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Ask FELTG: Does a Local CBA Trump an Agency’s Nationwide Policy?

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June 14, 2023

Here’s more context from the loyal FELTG reader who posed the question:

Let’s say, hypothetically, management at a regional outpost agrees to terms regarding office workspace with their local union, and then enters into a CBA articulating those provisions. Later, the national agency management team creates a policy on office workspace that is inconsistent with the local CBA.

Which policy controls at the outpost? Is it the local policy as stipulated in the CBA or the national policy? Can the actions of a manager at the local level essentially prevent the agency’s leaders from having a universal policy?

Here’s FELTG’s answer:

The union agreement always trumps an agency’s new policies with two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (DC Cir, 2009).
  2. The new policy is implementing a new law. (The incontrovertible law part of the new policy is effective right away. However, the agency still must bargain I&I and any flexible parts of the law).

So, let’s say local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

Here’s an example we like to discuss during FLRA Law Week (next held September 18-22). Years ago, the Secretary of HHS declared through a new policy that the work places within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Very reasonable reason for a new policy, we tend to think.

However, it conflicted with several local CBAs, including at NIH, which had old provisions allowing designated smoking areas.

There was a huge welcome sign as you entered the main campus of an HHS sub-agency that states it is a “totally smoke-free environment.”

Several times, we had to plead with FELTG Past President Bill Wiley to not add a comment to the sign, stating “unless you’re in certain bargaining units.”

Have a question, Ask FELTG.

The materials presented here and on this website are for informational purposes only and are not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.  Should you need legal advice, you should contact an attorney. 

Ask FELTG: If an employee is out of leave and requests Leave Without Pay for an ongoing illness, is the agency required to grant the LWOP?

May 30, 2023

Thanks for the question. And the answer is … it depends.

A foundational principle regarding Leave Without Pay (LWOP) is that granting or denying LWOP is within the agency’s discretion. See Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011). In cases involving employee medical issues, the MSPB will examine the record as a whole to determine whether the agency’s denial of LWOP was reasonable under the circumstances. Id. When an employee who is incapacitated for duty has exhausted all of her leave, an agency may deny LWOP when there is no foreseeable end to the employee’s absence and the employee’s absence is a burden to the agency. Id.

Allow us to elaborate by way of a recently issued NP case from the MSPB, Evans v. DOL, CH-0752-15-0179-I-1 (May 3, 2023)(NP). Evans was removed for AWOL after the agency denied her request for continued LWOP related to an illness. On appeal, the AJ affirmed the agency’s AWOL charge and concluded that the agency’s denial of LWOP was reasonable because there was no foreseeable end to her absence, and the absence was a burden to the agency. The Board agreed.

Agency policy on LWOP often arises in these cases, and Evans was no exception: “The agency’s policy specifically indicates that the granting of LWOP is discretionary…While it does allow officials to grant LWOP pending final action by the Office of Personnel Management on a disability retirement claim, at their discretion, the policy does not specifically cover the appellant’s situation, when she was AWOL but apparently still deciding whether to apply for disability retirement.”

The intersection of leave and medical issues is one of the more complex areas in Federal employment law, and mistakes can cost the agency dearly. If you work in this arena, FELTG has an upcoming training opportunity you’ll want to take advantage of:

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Could Last Chance Agreement Open Agency to Disparate Treatment Claim?

May 1, 2023

The following question came into the FELTG mailroom.

Our agency sometimes uses Last Chance Agreements, but a few members of leadership are concerned that offering LCAs to only certain people could open the agency up to claims of disparate treatment discrimination. What are your thoughts?

The good news is that the MSPB has said that an agency’s decision to enter into a settlement agreement with an employee generally cannot form the basis for another employee’s disparate treatment claim. See Ragolia v. USPS, 52 M.S.P.R. 295 (1992); Lewin v. Department of Justice, 74 M.S.P.R. 294 (1997). The Board explained that “to require such an explanation from the agency in order to discount a disparate treatment claim would have a chilling effect on settlement agreements, which are, after all, favored by the courts and the Board.” Ragolia, 52 M.S.P.R at 304.

A recent NP Board decision affirmed this principle. In this case, the appellant was removed after he tested positive during a scheduled drug test. He admitted he had taken THC tablets two days prior to the test, to cope with alcohol withdrawal. He challenged his removal and claimed a due process violation because he was not offered an LCA. The MSPB, citing Lewin, found there was no valid claim of disparate treatment because settlements with other employees need not be explained. Oneal v. USAF, AT-0752-15-0666-I-1 (Feb. 22, 2023)(NP).

For more on this topic, join FELTG for the all-new virtual class Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives on May 17.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: I work for a fairly small agency. Is it a problem if the same supervisor acts as both the Proposing and Deciding Official in a disciplinary action?

March 20, 2023

You might be surprised by this, but the answer is no – it’s not a problem or issue as long as the employee is given due process:

1. Proposal notice with charge(s), penalty, and the material relied upon in making the proposal;

2. An opportunity to respond orally and in writing, with a representative if desired; and

3. An impartial decision.

If the PO and DO are the same person, there’s no due process issue if that supervisor can credibly testify they kept an open mind and did not make a final determination about discipline until after the employee’s response.

