New Approach to Falsification of Employment Applications

The MSPB has taken a fresh look at its old attitude on falsification of employment applications. Previously, the Board almost always sustained removal for such falsification no matter what the circumstances, on the basis that the employee improperly obtained the job. In Perez v. U.S. Postal Service, 35 GERR 1010 (1997), the Board mitigated removal to a written reprimand, since the employment application was submitted in 1982, since the employee had committed no misconduct during his employment and since the criminal conviction he concealed was not a very serious matter.

Vauge Charge/ No Charge

In a disturbing development, the MSPB ruled in Otero v. U.S. Postal Service, 73 MSPR 198 (1997) that agencies are not required to label misconduct with any particular charge, such as falsification, theft or AWOL. The MSPB said that an agency can simply charge "unacceptable conduct" and then describe specific actions on the employee's part which it believes impairs the efficiency of the service. If an agency chooses to make a particular charge, however, then the agency will be required to prove the elements of that charge. We think this runs contrary to the requirements of the Constitution, as interpreted by the Supreme Court, which mandate both a charge and an explanation of the evidence. The MSPB did not mention the Supreme Court decisions in its decision.

When AWOL is Appropriate

In Patterson v. Dept. of the Air Force, 74 MSPR 648 (1997) the MSPB clarified when an employee can be charged AWOL. If the employee has sufficient sick leave, he may not be charged with AWOL if he can produce medical evidence to justify his absence. If the employee has exhausted all leave, however, he may be placed in an AWOL status even if he is incapacitated, if there is no foreseeable end to his absence and the absence is a burden on the agency.

EEO Rulings

Employees who just "go through the motions" in the administrative process so they can get to federal court must be careful to participate in the process nevertheless. In Barnes v. Levitt, 35 GERR 1072 (5th Cir. 1997), an employee's federal lawsuit was dismissed on the basis that he failed to exhaust his administrative remedies. The problem was that the employee repeatedly refused to answer questions, provide details, make a statement or give a deposition during the administrative process.

In an interesting development, the Fourth Circuit ruled that white male employees have standing to complain about sexual and racial harassment of female and black co-workers. The Court agreed with the employee that the supervisor's behavior created a hostile environment for everyone and had a negative affect on working conditions. Childress v. Richmond, 74 FEP Cases 749 (4th Cir. 1997).

The FLRA issued a number of interesting decisions recently, mostly reaffirming old principles:

• An arbitrator cannot grant a remedy to employees not covered by a grievance. Thus, an arbitrator's award of administrative leave to all bargaining unit employees was modified to cover only the 12 grievants. Social Security Administration, 53 FLRA No. 10 (1997).

• An arbitrator's decision that refuses to grant interest on back pay is contrary to law. Naval Training Center, 53 FLRA No. 15 (1997).

• There is an important difference in the rules for granting environmental differential pay between Wage Grade and General Schedule employees. As to WG employees, an arbitrator is free to determine what level of proof or exposure need be shown to qualify for EDP. As to GS employees, however, based on the applicable OPM regulations, exposure at or above the OSHA threshold is necessary. Red River Army Depot, 53 FLRA No. 11 (1997).

• An arbitrator's award that requires an agency to arrange and pay for college courses for a grievant is not contrary to law so long as the courses are directly related to the employee's performance of official duties. Bureau of Mines, 53 FLRA No. 8 (1997).

• Contractual provisions that prohibit management practices designed to avoid the payment of overtime continue to be difficult to enforce. In U.S.P. Levenworth, 53 FLRA No. 22 (1997) an arbitrator sustained a grievance that challenged the assignment of bargaining unit work to a supervisor rather than to a unit employee to avoid paying overtime. The FLRA said the award was contrary to law since it interfered with the right to assign work.
• The FLRA has issued a couple of confusing decisions about the power of arbitrators to raise performance appraisal ratings. Although the FLRA claimed it was modifying past decisions, the modifications are not easy to spot. The FLRA emphasized that a rating may not be raised solely on the basis of the arbitrator's own independent assessment of the grievant's work or solely based
  on a guess as to what rating the grievant would have received if different standards were used. Instead, the arbitrator must make a finding that he is able to determine what the grievant's rating would have been if management had not violated the law, applicable regulations or the labor contract. Bureau of Engraving and Printing, 53 FLRA No. 21 (1997). Luckily, FLRA has said that an arbitrator need only make this finding; he doesn't have to explain it. Whether any arbitrator would be able to explain such a finding is questionable in light of the FLRA's own convoluted reasoning.

• Its nice to know that meaningful remedies are still available for bargaining violations, at least sometimes. In Army Corps of Engineers, Memphis District, 53 FLRA No. 14 (1997) the Authority concluded that the union was not provided specific and definitive notice of management's decision to eliminate a certain position in the bargaining unit. Even though impact and implementation bargaining was all that was required, the violation of the statute persuaded FLRA that a status quo ante remedy was required, reinstating the position.