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News and Case Alert
Issue #6-4
TABLE OF CONTENTS

MSPB Related News


FLRA Related Decisions


Recently Published Materials From the EEOC on Background Checks and Religious Dress and Grooming Policies

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Coming Soon

 

MSPB Case Summaries



By: Broida & Davis
Price: $200.00
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Broida on MSPB Practice



By: Broida
Price: $125.00
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Edition: 1st/2014
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The Federal Supervisor's Guide to Ethics, Rules, and Responsibilities



By: Corum
Price: $65.00
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The 2014 MSPB Guide is in stock

Book in-stock, .pdf on CD and book/CD orders ship mid April

 

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



By: Broida
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Edition: 31th/2014
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The 2014 EEO Guide ships in May

 

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



By: Hadley
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Edition: 27th/2014
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The 2014 FLRA Guide ships in June

 

A Guide to Federal Labor Relations Authority Law and Practice (2014)



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New Releases



Broida on Federal Sector Administrative Advocacy



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UnCivil Servant



By: Wiley
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Edition: 3rd/2014
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Broida on Federal Sector Settlement



By: Broida
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MSPB Related News

That's all folks....The US Supreme Court Declines to Review the Federal Circuit's Holding in Kaplan v. Conyers

by Natania Davis

On Monday, the US Supreme Court denied certiorari of the Federal Circuit's holding in Kaplan v. Conyers, 733 F.3d 1148 (Fed. Cir. 2013). In that case, the Federal Circuit held that the Supreme Court's decision in Egan v. Dept. of Navy cannot be confined to security clearance determinations. Where national security is implicated, the Federal Circuit found, there is no meaningful distinction between positions requiring access to classified information and those that are designated "sensitive." The certiorari denial leaves "predictive judgments" about what positions implicate national security committed solely to agency discretion. Id. In short, agency determinations as to an employee's eligibility to hold a sensitive position are not reviewable by the Board "because it would improperly place an inconsistent burden of proof upon the government. Id. Absent Executive Order or legislative action, this is the law.

 

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

The 2014 edition of the MSPB Guide is available for purchase now with analysis of 2013 and early 2014 decisions of the MSPB and its reviewing court and major developments during 2013.

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SSA v. Shapiro CB-7521-11-0024-T-1 (Nonprecedential 3/4/2014)

by Natania Davis

In SSA v. Shapiro, CB-7521-11-0024-T-1 (Nonprecedential 3/4/2014), a, unfortunately, nonprecedential decision, the Board found allegedly deficient performance sufficient to warrant an ALJ's removal when the performance was defined in comparison to judges with similar dockets. As to the application of Goodman and kindred cases, Shapiro stated:

The respondent also claims that Administrative Law Judge Smith did not properly apply Goodman to the facts in this case. The Board held in Goodman, 19 M.S.P.R. at 330, that there is no "generic prohibition" to the filing of a charge of unacceptable performance against an administrative law judge. The Board also disagreed with the agency's view that it could not order the respondent in Goodman to take reasonable steps to improve his productivity. Id. at 331. Nevertheless, the Board explained its reasoning for finding that the agency did not prove good cause in Goodman as follows:

The Department attempted to establish good cause primarily through the introduction of a comparison, over a 2 ½ year period, of the case disposition rate of all its ALJs with the respondent's case disposition statistics. This evidence established that respondent's dispositions were approximately half of the national average. However, the Department did not establish that its statistical evidence was relevant to the determinative factual issue, which was whether respondent's performance was sufficiently below a reasonable level of productivity to warrant his removal. See Capaci v. Katz and Besthoff, Inc., 525 F. Supp. 317, 342 (E.D. La. 1981).

Id. The Board noted that, in order for it to find that Goodman's productivity was unacceptably low, it would have to infer that the nationwide average constituted a measurement, or a guide to a measurement, of reasonable productivity. Id. In this regard, it noted that "it might be reasonable to conclude that the raw statistical data introduced was meaningful to the issue of respondent's comparative productivity if the complexities presented by the mix of cases assigned to the respondent mirrored the complexities of those included in the national average." Id. at 332. The Board concluded that no evidence was offered regarding the time required to render dispositions or comparing the respondent's assignments with those included in the national average. Id.

Here, by contrast, the petitioner did introduce evidence comparing the respondent's assignments with the assignments given to other administrative law judges. Administrative Law Judge Smith found persuasive such testimonial evidence, which established that the cases assigned to the respondent were essentially the same or similar in terms of file size, complexity, legal and evidentiary and/or factual issues, and time requirements as the cases assigned to all other judges in the New York City and Region II hearing offices. Thus, this case is distinguishable from Goodman. The respondent has not shown that Administrative Law Judge Smith erred in relying upon this evidence. See Social Security Administration v. Brennan, 19 M.S.P.R. 335, 337 n.3 (if cases assigned to the respondent administrative law judge "paralleled those assigned other ALJs," the nationwide average could provide a guide for measuring reasonable productivity), clarified on other grounds, 20 M.S.P.R. 35 (1984).

