The Dewey Publications Podcast
A podcast on federal civil service law hosted by Peter Broida. Each month Peter Broida will discuss several new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC. Mr. Broida writes A Guide to MSPB Law and Practice, A Guide to FLRA Law and Practice, and other titles available at deweypub.com/broida. Please send all comments to deweypublications(at)gmail.com. The podcast does not provide legal advice.
Topics discussed this week by Peter Broida:
- OPM and MSPB proposed regulations;
- Summary removal authority: Supreme Court decision in the Slaughter case;
- Resources for investigators: www.jrsstandard.com
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Topics discussed this week by Peter Broida:
- Implementation of Executive Order on Schedule Policy/Career;
- Federal Circuit appeal involving MSPB jurisdiction to review removals of immigration judges;
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Topics discussed this week by Peter Broida:
- FLRA year in review;
- MSPB case processing statistics
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Topics discussed this week by Peter Broida:
- Job tenure of administrative judges
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Topics discussed this week by Peter Broida:
- OPM and MSPB regulations implementing Schedule Policy/Career
- Ninth Circuit decision concerning executive order removing statutory protections for unions
- Materials to read---from the Federal Judicial Center website: https://www.fjc.gov/research/manuals-monographs-guides
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Topics discussed this week by Peter Broida:
- Probationary terminations: MSPB loss and OPM gain of appellate jurisdiction
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Topics discussed this week by Peter Broida:
- Lesko v. United States (Fed. Cir. Dec. 12, 2025) (FEPA overtime requirements)
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Topics discussed this week by Peter Broida:
- New DOW (nee DOD) procedures for actions against unacceptable performers
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Topics discussed this week by Peter Broida:
- 2019 Government Employee Fair Treatment Act and OMB draft legal opinion on payment obligations for employees during shutdown
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Topics discussed this week by Peter Broida:
- State of the FLRA
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Topics discussed this week by Peter Broida:
- State of the MSPB
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Topics discussed this week by Peter Broida:
- Developments in EEO case processing
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Topics discussed this week by Peter Broida:
- Recent executive and OPM directives
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Topics discussed this week by Peter Broida:
- President Roosevelt’s 1933 removal of FTC Commissioner William Humprey and constitutional arguments advanced then and now in the Supreme Court concerning President Trump’s removal of MSPB Chair Cathy Harris
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Topics discussed this week by Peter Broida:
- Executive Order invoking statutory national security exclusion to undercut federal sector contract and statutory LR protections.
- Peter Broida's webinar on RIFs: https://www.youtube.com/watch?v=03-UU34CGLk
- Buy Dewey books:Reductions In Force, by Renn Fowler at deweypub.com
Topics:
- Ruminations on appealing to MSPB from probationary or trial period terminations
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Topics:
- Ruminations on administrative leave
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Topics:
- FLRA Member’s comments on arbitration practice
- Peter Broida’s comments on executive orders from President Trump affecting federal sector personnel law
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Topics discussed this week by Peter Broida:
- Peter Broida speculates on future events affecting civil service practitioners
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Topics discussed this week by Peter Broida:
