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Dewey Publications Inc.
News and Case Alert
Issue #8-5
TABLE OF CONTENTS

One Ringy-Dingy


When You Can Ask


When Not to Say "No"


A Split in the Board
Loss of Condition of Employment



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One Ringy-Dingy

The agency gave an employee an oral admonishment for an argumentative phone conversation with a manager. The admonishment was documented but later reduced to a "telephone-etiquette-expectation" letter (does this happen in the private sector, too ?)), placed into the grievant's personnel file. The union took the case to an arbitrator who ruled that the agency violated its negotiated agreement by failing to conduct an investigation before issuing an admonishment. In the Authority's antediluvian style, several pages of decision accoutered with more than a hundred footnotes, the award was sustained with a modification of the remedy-limiting the arbitrator's cease and desist order to the grievant's file. Member Pizzella dissented, expressing amazement that the dispute could have reached the Authority and demurring to the arbitrator's conclusion that the etiquette letter required a formal investigation. Of the whole affair, Mr. Pizzella closed out with: "One ringy-dingy, two ringy-dingy . . ." and his customary "Thank you." Dept. Of Air Force, Joint Base Elmendorf-Richardson and AFGE Local 1101, 69 FLRA 541 (Aug. 31, 2016).

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When You Can Ask

An employee takes leave for illness, and the leave is supported by an adequate medical statement. While on leave the employee submits a doctor's recommendation that he return to work but on a reduced schedule, and the agency treated that as a request for accommodation. The agency asks for clarification of the number of hours to be worked, whether the employee sought a part-time schedule, or whether the employee wanted to charge to leave the difference between the regular workweek and the hours worked. The employee later states he will return to work full time. The agency responds that due to the nature of the employee's condition, it is concerned whether the employee can safely perform an essential job function; the agency requests that the employee's doctor provide a release detailing the employee's condition and any restrictions on his return to work. Pending receipt of the information, the employee was told he'd have to request leave or be on AWOL. The employee appealed what he contended was a constructive suspension when he was forced to use leave pending clarification of his ability to return to work. The appeal made its way to the Federal Circuit, which affirmed two elements of the analysis of Romero v. USPS, 121 MSPR 606 (2014), without considering the issue of reasonable accommodation (the Federal Circuit does not decide EEO cases: that's for district courts). The court stated that to establish a constructive suspension, the employee must show his absence was involuntary because it was caused by improper agency action; and, when an employee voluntarily takes leave, an agency may properly refuse to allow the employee to resume working if the employee does not satisfy the agency's conditions for returning to work. The employee did not prevail on appeal or in court because he did not provide the agency with the requested medical information and, as a result, failed to comply with the agency's conditions for returning to work. Rosario-Fabregas v. MSPB, Fed. Cir. 2015-3102 (Aug. 16, 2016).

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When Not to Say "No"

Remember that amendment from 2012 that makes it a prohibited personnel practice to take a personnel action against an employee for "refusing to obey an order that would require the individual to violate a law, 5 USC 2302(b)(9)(D)? The Federal Circuit said that provision will be construed by its terms, and no further-perhaps seeking to avoid an onslaught of insubordination cases. The provision does not extend license to employee to refuse to obey directives that they believe violate agency policies or regulations or operating instructions. "A law" is a law, i.e., a statute-and no more. Rainey v. MSPB, Fed. Cir. 2015-3234 (June 7, 2016).

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A Split in the Board

Loss of Condition of Employment

It could happen to you. Your job requires travel, and travel requires a government travel card issued by a financial institution. You travel, and you pay off the balance, but things go wrong despite your best intentions. A few payments are made, but late. The importunate bank, not out a penny, cancels your card. You're grounded. What about the travel? You're fired because you have to travel but need a travel card that you no longer have. A perceptive and reasonable MSPB AJ reversed the discharge of a Federal Air Marshal and mitigated to reassignment to a job not requiring the travel card at the least reduction in grade. What about those security clearance cases precluding mitigation when the employee no longer has the clearance required by the job (unless there's a nondiscretionary agency reassignment policy)? Those cases were not mentioned by the AJ; nor were they mentioned by the MSPB's decision on the agency's PFR. The Board members could not agree on a decision (we wonder who took which position and why), and the AJ's decision which was, by reason of the split decision of the Board, affirmed. Scere v. DHS, NP NY-0752-14-0157-I-1 (Sept. 9, 2016).

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