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Dewey Publications Inc.
News and Case Alert
Issue #6-3
TABLE OF CONTENTS

Decisions of Note
from the FLRA



EEOC Seeks to
Revise MD-110



MSPB Releases a Report on Evaluating Job Applicants


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COMING SOON!


Broida on Federal Sector Administrative Advocacy

By: Broida
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Edition: 1st/2014
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The 2014
MSPB, FLRA & EEOC GUIDES

   

 

A Guide to Merit Systems Protection Board Law and Practice (2014)



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Availability: April 2014
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A Guide to Federal Sector Equal Employment Law and Practice (2014)



By: Hadley
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Sku: 14EEO
Edition: 27th/2014
Availability: May 2014
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A Guide to Federal Labor Relations Authority Law and Practice (2014)



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UnCivil Servant



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Broida on Federal Sector Settlement



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Broida on Federal Sector Arbitration



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Broida on Federal Sector Mediation



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Representing Agencies and Complainants Before the EEOC



By: Hadley & Sumner
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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.

 

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Decisions of Note from the FLRA

by Natania Davis

 

The members of the FLRA are making the most of their recent appointments this year. Two of those decisions are briefed here.

In AFGE, Local 1367 and Dept. of Air Force, Lackland Air Force Base, TX, 67 FLRA 206 (2014), the Authority issued, sua sponte, a summary denial of an exception. The decision is so short, it is worth reproducing here.

This matter is before the Authority on an exception to an award of Arbitrator Harold E. Moore filed by the Union under § 7122(a) of the Federal Service Labor Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exception.

We have determined that this case is appropriate for issuance as an expedited, abbreviated decision under 5 C.F.R. § 2425.7.[1] Under § 7122(a) of the Statute, an award is deficient if it is contrary to any law, rule, or regulation, or it is deficient on other grounds similar to those applied by federal courts in private sector labor management relations. Upon careful consideration of the entire record in this case and Authority precedent, the Authority concludes that the award is not deficient on the ground raised in the exception and set forth in § 7122(a).[2]

[1] See 5 C.F.R. § 2425.7 ("Even absent a [party's] request, the Authority may issue expedited, abbreviated decisions in appropriate cases.").

[2] U.S. Dep't of the Navy, Naval Base, Norfolk, Va., 51 FLRA 305, 307-08 (1995) (award not deficient on ground that arbitrator exceeded his authority where excepting party does not establish that arbitrator failed to resolve an issue submitted to arbitration, resolved an issue not submitted to arbitration, disregarded specific limitations on his authority, or awarded relief to persons who were not encompassed within the grievance).

Accordingly, we deny the Union's exception.

Dept. of Justice, Federal Bureau of Prisons, Federal Transfer Center, OKC, OK and AFGE, Council of Prison Locals #33, Local 171, 67 FLRA 221 (2014), directed the agency to post physical notices of the agency's ULP and to distribute the notice via e-mail, overruling prior Authority law that held that e-mail notice was a non-traditional remedy. Agreeing that e-mail notice should be a traditional remedy, the Authority discussed its remedial powers, the differences between traditional and nontraditional remedies, and the persuasiveness of one NLRB decision.

The Board's reasoning in J. Picini Flooring is both persuasive and relevant to the question of whether the Authority should make electronic-notice posting a standard remedy for ULPs. There is no dispute that in the federal sector, as in the private sector, there has been, and will continue to be, an increase in employee reliance on electronic communications. Thus, limiting notice postings to bulletin boards creates a risk that employees will be less likely to see those postings; making electronic-notice postings a standard remedy will help ensure that employees will be able to view the notices of ULP violations. As a result, supplementing physical notice posting with electronic notice posting can be presumed to provide a greater deterrent effect and more effectively help "recreate the conditions and relationships that would have been had there been no [ULP], as well as to effectuate the policies of the Statute, including the deterrence of future violative conduct." Moreover, the Authority can presume that distributing notices electronically will enhance the benefits provided by paper notices - distributing electronic notices by email, intranet, or internet will provide another way to inform employees that the Authority will vigorously enforce their rights under the Statute, and that the respondent recognizes and intends to fulfill its obligations under the Statute.

In addition, by the Authority holding that electronic-notice posting is a "traditional" remedy, parties will not have to spend resources litigating whether a request for electronic notice posting meets the test set forth in F.E. Warren. Moreover, because electronic notice posting is required in instances only where electronic communications are the norm, requiring electronic-notice posting will impose little to no burden on a respondent. And consistent with the Board's approach, disputes as to whether the respondent customarily uses electronic means to communicate with employees - as well as other issues regarding a remedy's implementation - can be addressed at the compliance stage of ULP proceedings.

For more on the FLRA and related topics, see Principles of Federal Sector Arbitration Law by Broida and Davis and its companion training course, Broida on Federal Sector Arbitration, Collective Bargaining Law for the Federal Sector by Ferris, and Labor Relations for Supervisors and Managers by Corum.

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EEOC Seeks to Revise MD-110

by Natania Davis

 

On Monday, the EEOC released a draft "Revised EEO Management Directive 110" for public comment. Management Directive 110, or MD-110, sets forth EEO policies, procedures and guidance impacting the federal sector EEO process. The proposed revisions mark the first major changes to the Directive since 1999.  They address the newly revised 29 CFR 1614 and conflicts of interest and provide general updates and clarification of the governing policies, procedures, laws and caselaw.

Comments are due no later than April 25, 2014.

For more on EEO policies, procedures, and laws, see A Guide to Federal Sector Equal Opportunity Law & Practice and Best of the Commission by Hadley.

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MSPB Releases a Report on Evaluating Job Applicants

by Natania Davis

 

The MSPB recently released a report entitled "Evaluating Job Applicants: The Role of Training and Experience in Hiring". The stated purpose of the report is "to help Federal agencies improve how they assess candidates for Federal jobs." The report focuses on training and experience assessments and recommends the following to improve "T&E" assessments:

1) Make T&E assessments more accurate by grounding T&Es in job analysis and improving T&E questions, rating scales, scoring and applicant self assessment. "Most involve improving how applicants recall and evaluate their own training and experience."

2) Increase verification efforts of applicants' responses. The MSPB notes that "agencies need to rely on one or more strategies to corroborate a cross-section of applicants or applicant information" and recommends strategies for implementation.

3) Use present-oriented assessments to examine the candidate's current abilities and proficiencies as an alternative to using "the past as a proxy for an individual's current level of proficiency in a particular area."

4) Watch for emerging changes in work environments, policies, and practices that may impact T&E assessments. The MSPB listed "a few changes that seem possible in the near future", including social networking, sharing of documents, and changes in patterns of employment.

This publication is especially important for personnelists and specialists in Human Resources and Human Capital offices and for those they support. Pass this article with the link above along to your colleagues.

For more on hiring, see Hiring for Success by Corum. If you are on the other end of the employment spectrum with an employee, see Adverse Actions: A Guide for Federal Managers and Personnel Specialists by Corum, MSPB Charges and Penalties by Fowler and Vitaro and Uncivil Servant by Wiley.

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