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Dewey Publications Inc.
News and Case Alert
Issue #11-6
TABLE OF CONTENTS


FEDERAL CIRCUIT

TIME-SERVED SUSPENSIONS REDUX




FLRA

ELECTIONS OF REMEDIES EEO OR GRIEVANCE PROCESSES




FLRA

AGENCY MAY REQUIRE DETAILED SUPPORT FOR OFFICIAL TIME REQUEST



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FEDERAL CIRCUIT

TIME-SERVED SUSPENSIONS REDUX

Once more to the mat. The Federal Circuit revisited the practice of arbitrators mitigating removals to time-served suspensions, that is, returning the grievant to work but suspending the grievant from the date of the removal to the date of the arbitrator's decision (award) directing reinstatement. Past decisions of the court remanded cases to arbitrators to articulate the basis for a penalty when no reason was given for determining the length of a suspension other than the date of the arbitrator's award. Greenstreet v. SSA, 543 F.3d 705 (Fed. Cir. 2008), permitted a time-served suspension when the arbitrator articulated the basis for its imposition. Borza v. Dept. of Commerce, Fed. Cir. 2018-1873 (Fed. Cir. May 29, 2019), remanded the case to an arbitrator whose award imposed what amounted to a time-served suspension, who articulated a Douglas analysis in deciding to mitigate a penalty, but who did not link that analysis with the duration of the suspension: "In this case, however, a gap exists in the arbitrator's reasoning, and it should not be minimized. Simply concluding, without explanation, that 561 days is the appropriate length for Ms. Borza's suspension is inadequate. She is entitled to know why."



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FLRA

ELECTIONS OF REMEDIES EEO OR GRIEVANCE PROCESSES

Reinforcing the view of the current FLRA majority that grievances should not be used to duplicate claims for relief under other civil service systems, SSA OFA and IFPTE, AALJs, 71 FLRA 123 (2019) (Member DuBester dissenting), considered a challenge through a grievance to a reprimand when the grievance was preceded by an EEO complaint concerning a retaliatory investigation that led to the reprimand challenged through the grievance. FLRA determined that the investigation merged with the discipline as a single matter under 5 USC 7121(d):

In short, the investigation merged with the discipline as a single matter under § 7121(d). The dissent relies on a flawed rationale which forces us to make a clear distinction. Past majorities relied on interpretations of § 7121(d) and "matter" that, for all practical purposes, permitted grievants and unions to parse the fundamentally same matter into separate complaints for no other purpose than to get two bites of the proverbial apple. We do not believe that Congress intended for the application of the election-of-forum provisions - §§ 7116(d) and 7121(d) - to be based on "technical hair-splitting and artful pleading." Instead, theses statutory provisions were intended to prevent unnecessary or redundant filings on related, similar, or same matters. [footnotes omitted]

The grievance over the reprimand was barred through the EEO election of remedies. What's a complainant to do? Amend the EEO complaint when the related action occurs.


FLRA

AGENCY MAY REQUIRE DETAILED SUPPORT FOR OFFICIAL TIME REQUEST

The contract required a union official to request official time from a supervisor on a form by designating the subsection that encompassed relevant activity and providing the estimated amount of time to be used. The supervisor asked the grievant for additional information about the activities that he would perform so that the supervisor could determine whether the request was reasonable. The arbitrator determined that the union was required to provide no more information than required under the contract, which did not call for the specifics requested by the supervisor. Overturning the award, the Authority determined in DHS C&BP and AFGE National Border Patrol Council, 71 FLRA 119 (2019) (Member DuBester dissenting), that the agency had a statutory right to request the additional information and that right was not abrogated by contract:

Even when parties have agreed to procedures for requesting official time, those procedures must allow an agency to gather the information necessary to make a reasoned determination about whether to grant or deny an official-time request. Without sufficient information, an agency approving official cannot determine whether a request is consistent with § 7131(d). In this case, the Arbitrator denied the Agency's ability even to know how many hours of the grievant's official-time request would be used for each of the five broad categories of activities that the request included. We find that, under § 7131(d), the Agency must be permitted to gather the information that it needs to determine whether an official-time request is reasonable. To hold otherwise would render the act of requesting official time superfluous.

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