The Dewey Publications Podcast

Several items of interest are discussed this week by Peter Broida:EPA and NTEU, 70 FLRA 533 (May 3, 2018) (unit clarification: location of employees on telework);DHS C&BP and AFGE NBPC Local 1929, 70 FLRA 501 (April 30, 2018) (working conditions and conditions of employment distinguished);Dept. of Navy, Norfolk and IBPO Local 800, 70 FLRA 512 (May 2, 2018) (ULP/grievance elections for changes in conditions of employment);SBA and AFGE Local 3841, 70 FLRA 525 (May 2, 2018) (procedural arbitrability: essence challenges; application of past practice to override clear contract language).

Several items of interest are discussed this week by Peter Broida:Dept. of Justice, Bureau of Prisons and AFGE Local 817, 70 FLRA 398 (Feb. 22, 2018) (arbitration awards and the excessive interference standard of review);Dept. of Navy and IFPTE Local 4, 70 FLRA 429 (March 20, 2018) (timeliness of exceptions to arbitrator's award);Bonny R. v. Dept. of Agriculture, EEOC OFO 0120160799 (Jan 25, 2018) (challenge to oral settlement of an EEO case)

Several items of interest are discussed this week by Peter Broida:Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 (agency training requirements); Delgado v. MSPB (7th Cir. No. 16-1313 Jan. 29, 2018) (whistleblowing: adequacy of pleading to OSC and MSPB);Dept. of Justice v. FLRA (D.C. Cir. 16-1301 Nov. 17, 2017) ("covered by" doctrine);Dept. of Treasury, BEP and NTEU, 70 FLRA 359 (Jan 16, 2018) (definition of professional employee);Dept. of Defense, DCMA and AFGE Local 2433, 70 FLRA 370 (Jan. 23, 2018) (period for filing exceptions following email issuance of arbitration award)

Several items of interest are discussed this week by Peter Broida:U.S. Capitol Police v. Office of Compliance, ___F.3d___ (Fed. Cir. 2018) (Letterkenny analysis in unfair labor practice case);Dept. of Labor, OSHA and Greenlaw, 70 FLRA 353 (2/2/2018) (unit clarification process to determine bargaining unit status for person seeking to file a grievance to challenge an adverse action);Henderson v. VA, ___F.3d___ (Fed. Cir.12/26/2017) (shortened notice periods).

Several items of interest are discussed this week by Peter Broida:Certiorari Petition: Vocke v. MSPB (equitable tolling of Federal Circuit deadline for filing judicial petitions for review of MSPB decisions)Parkinson v. DOJ, ___F.3d___ (Fed. Cir. 2017) (FBI agents lack whistleblowing affirmative defense in MSPB adverse action appeals)Dr. Chris Kirkpatrick Whistleblower Protection Act of 2017 (agencies are required to provide training on whistleblowing; agencies must discipline supervisors who are found to have engaged in whistleblower reprisal)Tables of Penalties: a congressional study in the context of sexual harassment cases. News and Case Alert Issue #9-9

Several items of interest are discussed this week by Peter Broida:Piccolo v. MSPB (Fed. Cir. 2016-2374 Sept. 7, 2017) (the essence of nonfrivolous allegations in an IRA case);Craine v. National Science Foundation (10th Cir. 16-9536 April 26, 2017) (whistleblower protections for employees of federal contractors);Miskill & AFGE Local 1923 v. SSA (Fed. Cir. 2016-1598 July 20, 2017) (arbitration: consideration of post-termination comparator employees)

Several items of interest are discussed this week by Peter Broida:Perry v. MSPB (Supreme Court June 23, 2017) (district court jurisdiction to review MSPB mixed-case jurisdictional dismissals);Follow the Rules Act;Act Authorizing Single MSPB Member to Extend OSC Stays in the Absence of a Board Quorum;Department of Veteran Affairs Accountability and Whistleblower Protection Act of 2017

Several items of interest are discussed this week by Peter Broida:Presidential Executive Order of April 27, 2017, directing establishment of Department of Veterans Affairs office for whistleblower and disciplinary oversight.AFGE Local 1482 and Dept. of Navy, Marine Corps, 70 FLRA 214 (May 9, 2017) (arbitrator's treatment of counsel fee application).Peter Broida's May 11, 2017, wish list to MSPB Acting Chair Mark Robbins.