- MSPB regulatory changes of September 9, 2024 (89 FR 72957)
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Topics discussed this week by Peter Broida:
- Bureau of Prisons, FCI Ashland and AFGE Local 1286, 74 FLRA 13 (Sept. 4, 2024) (Back Pay Act; exceptions);
- Parkinson v. DOJ, SF-0752-13-0032X-1 (Sept. 5, 2024) (enforcement proceedings);
- Kemp v. Dept. of Army, DA-1221-23-0434-W-1 (Sept. 20, 2024) (holiday work)
Topics discussed this week by Peter Broida:
- Nishimura v. Dept. of Navy SF-0752-20-0282-I-1 (Aug. 13, 2024) (constructive suspensions);
- Hagg v. Bureau of Prisons (Fed. Cir. 2023-1071 NP Aug. 16, 2023) (review of arbitration awards);
Topics discussed this week by Peter Broida:
- FLRA training availability;
- Pershing VAMC and AFGE Local 2338, 73 FLRA 904 (July 15, 2024) (failure to respond to FLRA show cause orders);
- Siefring v. DOJ, CH-0752-20-0509-I-1 (NP July 9, 2024) (burdens of proof for EEO and associated reprisal defenses);
- Cadena v. DHS, DE-0432-19-0321-I-1 (NP July 15, 2024) (post-Santos Chapter 43 requirements)
Topics discussed this week by Peter Broida:
- Rumination of Peter Broida on MSPB case processing
Topics discussed this week by Peter Broida:
- Nelson v. DHS, AT-1221-22-0186-W-1 (4/5/2024) (NP) (IRA treatment of EEO allegations made to OIG or internal agency investigative units)
- Gilewicz v. DHS, 2024 MSPB 7 (4/9/2024) (standards for assessing compensatory damages in whistleblower cases)
- Paulus v. Dept. of Labor, PH-0432-19-0432-I-2 (4/10/2024) (NP) (demonstrating pre-PIP unsatisfactory performance under Santos)
Topics discussed this week by Peter Broida:
- Talley v. NRC, DC-3443-22-0447-I-1 (3/22/2024) (NP) (adverse action jurisdiction and locality pay)
- Cledera v. DOJ, DA-0752-21-0013-I-3 (3/25/2024) (NP) (due process; ex-parte information)
- Flannigan v. Dept. of Air Force, DC-0752-13-0367-I-4 (3/11/2024) (NP) (expert testimony; Daubert)
- Bureau of Prisons, FCC Victorville and AFGE Local 3369, 73 FLRA No. 164 (3/22/2024) (overtime and continuing violations)
Topics discussed this week by Peter Broida:
- Wriglesworth v. Dept. of Army, DC-0752-15-0860-1-2 (1/9/ 2024) (NP) (discovery and motions to compel)
- Luna v. DHS, 2024 MSPB 2 (1/10/2024) (misconduct investigations and immunity for criminally inculpatory information)
- Kelly v. TVA, 2024 MSPB 1 (1/5/2024) (adjustment of counsel fee hourly rates for delayed payment in mixed cases)
Topics discussed this week by Peter Broida:
- New MSPB e-appeal system.
- Trial of ChatGPT in our little area of the law.
Topics discussed this week by Peter Broida:
- Consumer Financial Protection Bureau and NTEU Chapter 335, 73 FLRA 670 (Sept. 26, 2023) (approach to use in applying excessive interference test when arbitration awards involving arrangements clauses are challenged as violating statutory management rights)
Topics discussed this week by Peter Broida:
- Troy v. Dept. of Army, AT-0752-21-0259-I-1 (8/4/2023) (NP) (Individual Reliability Program certification);
- Godby v. VA, CH-1221-21-0147-W-1 (8/14/2023) (NP) (IRA burden of proof: nonselection);
- ABA Formal Opinion 508 (8/5/2023) ("The Ethics of Witness Preparation")
Topics discussed this week by Peter Broida:
- McCray v. VA, CH-1221-16-0553-W-1 (7/27/2023) (NP) (hostile environment allegations in IRA appeal)
- Allen v. Dept. of Navy, DC-4324-16-0698-I-1 (7/20/2023) (NP) (counsel fees; prevailing party)
Topics discussed this week by Peter Broida:
- AFGE Local 547 and Haley VA Hospital, 73 FLRA 581 (6/15/2023) (elections of remedies)
- Hanuschik v. Dept. of Army, SF-1221-16-0236-W-1 (6/15/2023) (NP) (hostile environment in IRA appeals)
Topics discussed this week by Peter Broida:
- Ramirez v. Postal Service, SF-0752-18-0324-I-1 (NP May 5, 2023) (case suspensions);
Topics discussed this week by Peter Broida:
- Discussion of current events and operations at MSPB, FLRA, and OPM;
Topics discussed this week by Peter Broida:
- FLRA decision on petition to amend rules on requests for policy and guidance. 73 FLRA 428 (2/9/2023)
- OPM memo of January 26, 2023, to agencies concerning bargaining unit exclusions
