Legal Briefs: One-way pay

Every Friday on GovExec.com, Legal Briefs reviews several cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

Local 1940 of the American Federation of Government Employees asked the Federal Services Impasse Panel to resolve a deadlock in negotiations between the union and the Agriculture Department's Plum Island Animal Disease Control Laboratory in Greenport, N.Y.

AFGE proposed to change a 40-year-old rule that paid Plum Island employees for their ride to work every day, but not for their ride home. The laboratory is located off of Long Island-getting there requires a 20 to 45 minute ferry ride, depending on the point of departure. The laboratory provides the transportation both ways, but only pays employees for the ride to work. That policy has been in place since 1958, and was made an official regulation in 1965.

AFGE argued that 30 non-professional General Schedule and wage-grade employees at the lab were being penalized on their return trip by not getting paid. The lab, meanwhile, said the union's proposal would decrease the amount of productive time the employees spent in the laboratory. Such a reduction in productivity would cost $72,000 annually, USDA argued. Plus, more bargaining-unit employees might start asking for the same perk, further increasing the financial impact of the proposal, the lab said.

The panel ruled in favor of USDA, saying that the union's arguments were not persuasive enough to change the status quo and that the adverse impact to the agency outweighed the benefit to the lab employees.

Lesson: Sometimes compensation is a one-way street.

AFGE, local 1940 vs. USDA, Plum Island Animal and Disease Control Laboratory, Greenport, N.Y., Federal Service Impasses Panel (99 FSIP 4), March 10, 1999.

Wired Up

Jaramillo P. Savino, employed by the Army as a high voltage technician, was charged with stealing government property and with aiding and abetting others to do the same. The Army accused Savino of carrying off approximately 1,000 pounds of government-owned electrical wire from Fort Sam Houston, Texas over a period of several years. He was also charged with helping other workers remove government-owned electrical wire from the fort.

While Savino admitted to taking 60 feet of aluminum wire, he denied that he stole copper wire, the only type the Army was concerned about. The Army had the burden of proving that the allegedly stolen wire was, in fact, government property when it was taken. But the Army was unable to come up with enough evidence to prove that the missing wire was government property, because of rules governing when wire can be removed from a work site.

New wire, which has not yet been installed in a government building, and wire that has been removed during renovation of a building is considered government property. But wire that is or will be removed by a contractor before a building is demolished can belong either to the government or the contractor, depending on the circumstances.

After listening to testimony, MSPB decided that the evidence on whether Savino stole the wire was evenly balanced. Therefore, the Army did not meet its burden of proof. MSPB ordered the Army to reinstate Savino to his former position and to provide back pay with interest.

Lesson: Taking something isn't always theft.

Jaramillo, Savino P. vs. Army, Merit Systems Protection Board (DA0752980342-I-1), April 16, 1999.

Blowing the Whistle on the Boss

James Steen, a special agent with the Veterans Affairs Office of Inspector General's Seattle office, told a senior OIG investigator about his boss's erratic temper and pattern of abusive behavior. According to Steen and co-workers, George Strehle, the boss, was prone to extreme anger, threats, belittlement and cursing.

Shortly after reporting his concerns about Strehle, Steen was reassigned to New York City and denied his request to instead be reassigned to Houston. Saying he was suffering from emotional distress, Steen took a long paid leave with worker's compensation benefits. The Office of Special Counsel stepped in on his behalf and asked MSPB to look into his case.

The MSPB ordered VA to restore the sick and annual leave Steen took due to stress and said the agency had to give him back pay with interest. VA protested the back pay, saying Steen had been receiving worker's compensation benefits as an injured worker and wasn't medically cleared to return to work. But MSPB upheld its ruling, saying Steen's reliance on worker's compensation was entirely the agency's fault. VA was ordered to provide back pay with interest.

Lesson: If you cause the stress, you'll pay the price.

Special Counsel v. Department of Veterans Affairs (CB-1214-94-0005-C-1), April 26, 1999