This is a foundational principle going back to early Board case law, which states the “law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.” DeSarno v. Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985).

One quick note: In a Chapter 43 performance-based action, the law requires the DO to be a management official at a higher level than the PO. 5 USC § 4303(b)(1)(D)(2).

Join FELTG for MSPB Law Week March 27-31 (next week!) for more on this topic.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What’s the Best Way to Calculate Non-pecuniary Compensatory Damages in an EEO Case?

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February 28, 2023

Thanks for the question. The best way to determine appropriate compensatory damages in cases where agencies are found liable for discrimination, harassment, reprisal, or a failure to accommodate is to look at the harm the employee endured. It’s difficult to put a dollar value on non-tangible things like anxiety, fear, loss of sleep, and the like, so researching cases where the facts are similar will help you determine what amount of damages the Commission would consider appropriate.

According to instructor Bob Woods, “EEOC has provided that an award should reflect the nature and severity of the harm to the complainant and the duration or expected duration of the harm. They have specifically stated that they will attempt to make awards that are consistent with awards in similar cases.”

In addition, we’ve done training on the topic and a recording of the recent webinar Damages and Remedies in Federal Sector EEO Cases is available in the FELTG store. Or, join us during EEOC Law Week March 13-17 for a live discussion on this topic and more.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles Accommodation Request for Inability to Commute

January 24, 2023

Here’s a question that recently came into FELTG’s mailroom:

In granting or denying a reasonable accommodation request for telework, does it make any difference if the employee’s only disability-related problem is his commute to work? Hypothetically, he does not have any problem performing his job once he gets to work.

And our reply:

Thanks for your email; we get various versions of this question quite a lot (see a recent Ask FELTG about accommodating an individual with telework because the Metro station near his home was closed). In recent years, EEOC has given us clear guidance on the topic.

To be entitled to 100 percent telework as a reasonable accommodation, the employee must show:

1. Their disability makes it impossible for them to get to the physical work site, and

2. The essential functions of their position can be performed from home.

Here are a couple of cases to get you started:

Lavern B v. HUD, EEOC No. 0720130029 (2015): EEOC “precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act.” This doesn’t mean the employee will always be granted telework, but this means the agency is obligated to go through the reasonable accommodation process with the employee who is requesting telework or an alternate work location because the commute exacerbates his medical condition. In this case, EEOC found that commuting to work is a major life activity. Because of the complainant’s spinal condition, the agency was required to consider accommodating his physical inability to commute the longer distance to the office.

Doria R. v. NSF, EEOC Appeal No. 0120152916 (2017): “[P]roviding disabled employees with the reasonable accommodations [sic] of telecommuting is consistent with the Rehabilitation Act’s goal of assuring ‘equality of opportunity, full participation, independent living, and economic self-sufficiency’ for individuals with disabilities.” In this case, the employee had cancer that metastasized to her bones. Driving or riding in a car was deemed by her physician to be too dangerous because of the condition of her skeleton, and the agency erred by not considering her request for 100 percent telework.

We’ll be tackling this topic in more detail on Feb. 16 during the two-hour class Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. We hope you’ll join us!

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: How Exactly Did Union Rep Cross Line Into Misconduct?

January 9, 2023

An item in our weekly email generated the following question:

You mentioned in one of your recent newsletters that an FLRA decision illustrated union activity “that very clearly crossed the line.” As our relationship with the union here is standoffish in its best moments, I’d like to know what exactly the union did to cross that line so that a union rep could be disciplined.

Dear loyal FELTG reader,

First, thank you for subscribing to our weekly email and monthly newsletter.

What you read was a teaser, enticing you to register for Ann Boehm’s two-hour training session Drawing the Line: Union Representation or Misconduct on Jan. 19 at 1 pm ET. In that training session, Ann will discuss every angle of this topic, from determining what kinds of union activity are protected to how to discipline disruptive behavior that is not protected. And she’ll discuss the arbitrator and, eventually, FLRA decision in Bremerton Metal Trades Council, 73 FLRA 90 (2022).

So, you want to know: What did the union rep do in Bremerton that warranted discipline?

Well, the union rep, according to statements obtained by the agency, used the following words to describe colleagues — ’r—ard,’ ‘stupid,’ ‘slow,’ ‘f—king p—sy,’ ‘f—king idiot,’ and ‘god d—n r—ard.’ The rep created a toxic and uncomfortable work environment. The rep’s behavior was so bad, it caused a chief steward to experience three panic attacks over a one-month period, with the last one landing him in the hospital.

The arbitrator sided with the agency’s decision to discipline the rep for her “confrontational and bullying” behavior because the conduct was “flagrant or otherwise outside the bounds of protected activity.” The arbitrator also noted that the bullying behavior was for the grievant’s own benefit, and it was not provoked. The FLRA concurred.

For more about this case, read Ann’s Good News column from last August and join her on Jan. 19.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What do OPM’s new regulations say about clean record agreements?