Topic discussed this week by Peter Broida:
- Doe v. Dept. of State, 2022 MSPB 38 (Nov. 29, 2022) (counsel fees);
- Haas v. DHS, 2022 MSPB 36 (Nov. 7, 2022) (medical inability to perform);
- AMC Redstone Arsenal and NFFE Local 1332, 73 FLRA 356 (Dec. 8, 2022) (interlocutory exceptions);
- Marine Corps, Twentynine Palms, and AFGE Local 2018, 73 FLRA 379 (Dec. 9, 2022) (temporary promotions);
Topic discussed this week by Peter Broida:
- Doyle T. v. Air Force, EEOC 2022004281 (9/30/2022) (disability discrimination);
- Thomas v. Dept. of Army, 2022 MSPB 35 (10/20/2022) (inappropriate workplace conduct);
- Chin v. DOD, 2022 MSPB 34 (10/7/2022) (mitigation: dissent by Member Leavitt)
Topic discussed this week by Peter Broida:
- Oram v. Dept. of Navy, 2022 MSPB 30 (Aug. 31, 2022) (VEOA);
- Johnson v. Dept. of Air Force, Fed. Cir. 2021-1579 (Sept. 26, 2022) (due process);
- Kotsis v. Dept. of Transportation, MSPB AT-0432-16-0006-I-1 (Aug. 9, 2022) (ADA)
Topic discussed this week by Peter Broida:
- NTEU v. FLRA (D.C. Cir. 20-1400 August 2, 2022) (reviewing FLRA Guidance);
- Bishop v. Dept. of Agric., 2022 MSPB 28 (August 18, 2022) (scope of IRA/EEO allegations)
Topic discussed this week by Peter Broida:
- AFGE Local 13 and Dept. of Army, Rock Island, Illinois, 73 FLRA 125 (July 21, 2022)
- Martin v. USPS, 2022 MSPB 22 (July 20, 2022)
- Collazo v. USPS, PH 3443-21-0263-I-1 (July 29, 2022)
Topic discussed this week by Peter Broida:
- Comparators: Where are we going?
- Singh v. USPS, 2022 MSPB 15 (May 31, 2022)
Topic discussed this week by Peter Broida:
- Lee v. VA, 2022 MSPB 11 (5/12/2022)
- Edwards v. Dept. of Labor, 2022 MSPB 9 (5/5/2022)
- Newly-confirmed Member at FLRA
Topic discussed this week by Peter Broida:
- State of the Board
- Rossbach v. Dept. of Interior, DC-315I-14-0066-B-1 (3/30/22)
- Shibuya v. Dept. of Agriculture, DE-1221-09-0295-B-1 (3/31/22)
Topic discussed this week by Peter Broida:
- Permissive Bargaining and President Biden’s Executive Order
Topics discussed this week by Peter Broida:
- AFGE Local 3369 and SSA, 72 FLRA 619 (Jan. 14, 2022) (exceptions jurisdiction: matters collateral to removals)
- DOJ Executive Office for Immigration Review and Nat'l. Ass'n. of Immigration Judges, IFPTE, 72 FLRA 622 (Jan 21, 2022) (management/unit status of Immigration Judges)
- Smolinski v. MSPB (Fed. Cir. 2021-1751 Jan. 19, 2022) (whistleblower hostile environment allegations; remedial exhaustion)
- Gessel v. MSPB (Fed. Cir. 2021-1815 Jan. 19, 2022 NP) (whistleblower hostile environment allegations; co-worker interaction)
Topics discussed this week by Peter Broida:
- Executive Order 14025 (April 26, 2021) and OPM Guidance ("Worker Organizing and Empowerment") Restrictions on bargaining: zipper clauses, the "covered by" doctrine, and waivers during negotiations
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Topics discussed this week by Peter Broida:
- Knapp v. MSPB (Fed. Cir. 2020-2122 Nov. 17, 2021 NP) (IRA jurisdiction on matters related to clearance suspension)
- Alvarez v. Azar (D.MD. CA CCB-20-2626 Sept. 23, 2021) (attempt to prevent HHS from lodging objections to authority of MSPB AJs to adjudicate appeals)
- Davis v. MSPB (ED Ill. No. 20-cv-2139 Nov. 9, 2020) (attempt to prevent MSPB AJs from granting HHS motions to DWOP appeals pending resolution of authority of MSPB AJs to adjudicate appeals)
Topics discussed this week by Peter Broida:
- Potter v. VA (Fed. Cir. 2021-1460) (October 25, 2021) (IRA factual and contributing factor (Cat's Paw) analysis)
Topics discussed this week by Peter Broida:
- DHUD and AFGE Local 3972, 72 FLRA 450 (August 27, 2021) (jurisdictional defect in arbitration: union's failure to provide management a contractually-required notice of intent to invoke arbitration);
- Marine Corps Air Ground Combat Center and AFGE Local 2018, 72 FLRA 473 (September 15, 2021) (jurisdictional defect in arbitration: untimely grievance and arbitration request);
- DHS, C&BP and AFGE Local 3307, 72 FLRA 463 (September 8, 2021) (arbitration: counsel fee award set aside as contrary to law under several Allen factors).
