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Dewey Publications Inc.
News and Case Alert
Issue #11-9
TABLE OF CONTENTS


1,020 DAYS AND 2,400 PETITIONS FOR REVIEW



VA WHISTLEBLOWER OFFICE FAULTED BY THE VA OIG



FLRA [AGAIN] MAKES CLEAR THAT GRIEVANCE SEEKING PROMOTION THROUGH ACCRETION OF DUTIES IS BARRED AS A MATTER INVOLVING CLASSIFICATION



EXECUTIVE ORDER GUIDANCE


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1,020 DAYS AND 2,400 PETITIONS FOR REVIEW

That's how long the MSPB has been without a quorum and unable to issue final decisions on those PFRs.

What's the reason for the holdup on the three Board nominees? Those who know aren't saying anything to Dewey. The pundits cannot add much. They don't know more than anyone else. Speculation abounds, but speculation doesn't count for anything.

Meanwhile, for many months, FLRA has been without a confirmed General Counsel. A nominee awaits confirmation. Without a GC, ULP complaints cannot issue and FLRA loses the ability to adjudicate ULP charges (unless they are raised through arbitration).

That puts the two principal agencies established by the CSRA into recession. OSC is around, to be sure, but it cannot prosecute cases before or obtain stays from MSPB.

To these difficulties are added the problems resulting from the May 2018 Executive Orders, no longer enjoined by the courts, undercutting the ability to settle personnel cases and also undercutting the ability of labor and management to negotiate over significant employment conditions.


VA WHISTLEBLOWER OFFICE FAULTED BY THE VA OIG

By Peter Broida

And then there was the legislation designed to improve operations at VA by making it easier to remove incompetents while protecting whistleblowers, whose complaints could be reviewed by an organization created within VA specifically to address whistleblowers' complaints and to enhance protections for those individuals.

The whistleblower office, designated the Office of Accountability & Whistleblower Protection" (OAWP) may have been well intended, but according to the VA OIG, its efforts have been misguided.

From OIG's Report, "Failures Implementing Aspects of the VA Accountability and Whistleblower Protection Act of 2017," issued on October 24, we learn:

[I]n its first two years of operation, the OAWP acted in ways that were inconsistent with its statutory authority while it simultaneously floundered in its mission to protect whistleblowers. Even recognizing that organizing the operations of any new office is challenging, OAWP leaders made avoidable mistakes early in its development that created an office culture that was sometimes alienating to the very individuals it was meant to protect. Those leadership failures distracted the OAWP from its core mission and likely diminished the desired confidence of whistleblowers and other potential complainants in the operations of the office.

Whistleblower protection has been on the books since the 1978 Reform Act. Agencies charged with whistleblower protection, the Office of Special Counsel and MSPB, and the Board's reviewing court, have been repeatedly assailed by congress for lackluster enforcement efforts or for producing decisions during adjudication curtailing protections against reprisal. Several statutory amendments of the CSRA have resulted in no discernable enhancement of whistleblower protections as a practical matter (aside from the availability of damages). Congress expanded the scope of judicial review beyond the Federal Circuit, and other circuits have expressed displeasure with MSPB over its strained treatment of whistleblower issues.

What is to be done? If efforts to inform or reform the MSPB and OSC, and if creation of separate whistleblower protection organizations within agencies doesn't work, it may be that whistleblower cases should, like EEO cases of federal employees, be subject to complaint in federal district courts with jury trials. Let jurors, rather than bureaucrats, decide the cases for those employees with the stamina and resources to pursue a judicial remedy.


FLRA [AGAIN] MAKES CLEAR THAT GRIEVANCE SEEKING PROMOTION THROUGH ACCRETION OF DUTIES IS BARRED AS A MATTER INVOLVING CLASSIFICATION

No matter how much an arbitrator may agree that a grievant's position has been augmented by higher-graded duties, the statutory bar to grievances involving classification of positions, 5 USC 7121(c)(5), deprives the arbitrator of jurisdiction to resolve the controversy. What's an employee to do? Try and get the position description revised to accurately reflect higher-level duties, and then request a desk audit or pursue a classification appeal. Dept. of Army, Ft. Meade and AFGE Local 1923, 71 FLRA 368 (Oct. 10, 2019) (Member DuBester concurring).


EXECUTIVE ORDER GUIDANCE

There are a couple developments of note concerning the May 2018 Executive Orders.

OPM is placing some of their requirements into the Code of Federal Regulations, by rulemaking notice of September 17, 2019, 64 Fed.Reg. 48794, soliciting comments.

Proposed Rules

By Executive Order of October 11, 2019, the President offered guidance preserving the terms of collective bargaining agreements entered during the period of litigation in the federal district and appellate courts in Washington over whether some provisions of the May 2018 Orders should be enjoined.

Presidential Memorandum on Executive Orders 13836, 13837, and 13839



American Civil Service Law Series

A Guide to Merit Systems Protection Board Law and Practice, 2019
By: Broida

A Guide to Federal Labor Relations Authority Law and Practice, 2019
By: Broida

IN-STOCK

A Guide to Federal Sector Equal Employment Law and Practice, 2019
By: Hadley & Davis

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