Several items of interest are discussed this week by Peter Broida:Federal Labor Relations Authority 2017 Budget Justification (www.flra.gov/system/files/webfm/FLRA%20Agency-wide/Public%20Affairs/CBJ/FY17%20CBJ%20FINAL%20(2.9.16%20submission).pdf);OPM Workforce Reshaping Operations Handbook: A Guide for Agency Management and Human Resource Offices (www.opm.gov/policy-data-oversight/workforce-restructuring/reductions-in-force/workforce_reshaping.pdf);OPM Guidance for Administrative Furloughs (www.opm.gov/policy-data-oversight/pay-leave/furlough-guidance/guidance-for-administrative-furloughs.pdf);Dept. of Justice, Bureau of Prisons and AFGE COPL 1034, 70 FLRA 195 (April 3, 2017) (counsel fee awards);

Several items of interest are discussed this week by Peter Broida:Abe K. v. Vilsack, Dept. of Agric. (EEOC 0120141252) (sanctions denied for late FAD);Alfred S. v. Colvin, SSA (EEOC 0120140900) (Jan 6, 2017) (sanctions imposed for failure to comply with discovery orders);Dept. of Air Force, Luke AFB v. FLRA (D.C. Cir. 15-1208 Oct. 14, 2016) (nonnegotiability of matters statutorily entrusted to unreviewable agency discretion).

Several items of interest are discussed this week by Peter Broida:Sabio v. VA, 2017 MSPB 4 (Jan. 6, 2017) (use of administrative defense orders by AJs);Little v. USPS, 2017 MSPB 5 (Jan. 6, 2017) (timeliness of appeal; delayed receipt of final agency decision);Delorme v. Dept. of Interior, 2017 MSPB 2 (Jan. 4, 2017) (acceptance of settlements in appeals involving jurisdictional disputes).

Several items of interest are discussed this week by Peter Broida:Wilson v. Dept. of Navy (Fed. Cir. 2015-3225 Dec. 7, 2016) (USERRA challenge to employment action resulting from revocation of security clearance);DHS, C&BP v. AFGE Local 3725, 70 FLRA No. 16 (Dec. 2, 2016) (likelihood of a future request for public comment on the criteria for counsel fee awards in cases within the Authority's jurisdiction);Nielsen v. Hagel (4th Cir. 14-1646 Nov. 15, 2016) (lack of authority of a district court to remand an EEO case to an agency because of a processing error).

Several items of interest are discussed this week by Peter Broida:Morris v. Dept. of Army, 2016 MSPB 37 (Oct. 31, 2016) (format requirements for PFRs and related submissions);Hess v. USPS, 2016 MSPB 40 (Nov. 18, 2016) (reaffirming the availability of compensatory damages in MSPB cases);Hester S. v. Yang, Chair, EEOC (EEOC 0120121983) (Oct. 24, 2016) (revising the law concerning inclusion in settlements of OWBPA language).

Several items of interest are discussed this week by Peter Broida:Gardner v. VA, 2016 MSPB (Oct. 7, 2016) (discrimination and reprisal affirmative defense analytics);Tamara G. v. Yang, Chair, EEOC (EEOC 0120150734) (August 4, 2016) (limitations on the levels of compensatory damages awards);Hau v. DHS, 2016 MSPB 33 (Sept. 19, 2016) (collateral estoppel applied to jurisdictional issues);NAIL, Local 6 and Dept. of Defense, 69 FLRA 573 (Sept. 20, 2016) (counsel fee criteria applied to contract violations);AFGE Local 1815 and Dept. of Army, 69 FLRA 621 (Sept. 28, 2016) (differences in approaches to policy issues among the Authority members);AFGE Local 1992 and Dept. of Defense, 69 FLRA 567 (Sept. 20, 2106) (differences in approaches among the Authority members concerning use of arbitration and Authority processes to resolve complex EEO issues).

Several items of interest are discussed this week by Peter Broida:AFGE Local 2266 and DHS, CBP, 69 FLRA 525 (Aug. 24, 2016) (revisiting and reaffirming the law governing "flagrant misconduct" of union representatives; Scere v. DHS (NP 0752 14 157 I 1) (failure to meet condition of employment: mitigation of removal to reassignment); Walls v. VA (NP DE-0752-13-0278-I-1) (Sept. 7, 2016) (enforcement action: difficulties presented by reliance upon agency counsel's statements as evidence of compliance); Tyner v. Dept. of Agric. (NP DC-0752-16-0098-I-1) (Sept. 7, 2016) (comparison of charges of falsification/misrepresention and lack of candor);Illiana S. V. Yang, Chair, EEOC (EEOC 0120123242) (July 11, 2016) (performance appraisal lowered in reprisal for use of leave as a disability accommodation).