Topics discussed this week by Peter Broida:
- The "clear and convincing" evidentiary standard and judicial interpretation: Insurance Co. v. Nelson, 103 U.S. 544 (1880); Helvering v. Fitch, 309 U.S. 149 (1940); Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359 (1998); Addington v. Texas, 441 U.S. 418, 425 (1979); California ex rel. Cooper v. Mitchell Brothers Santa Ana Theater, 454 U.S. 90, 93 (1981); Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983); Colorado v. New Mexico, 467 U.S. 310 (1984).
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Topics discussed this week by Peter Broida:
- Smith v. McDonough(Fed. Cir. 20-1354) (April 24, 2021) (valuation of counsel fee requests for case reviews)
- OPM Guidance on labor-management partnerships and pre-decisional involvement (May 18, 2021)
One case discussed this week by Peter Broida:
- United States v. Arthrex, Inc. (Supreme Court No. 19-1434) ( June 21, 2021)
Topics discussed this week by Peter Broida:
- Beck v. Dept. of Navy (Fed. Cir. 2019-1205) (May 14, 2021) (USERRA; preselection);
The hundredth podcast: Tribute to Ernie Hadley and Reflections on the State of Civil Service Law
Several items of interest are discussed this week by Peter Broida:
- NLRB and NLRBU, 72 FLRA 133 (March 14, 2021) (jurisdiction of arbitrator to review agency decision on debt collection);
- Santos v. NASA (Fed. Cir. 2019-2345) (proof of unacceptable performance before institution of a PIP);
- OPM Guidance to Agency Heads for Implementation of Executive Order 14,003 (March 5, 2021)
Several items of interest are discussed this week by Peter Broida:
- Executive Order 14003 (Jan. 22, 2021), revoking Trump Executive Orders and Schedule F;
- Holmes v. USPS (Fed. Cir. 2019-1973 Feb. 8, 2021) (significance of arbitration awards in MSPB analysis of disparate penalties);
- Huang v. DHS (9th Cir. 20-70242 Jan. 15, 2021 NP) (lack of whistleblower protection for inappropriate comments to supervisor)
Several items of interest are discussed this week by Peter Broida:
- POPA and PTO, 71 FLRA 1223 (Dec. 23, 2020) (Effect of EO 13837 on negotiability of official time and allowances, subjects of bargaining);
- DOJ Bureau of Prisons and AFGE Local 3690, 71 FLRA 1247 (Dec. 29, 2020) (official time and the "carve out" doctrine);
- DHS C&BP and AFGE Local 1929, 72 FLRA 7 (2021) (bargaining obligations: conditions of employment and working conditions)
Several items of interest are discussed this week by Peter Broida:
- DOJ, Executive Office of Immigration Review and Nat'l. Ass’n. of Immigration Judges, 71 FLRA 1046 (2020) (Nov. 2, 2020) (unit [management] status of judges)
- Hessami v. MSPB (Fed. Cir. 2019-2291 Nov. 9, 2020) (analysis required by MSPB for nonfrivolous IRA allegations)
Several items of interest are discussed this week by Peter Broida:
- Dept. of Agriculture, OGC (Statement of Policy & Guidance, 71 FLRA 986 (Sept. 30, 2020) (effect of rollover, renegotiation, or continuation of contracts on government-wide or agency regulations blocked by existing contract)
- Dept. of Education, (Statement of Policy and Guidance, 71 FLRA 968 (Sept. 30, 2020) (threshold level of changes in employment conditions required to trigger bargaining obligation);