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December 14, 2022

OPM’s new regulations on 5 CFR parts 432 and 752, which went into effect Dec. 12, 2022, removed the 2020 regulations’ prohibition on clean record agreements. Agencies are once again free to use clean record settlements. This was probably the most contested portion of the 2020 regulations, which had incorporated President Trump’s E.O. 13839 prohibitions on clean record settlements.

OPM explains that clean record agreements “should be an option for agencies to resolve informal and formal complaints when the agency deems it is in the best interests of effective and efficient management to achieve the agency’s mission,” and that clean record agreements provide agencies with an important tool and flexibility, consistent with the policies of President Biden’s E.O. 14003, Protecting the Federal Workforce.

OPM identified some of the disadvantages to prohibiting clean record agreements:

  • Reduced likelihood of parties reaching a mutually agreeable resolution of informal or formal complaints
  • Increase of costly litigation and arbitration
  • Crowding of the dockets of third-party investigators, mediators, and adjudicators
  • Cases languishing impact the agency’s credibility, supervisor morale, and efficient execution of the agency’s mission

OPM’s rescission does not take a position on whether any particular case should be settled, as it acknowledges that settlements, which through lessening a penalty or permitting resignation, may in certain circumstances:

  • Lessen the risk of outright reversal with its high costs without benefit, or
  • May adversely affect governmental interests.

Agencies are still required to be truthful to Federal investigators in connection with background investigations, and may not agree to withhold information about an individual’s departure from the agency. In addition, the requirement for agencies to be truthful applies also to suitability determinations and other inquiries related to vetting for personnel security.

The rescission of clean record restrictions applies to

  • 432.108 (performance-based actions)
  • 752.104 (discipline for whistleblower retaliation)
  • 752.203 (short suspensions)
  • 752.407 (appealable actions)
  • 752.607 (SES adverse actions)

If you missed our recent webinar Implementing New OPM Regs for More Effective Disciplinary and Performance Actions, the recording is available in the FELTG store. Info@FELTG.com

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: If Metro is Closed, Is Telework a Reasonable Accommodation?

October 31, 2022

We recently received the following question: If a Metro station is closed for construction, does our agency have to accommodate a disabled employee who usually takes the Metro to work by granting temporary telework?

Thanks for the question. As in every reasonable accommodation case, the agency should follow the framework we teach in our classes, which mirrors the requirements of the law:

  1. Does the individual have a disability?
  2. Are they a qualified individual?
  3. Did they request accommodation?
  4. Did the agency engage in the interactive process?
  5. If there is a feasible accommodation, will it impose an undue hardship on agency operations?

There’s a fairly recent case in which this exact issue came up, Orlando O. v. USPS, EEOC Appeal No. 2020003910 (Dec. 7, 2021).

The complainant suffered from ulcerative colitis, which required him to be able to access a restroom with minimal notice. He took the subway to work every day, but the subway line he used would be closed for four months and the shuttle service that replaced the subway service did not provide restroom accommodations. The agency denied the telework request. It ordered the complainant to either report to the workplace or take sick leave. Because he was unable to come into work, he used 456 hours of sick leave, and reported back to work the day the subway re-opened. The EEOC found improper unnecessary delay of RA and that the agency failed to show granting telework would have caused an undue hardship.

We have no doubt your agency is dealing with other new, untested RA challenges. Join FELTG for Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency November 17 for a lively discussion on how to address these challenges legally and efficiently.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Can Comments About Church Attendance State a Viable Claim of Hostile Work Environment Harassment?

October 10, 2022

Stating a claim is much easier than proving hostile work environment harassment. As we teach in EEOC Law Week, in order to prove a hostile work environment, the complainant must show she was subjected to unwelcome conduct, based on a protected EEO category (such as religion), and that the conduct was so severe or pervasive it altered the terms, conditions and privileges of employment to create a hostile or abusive work environment.

The best way to answer your question is to look at a case involving this very topic, Ricky S. v. USPS, EEOC Appeal No. 2019005078 (Sept. 30, 2019). In this case, the complainant alleged:

(1) The postmaster yelled and accused him of requesting medical (FMLA) leave to miss work on Sundays in order to really go to church;

(2) The postmaster threatened to send Postal Inspectors to his church to verify his presence in the services;

(3) The complainant was given a pre-disciplinary interview during which the postmaster yelled at him and accused him of missing work to go to church, and warned him that he could get fired for doing so; and

(4) The postmaster commented about the complainant on the work floor in front of co-workers, “I will work him so much that he won’t be able to pray!”

The agency initially did not accept the complaint, but the EEOC remanded and ordered the agency to accept the claim because, when viewing all of the complainant’s allegations together and assuming they occurred as alleged, the complainant stated a viable claim that the agency was required to investigate.

Remember, stating a claim doesn’t mean that hostile work harassment has been proven, it just means the agency must conduct an investigation – the next step in the EEO process. For more on this timely topic, join FELTG tomorrow (October 12) for a 60-minute session on The Latest in Religious Harassment and Discrimination Cases.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.