The lengthy decision should be read for the Board's view of the facts relating to production. The Board also found that SSA failed to prove a proper standard and supporting evidence relating to the charge that Shapiro failed to provide timely hearings and dispositions when his performance depended, in part, upon the efforts of the staff assigned to him.

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FLRA Related Decisions

by Natania Davis

 

Dept. of Treasury, IRS v. FLRA, 739 F.3d 13 (D.C. Cir. 2014)

In Dept. of Treasury, IRS v. FLRA, the D.C. Circuit found arbitrary and unenforceable the Authority's creation of two standards-abrogation and excessive interference-to apply to the same negotiability test administered at different steps of the bargaining process. The case left intact the Authority's KANG excessive interference test for agency head review of contract provisions.

NASA, Goddard Space Flight Center, Wallops Island, VA and Walsh and AFGE, 67 FLRA No. 65 (2014)

This case involves a petition for decertification of the Exclusive Representative as the labor organization representing certain employees. The Exclusive Representative claimed that the petition was untimely because it was not filed during the open period in accordance with 7111(f)(3). Finding that the Authority has "never specifically held that the [open] period described in 7111(f)(3) of the Statue applies to decertification petitions filed by...individual[s]," the Authority granted review and ordered the parties to file briefs on the issue.

Briefs by third parties were also invited via the Federal Register. Peter Broida, author of A Guide to Federal Labor Relations Authority Law & Practice, recently submitted an amicus brief in response. Mr. Broida wrote, in part:

The Supreme Court implied that a decertification petition is precluded during the certification year, Brooks v. NLRB, 348 U.S. 96 (1954); the NLRB interprets Brooks to permit an employer to refuse to bargain during that year under unusual circumstances, such as defunctness. Rocky Mountain Phosphates, Inc., 136 NLRB 292 (1962) (Member Rodgers and Leedom dissenting). Once the union is certified and bargains a contract, the contract bar rule bars a representation petition outside the insulated period, with an exception: if the union has become defunct, the contract no longer bars a petition. Bennett Stone Co., 139 NLRB 1422 (1962); see News-Press Pub.Co., 145 NLRB 803, 804 (1964) ("Nevertheless, on the particular facts of this case, we do not believe that the Association is in fact defunct or that it will effectuate the policies of the Act to give effect to the resolution purporting to terminate the Associations' status as a labor organization.").

The approach of the NLRB and the Supreme Court has more to commend than to condemn it in the federal sector. Permitting a contract bar to preclude decertification of a defunct union serves no purpose. A defunct local can be placed into trusteeship by a national to permit representation to continue. A defunct union that is not placed into trusteeship cannot administer the contract-a condition that, at a minimum, effectively denies bargaining unit members the ability to pursue grievances to arbitration, defeating the purpose of the only statutorily-mandated provision of the federal sector labor contract.

With support of private sector precedent and with recognition of a central purpose of federal sector contracts-effective dispute resolution procedures-the Authority should permit decertification petitions to be adjudicated at times other than the open period upon a regional determination that the incumbent union is defunct.

For more on labor relations and collective bargaining, see Collective Bargaining for the Federal Sector by Ferris, Labor Relations for Supervisors and Managers by Corum, and Principles of Federal Sector Arbitration Law by Broida & Davis.

 

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Recently Published Materials From the EEOC on Background Checks and Religious Dress and Grooming Policies

by Natania Davis

 

Background Checks

The EEOC recently published technical assistance entitled "Background Checks: What Employers Need to Know." The guidance, a joint publication of the EEOC and the Federal Trade Commission, explains how the agencies' respective laws apply to background checks. The documents, one for employers and one for employees, do not introduce any new requirements, but offer "tips" on the use of background checks.

Religious Dress

On March 6, 2014, EEOC published a question-and-answer guide entitled "Religious Garb and Grooming in the Workplace: Rights and Responsibilities" with an accompanying fact sheet. The EEOC answers questions like "What is the federal law relating to religious dress and grooming in the workplace?," "What if an employer questions whether the applicant's or employee's asserted religious practice is sincerely held?," and "Can an employer exclude someone from a position becuase of discriminatory customer preference?"

The EEOC, in its press release, generally notes that "[e]mployers covered by Title VII must make exceptions to their usual rules or preferences to permit applicants and employees to follow religiously-mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer's business. When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons."

For more on EEO related topics for Representatives, see A Guide to EEO Law and Practice by Hadley, Federal Sector Sexual Harassment Law by Laws and Hadley, and Federal Sector Disability Discrimination Law Deskbook by Gilbert.

For more on EEO related topics for Supervisors, Managers, and Personnelists, see Hiring for Success by Corum and Loufakis, Surviving EEO Complaints by Tuck, and EEO and the Federal Supervisor by Corum.

 

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