- OPM regulations of October 16, 2020 (adverse and performance-based actions and settlements)
- Executive Order of October 21, 2020, creating Schedule F in the Excepted Service
Several items of interest are discussed this week by Peter Broida:
- Jenkins v. DOT (Fed. Cir. 2019-2075 August 6, 2020 NP) (off-duty speech and nexus);
- National Right to Work Legal Defense Foundation, Inc., 71 FLRA 923 (August 19, 2020) (official time of union officials for lobbying);
- Dept. Of Agric., OGC and AFGE Local 1106, 71 FLRA 910 (August 12, 2020) (stays of FSIP orders);
- Aviles-Wynkoop v. DOD (Fed. Cir. 2019-1908 Sept. 2, 2020 NP) (adverse action due process; evidence admissible before MSPB)
Several items of interest are discussed this week by Peter Broida:
- Kent v. MSPB (Fed. Cir. August 5, 2020 NP) (probationary appointments; reappointment authority);
- Jenkins v. DOT (Fed. Cir. August 6, 2020) (nexus and off-duty conduct impacting the workplace);
- NWSEO v. FLRA(D.C. Cir. July 31, 2020) (scope of FLRA review of arbitrator’s contract interpretation);
- MSPB virtual hearing procedures
Several items of interest are discussed this week by Peter Broida:
- AFGE Local 3430 and DHHS, NIOSH, 71 FLRA 881 (July 13, 2020) (proper support for positions taken in negotiability appeal);
- AFGE Local 1929 v. FLRA (D.C. Cir. 19-1069 June 9, 2020) (conditions of employment and working conditions)
- Young v. MSPB (Fed. Cir. 2019-2269 June 11, 2020) (IRA does not include EEO reprisal)
- Cerulli v. DOD (Fed. Cir. 2019-2022 June 9, 2020) (IRA does include a fitness exam)
Several items of interest are discussed this week by Peter Broida:
- Wine v. MSPB (Fed. Cir. May 21, 2020 NP) (Special Counsel as IRA respondent)
- Air Force, Warner Robins AFB and AFGE Local 987, 71 FLRA 758 (2020) (election of remedies: EEO/grievance)
- VA Gulf Coast Healthcare System and AFGE Local 1045, 71 FLRA 752 (2020) (whether an arbitrator’s email is an award subject to exceptions to FLRA)
Several items of interest are discussed this week by Peter Broida:
- Sayers v. VA (Fed. Cir. 2018-2915) (March 31, 2020) (retroactivity of 2017 statute governing evaluation by MSPB of VA misconduct adverse actions);
- Noffke v. Dept. Defense (Fed. Cir. 2019-2193 NP) (April 8, 2020) (use of swipe records in AWOL cases; hearsay value of OIG reports);
- SBA v. AFGE Local 288, 71 FLRA 655 (April 2, 2020) (application of Bolling standards to grievances challenging disciplinary actions);
- SSA v. Ass’n. ALJs, IFPTE, 71 FLRA 652 (March 31, 2020) (jurisdiction of FLRA to stay FSIP proceeding);
- Sistek v. VA (Fed. Cir. 2019-1168) (April 8, 2020) (retaliatory investigation claimed as covered IRA personnel action);
- Babb v. Wilkie (Supreme Court No. 18-882) (April 6, 2020) (burden of proof in federal sector age discrimination cases)
Several items of interest are discussed this week by Peter Broida:
- Dept. of Justice, Bureau of Prisons and AFGE Local 614, 71 FLRA 538 (1/3/2020) (interference: barring union counsel from worksite)
- Sanchez v. VA (Fed. Cir. 2018-2171) (2/10/2020) (duration of condition of settlement when no time limitation is stated)
- VA and AFGE Local 2338, 71 FLRA 533 (1/29/2020) (exceptions jurisdiction: claimed coerced retirement)
Several items of interest are discussed this week by Peter Broida:
- FLRA determinations on Requests for Statements of Policy and Guidance
- Holland v. MSPB (Fed. Cir. 2019-1388 NP) (Jan. 6, 2020) (constructive suitability appeals)
- Arthrex, Inc. V. Smith & Nephew, Inc. (Fed. Cir. 2018-2140) (Oct. 31, 2019) (validity of appointments of Administrative Patent Judges)
Several items of interest are discussed this week by Peter Broida:
- Army Corps of Engineers, Little Rock and IBEW Local 2219, 71 FLRA 451 (Dec. 4, 2019) (unit definitions; reorganizations);
- Annalee D. v. Murphy (GSA), EEOC Recon. 0120170991 (Nov. 27, 2019) (involvement of agency counsel in EEO counseling and investigative processes)
Several items of interest are discussed this week by Peter Broida:
- McGuffin v. SSA (Fed. Cir. 2017-2433) (Nov. 7, 2019) (USERRA discrimination: trial period termination)
- AFGE Local 3310 and Dept. Of Army, Corps of Engineers, 71 FLRA 395 (Nov. 7, 2019) (FLSA; good faith; liquidated damages)
- Dept. of Treasury, IRS and NTEU, 71 FLRA 400 (Nov. 13, 2019) (arbitration: counsel fees)
- Dept. of Treasury, IRS and NTEU Local 299, 71 FLRA 387 (Nov. 4, 2019) (arbitration: remedial authority concerning performance ratings)
- Presidential Memo: Delegation of Removal Authority Over FSIP (Nov. 12, 2019)
Several items of interest are discussed this week by Peter Broida:
- Dept. of Army Medical Activity Ft. Meade and AFGE Local 1923, 71 FLRA 368 (Oct. 10, 2019) (accretion of duties)
- Presidential Memorandum of October 11, 2019, on Executive Orders
- OPM Proposed Rules Involving Executive Orders
- SSA and AFGE Local 3627, 71 FLRA 355 (Sept. 30, 2019) (remedial authority of arbitrators)
Several items of interest are discussed this week by Peter Broida:
- Feuer v. NLRB (Fed. Cir. 2019-1390) (Sept. 13, 2019)
- Mount v. DHS (1st Cir. 18-1762) (Aug. 29, 2019)
- Tang v. MSPB (Fed. Cir. 18-2188) (Sept. 13, 2019) (oral argument) [search on 2018-2188.mp3]
Several items of interest are discussed this week by Peter Broida:
- Export-Import Bank and AFGE, 71 FLRA 248 (2019) (definition of professional employee; election requirements when through unit clarification proceeding employees entering the unit exceed 50% of the total unit)
- Smith v. GSA, (Fed. Cir. 2018-1604) (July 19, 2019) (remand: application of clear and convincing evidentiary standard and Carr factors)
Several items of interest are discussed this week by Peter Broida:
- AFGE Local 1633 and VA DeBakey Medical Center, 71 FLRA 211 (July 10, 2019) (attorney fee standards for grievances resulting in payment of benefits, e.g., environmental differential pay)
- AFGE Local 2076 and DHS, CIS, 71 FLRA 221 (July 10, 2019) (attorney fee standards for grievances resulting in mitigation of minor disciplinary suspensions)
- DL et al. v. District of Columbia, 924 F.3d 585 (2019) (application of Laffey Matrix)
Several items of interest are discussed this week by Peter Broida:
- Borza v. Dept. Commerce, (Fed. Cir. 2018-1873) (nonprecedential) (May 29, 2019) (arbitration: time-served suspensions)
- SSA OHA and IFPTE AALJs, 71 FLRA 123 (May 16, 2019) (election of remedies: EEO grievance)
- DHS C&BP and AFGE Border Patrol Council, 71 FLRA 119 (May 15, 2019) (arbitration: official time justification)
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