exceptions are excluded....Applying that principle, we may readily infer that OPM-directed removals under 5 C.F.R. part 731 are among the actions covered by the subchapter."
  • The appellants are employees for purposes of 5 U.S.C. chapter 75 subchapter II. The parties did not dispute that the appellants were "employees."
  • The OPM-directed removal of a tenured employee is "taken under" 5 U.S.C. 7513 and therefore appealable under 5 U.S.C. 7513(d). "[A]lthough Congress clearly established that OPM is the primary authority in most matters involving the civil service, it also reserved certain matters for the Board or the Special Counsel, and it denied OPM authority over those matters. Congress explicitly gave the Board authority to adjudicate appeals involving the removal of employees under chapter 75. 5 U.S.C. 7512(1), 7513(d). We therefore find that although OPM has authority to prescribe regulations establishing how agencies may take an action under chapter 75, 5 U.S.C. 7513 (a), OPM lacks authority to prescribe regulations that remove such actions from the Board's jurisdiction or otherwise inhibit the Board's full adjudication of appeals arising from such actions."
For more discussion on Aguzie and OPM suitability determinations, see Peter Broida's A Guide to MPSB Law and Practice (2011) and Peter Broida and Natania Davis' MSPB Case Summaries (2011) both due April 2011.

NOTHING IS MORE IMPORTANT
THAN THE AGENCY CHARGE.

IT IS THE DRIVING FORCE
IN AN ADVERSE ACTION.

The Fourth Edition of Fowler and Vitaro's popular MSPB Charges and Penalties: A Charging Manual is available for immediate shipping!

Appellants never win adverse actions. Agencies lose them. Step-by-step and charge-by-charge, this book discusses the intricacies and technicalities of charging, including the indefinite suspension charge; how to get the charge right; and how to find the charge's soft spots. This expanded fourth edition is a must-have and must-read, featuring new chapters, more checklists, and more charges. New features include: best practice guidance, popular misconceptions, power tips for appellants and agencies, common agency and appellant pitfalls, and agency and appellant's missed opportunities.

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Changes in Authority Law
Governing Negotiability Law

In Dewey's News and Case Alert #2-9, we reported the Authority's abandonment of the "excessive interference" standard and return to the "abrogation" standard as it relates to cases involving evaluation awards challenged as violations of management rights under § 7106(b)(3). EPA and AFGE Council 238, 65 FLRA 113 (2010). Recently, the Authority similarly revised its thinking with regard to negotiability law when it altered course and determined that it would apply the "abrogation" rather than "excessive interference" test in reviewing an agency head's disapproval of a provision based on a management rights objection. NTEU and Dept. of Treasury, Bureau of Public Debt, 65 FLRA 509 (2011).

At issue were provisions, agreed upon by the parties, but disapproved by the agency head, concerning the establishment and communication of performance expectations as a condition of employee responsibility for meeting those performance expectations during details. The provisions, found negotiable, served as the vehicle for transforming the Authority's negotiability analysis. The Authority held:

  1. "The provisions affect management's rights to direct employees and assign work. ...Here, the provisions would prohibit the Agency from holding an employee responsible for his or her performance expectations if those expectations have not been communicated to the employee in writing. [As such], we find that the provisions affect management's rights to direct employees and assign work under § 7106(a)(2)(A) and (B) of the Statute."
  2. "For the following reasons, we reexamine and revise the standard that we apply in the negotiability context for determining whether an agreed-upon contract provision constitutes an appropriate arrangement within the meaning of § 7106(b)(3) of the Statute. Specifically, we will no longer assess whether an arrangement is appropriate by applying an excessive interference standard. Rather, we will assess whether the provision "abrogates"-i.e., waives-the management right(s) that the provision affects." The Authority reasoned:
    • "[A]lthough a particular proposal may be outside the duty to bargain because it is contrary to law, rule, or regulation, an agreed-upon contract provision is not contrary to law, rule, or regulation merely because, at the bargaining table, it was outside the duty to bargain."
    • "[A]s a contractual arrangement that does not abrogate a management right is not contrary to § 7106 in the arbitration context...it necessarily follows that an agency head may not rely on § 7106 to disapprove such an arrangement."
    • "[T]he bargaining parties' choices can have binding effects, without regard to the potential concerns of agency heads. Of course, a contract that becomes effective in these circumstances does so 'subject to the provisions of [the Statute] and any other applicable law, rule, or regulation.' 5 U.S.C. § 7114(c)(3). In that situation, as noted above, the provision is enforceable in arbitration unless it abrogates a management right."
For Dewey labor relations titles, see A Guide to Principles of Federal Sector Arbitration, by Broida and Davis, A Guide to FLRA Law and Practice (2011) by Broida (expected May 2011), Collective Bargaining for the Federal Sector by Ferris and Labor Arbitration Practice for the Federal Sector by Bosland (expected April 2011).

MSPB Calls For Amicus Briefs in
Denton v. USDA, MSPB Docket Number DC-3330-09-0696-I-1

The MSPB is providing an opportunity to interested parties to file amicus briefs concerning the above captioned appeal. The questions to be resolved are:

  1. Does the Student Career Experience Program (SCEP) program violate veterans' preference rights because it allows agencies to invoke an appointing authority reserved for positions for which it is not practicable to hold a competitive examination after holding a competitive examination yielding highly-qualified preference-eligible candidates?
  2. Does the SCEP program violate veterans' preference rights because it does not require agencies to justify placement of positions in Schedule B of the excepted service?
  3. What impact, if any, does the Executive Order dated December 27, 2010, entitled "Recruiting and Hiring Students and Recent Graduates," have on the appellant's appeal or any other appeals based on the SCEP hiring occurring before Executive Order 12015 is revoked?
In its Federal Register Notice, the Board notes that the issues implicated in this case are similar to those raised in the appeals of Dean v. Office of Personnel Management and Evans v. Department of Veterans Affairs regarding the Federal Career Intern Program wherein the Board determined that the FCIP as conducted violated the appellants' veterans' preference rights. As reported in Dewey's News and Case Alert #3-1, on December 27, 2010, by Executive Order, President Obama abolished the Federal Career Intern Program and established the "Recruiting and Hiring Students and Recent Graduates" referenced in question 3 above. Executive Order 13562.

For more titles relating to veterans' preference, the VEOA, recruiting, hiring and merit principles, see A Guide to USERRA and VEOA by Joyce Kitchens and Hiring for Success by Michael Corum and Victoria G. Loufakis.
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