Legal Briefs

Every Friday on GovExec.com, Legal Briefs will review cases that involve, or provide valuable lessons to, federal managers. We will be reporting on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Equal Employment Opportunity Commission, the Federal Labor Relations Authority, the Comptroller General, the General Services Board of Contract Appeals and federal courts.

In each case, we'll attempt to boil the legalese down to a succinct lesson or conclusion.

Whenever possible, we'll also provide links to the decisions. For those decisions not available online, we'll provide the name, number and date of the decision for your reference. In the left hand column of this page, you'll also find links to some of the administrative and judicial bodies we'll be covering.

In the debut edition of Legal Briefs, we highlight an arbitrator's order on bargaining rights at the IRS.

Arbitrator to IRS: Keep Your Promise and Bargain

The IRS must bargain with its employees over so-called "permissive" issues because the agency signed an agreement to do so, an arbitrator has ruled. The National Treasury Employees Union and the IRS's Memphis Service Center couldn't agree on a plan for shift change procedures, so the union asked the agency to take the matter to the Federal Service Impasses Panel, an independent panel that arbitrates labor-management disagreements. The IRS refused to do so, arguing that decisions on shift change procedures fall under the management rights outlined in section 7106(b)(1) of federal labor relations law.

But in a May 9, 1994 agreement between NTEU and IRS management, the IRS said it would bargain over so-called (b)(1) issues (also known as permissive issues), which include "the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work." In a March 22 decision, arbitrator Roger P. Kaplan ordered the IRS to follow through with its agreement and bargain over (b)(1) issues. So the disagreement over shift change procedures at the Memphis Service Center will now be taken up by the impasses panel, unless the IRS appeals the arbitrator's decision.

Lesson: It's only a management right until you sign it away.

NTEU vs. IRS, Permissive Bargaining Arbitration, Opinion and Award of Roger P. Kaplan, Esq., Arbitrator, March 22, 1999

You Can Run, But You Can't Hide

A Merit Systems Protection Board judge ordered the Army to suspend Sharon Beal, a supervisor, for seeking reprisals against a whistleblower in a case originated by the Office of Special Counsel. The order became final in January, by which time Beal had transferred to the Treasury Department. MSPB then modified the order by directing Treasury to impose the suspension.

Beal argued that her current position was not related to her past conduct; therefore, she should not be required to serve the suspension. MSPB upheld its decision, saying federal law allows the board to impose final disciplinary action. The statute does not restrict the board to direct orders only to agencies that employed the respondent at the time of the misconduct. Treasury was ordered to suspend Beal for ten days and to place a copy of the board's decision in her official personnel record.

Lesson: If you're caught taking reprisals against a whistleblower, you can't run to another agency for protection.

Special Counsel vs. Sharon Beal, MSPB, Case No. CB-1259-40-036-R-1, March 26, 1999

Annual Check-Up Leaves Wallet Aching

The Navy properly reimbursed only $50 of the $960.29 an employee stationed in Minnesota spent in travel expenses to go home to Maryland for his annual check-up, an appeals board ruled. Timothy Twigg was on a long-term assignment in Eagan, Minn., when he traveled home to Maryland on a non-work day for his annual doctor visit. Twigg submitted a $960.29 travel reimbursement claim to the Navy. But the Navy reimbursed him only $50, because the Joint Travel Regulations say that reimbursement for a voluntary return home on a non-work day cannot exceed the per diem rate of the temporary work station. The per diem rate for Eagan is $50. The General Services Board of Contract Appeals, which settles federal employees' travel disputes, ruled on Apr. 6 that the Navy did the right thing.

Lesson: Not scrutinizing the Joint Travel Regulations can be hazardous to your (wallet's) health.

In the Matter of Timothy P. Twigg, General Services Board of Contract Appeals, Case No. 14883-TRAV, April 6, 1999

Accommodating Mental Disabilities

After Gary Christian was fired from his position as a mail carrier, he alleged discrimination on the basis of his mental disability and charged the Postal Service with failure to provide him reasonable accommodation for his disability. A Postal Service administrative judge found no evidence of disparate treatment or discrimination, saying Christian was in fact fired because he stayed on the streets too long, routinely misdelivered mail, and frequently returned undelivered mail to the post office. The judge also ruled against the reasonable accommodation charge, saying that Christian failed to tell management about any accommodation he required.

But the Equal Employment Opportunity Commission disagreed with the judge's ruling, saying that Christian told the postal manager that his learning disability was the reason he could not perform his job adequately. This communication should have been considered a request for reasonable accommodation, the EEOC ruled. USPS was charged with failure to meet its obligations under the Rehabilitation Act. Christian's removal was considered disability discrimination.

Lesson: Take employees seriously when they blame work problems on disabilities.

Gary Christian vs USPS, EEOC, Case No. 01971770, March 10, 1999