Several items of interest are discussed this week by Peter Broida:Emanuele v. Dept. of Transportation (NP PH-0752-15-0539-I-1) (Aug. 19, 2016) (elections of remedies: MSPB/grievance);Goeke and Bottini v. Dept. of Justice (CB-0752-15-0228-A-1) (Aug. 12, 2016) (counsel fees);Roxane C. V. Carter, Secretary of Defense (EEOC 0120142363) (July 19, 2016) (discrimination based on pregnancy);Rosario-Fabregas v. MSPB (2015-3102 Fed. Cir. Aug. 16, 2016) (enforced leave; constructive suspensions and conditions placed upon return to work);Osman v. Dept. of Army (NP PH-0752-15-0030-I-2) (Aug. 11, 2016) ("conduct unbecoming." sex harassment, and Title VII burdens of proof).

Several items of interest are discussed this week by Peter Broida:Davis v. Dept. of Navy (NP DA-0752-14-0285-I-1) (July 5, 2106) (ex-parte communiations and post-reply interview by agency counsel);Mellick v. Dept. of Interior (NP SF-0752-16-01201-I-1) (July 8, 2016) (implications of agency breach of last chance agreement);Beg v. DHHS (NP DC-0432-13-3191-I-1) (July 5, 2016) (employee access to files and email to assist in the preparation of a reply to a proposed action);Morrison v. Dept. of Navy (NP PH-0752-14-0669-B-1) (June 28, 2016) (effect of incorrect information on retirement benefits from a supervisor in an involuntary retirement appeal);Nunnery v. Dept. of Agriculture (NP DA-0752-15-0378-I-1 (June 9, 2016) (ex parte communications: consideration by the deciding official of the appellant's lack of remorse);Rainey v. MSPB (2015-3234 Fed. Cir. June 7, 2016) (scope of "right to disobey" provisions of the 2012 WPEA);Geraldine G. v. Brennan (EEOC 0720140039) (June 3, 2016) (ADEA: effect of questions concerni

Several items of interest are discussed this week by Peter Broida:Gray v. MSPB (2015-3186 Fed. Cir. May 25, 2016) (NP) (WPEA protection for filing an EEO complaint);Turner v. VA (NP AT-4324-15-0675-I-1) (June 2, 2016) (USERRA shifting burden of proof);Vocke v. Dept. of Commerce (NP DC-1221-13-1266-W-1) (May 2, 2016) (whether a letter of counseling is a threatened personnel action under the WPA);Tartaglia v. VA (NP DC-0752-14-1108-I-1) (May 5, 2016) (permissible assistance by agency officials to individuals seeking agency employment);EEOC Issuance: "Employer-Provided Leave and the Americans with Disabilities Act" (May 9, 2016);Special Counsel ex rel. Klein v. VA (NP CB-1208-16-0023-U-1) (6/1/2016) (consideration of agency position during initial stay application).

Several items of interest are discussed this week by Peter Broida:Cahill v. MSPB (2015-3152 Fed. Cir. May 10, 2016) (IRA disclosures; specific notice of deficiencies required from MSPB or agencies in preliminary jurisdictional challenges);Lal v. MSPB & DHHS (2015-3140 Fed. Cir. May 11, 2016) (MSPB jurisdiction over appeals by employees appointed under specialized agency statutory authority permitting hiring without regard to civil service laws);Zygmunt v. Dept. of Navy (NP PH-0752-0292I-1) (5/13/2016) (knowledge of whistleblower disclosures gained by deciding official during an adverse action reply);O'Lague v. VA, 2016 MSPB 20 (May 11, 2016) (elements of material gain in a falsification charge; elements of a charge of lack of candor);Fargnoli v. Dept. of Commerce, 2016 MSPB 19 (May 6, 2016) (elements of a charge of lack of candor);Dept. of Defense, Scott AFB and ACT Chap 111, 69 FLRA 345 (May 3, 2016) (management rights defense to a grievance protesting failure of agency to follow its internal regulations

Several items of interest are discussed this week by Peter Broida:Bautz v. Dept. of Treasury (NP AT-1221-15-0577-W-1) (April 18, 2016)) (enforcement of a settlement release in an EEO case in a subsequent IRA appeal);Doe v. Dept. of Navy (AT-0752-15-0206-I-1) (April 21, 2106) (due process: incorporation by reference into a proposal of materials from an evidence file);Scarlet M., et al. V. Mabus, Secretary, Dept. of Navy, OFO 0120150940 (April 13, 2016) (lack of due care defense in a hostile environment case for harm already suffered by the complainants).