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NEWS AND CASE ALERT

March 25th, 2024 | Issue #16-02

TABLE OF CONTENTS

PRESIDENT BIDEN REESTABLISHES LABOR-MANAGEMENT FORUMS

MSPB STILL INVOLVED IN CHALLENGES TO AUTHORITY OF ADMINISTRATIVE JUDGES

BUDGETS REMAIN STATIC FOR MSPB AND FLRA

We offer legal reference books and audiovisual training on federal civil service, equal employment, and labor law, for attorneys, unions, arbitrators, managers, and agency personnel offices. A small business for over 39 years.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email

DEWEY PUBLICATIONS NEW RELEASES

A Guide to Federal Sector Disability Discrimination Law and Practice

Written by the late Ernie Hadley and updated by Natania Davis, author of A Guide to Federal Sector Equal Employment Law and Practice, the Guide to Federal Sector Disability Discrimination Law and Practice is a seminal text on disability discrimination case law, statutes, and regulations interpreting and implementing the ADA, ADAAA, Rehabilitation Act, GINA, and Drug Abuse Act. (more details)

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Federal Sector Disability Discrimination Law Deskbook

Updated with cases through mid-2023, the Disability Deskbook is an extensive compilation of decisions interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations, and covers all disability related topics. (more details)

PRESIDENT BIDEN REESTABLISHES LABOR-MANAGEMENT FORUMS

Like a seesaw, the labor-management forum has enjoyed favor or suffered disfavor, expressed through executive orders, from one presidential administration to another. By his March 6, 2024 Executive Order, "Scaling and Expanding the Use of Registered Apprenticeships in Industries and the Federal Government and Promoting Labor-Management Forums," President Biden directed agencies to establish (or continue) L-M Forums at levels of recognition (or at other levels, as parties agree), "to help identify problems and propose solutions to better serve the public and agency mission." The Order requires agencies to allow employees and their union representatives pre-decisional involvement in workplace matters.


There's no recent (and not much in the way of not-so-recent) academic or government review of the effectiveness of L-M committees. The balance of their cost in time of participants and results achieved is likely best measured at a unit level; some overall study and conclusions would help the L-R community. If these groups succeed, collective bargaining is enhanced; impasse proceedings, negotiability appeals, and ULPs are reduced.

2024 DEWEY PUBLICATIONS PRODUCTS

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A Guide to Merit Systems Protection Board Law and Practice

In three volumes, updated annually, the MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law. Major topics include jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, prohibited personnel practices, retirement, attorney fees, settlement, remedies, and judicial review. (more details)

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A Guide to Federal Labor Relations Authority Law and Practice

In two volumes, Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and constraints on arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. Major topics include jurisdiction, unit determinations and elections; labor organizations; procedures and substantive limitations on and specific applications of negotiability determinations; the Federal Service Impasses Panel; ULPs and remedies; review of arbitration awards; and administrative reconsideration and judicial review. (more details)

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A Guide to Federal Sector Equal Employment Law and Practice

Updated annually, the EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details)

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MSPB Charges & Penalties: A Charging Manual

Annually-updated, a Dewey best seller. Using Board and Federal Circuit cases as examples, Charges & Penalties offers comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. (more details)

MSPB STILL INVOLVED IN CHALLENGES TO AUTHORITY OF ADMINISTRATIVE JUDGES

When MSPB resumed operations with a quorum in March of 2022, its first item of business was on March 4, 2022: the members issued a "Ratification Order" for the MSPB AJs, affirming their delegation of authority to adjudicate cases for Board members appointed by the President and confirmed by the Senate. Then the Federal Circuit determined in McIntosh v. DOD, 53 F.4th 630 (Fed. Cir. 2022), that the Board exercised sufficient control over AJs' decisions to meet constitutional Appointments Clause requirements.


In Davis-Clewis v. VA, 2024 MSPB 5 (2024), on interlocutory appeal, MSPB decided it lacked authority to decide a constitutional challenge to AJs' status; little mention was made of McIntosh. (MSPB's position is that it lacks the authority to decide the constitutionality of federal statutes, and a challenge to the appointment of an AJ amounts to a challenge to the constitutionality of the statutes establishing the structure and authority of MSPB.) The Board appeal was remanded for merits adjudication, leaving the appellant to await a final decision and, possibly, try for reevaluation of McIntosh in the Federal Circuit.


https://www.mspb.gov/decisions/precedential/Davis-Clewis_Vera_DA-0752-23-0162-I-1_Opinion_and_Order.pdf

2024 DEWEY PUBLICATIONS PRODUCTS

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Representing Agencies and Complainants Before the EEOC

In its 4th edition, this Dewey classic provides comprehensive analysis of federal sector practice before the EEOC. Major topics include individual and class complaint processes, theories of discrimination, pre- and post-investigation case evaluations, discovery, settlement, hearing practice, class actions, remedies, and post-hearing procedures. (more details)

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UnCivil Servant: Holding Government Employees Accountable for Performance and Conduct

Ideal for federal supervisors and managers, and anyone who advises them, this handbook is a practical guide on misconduct, performance and discipline. Major topics include the fundamental elements of disciplinary and performance actions, removal procedures, the defense of a penalty, special challenges to adverse actions, and nontraditional disciplinary techniques. (more details)

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MSPB Case Summaries

Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2024 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details)

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Federal Sector Telework: Law and Cases

As a result of the COVID pandemic, telework is much more common. Much has changed. This new edition explores these changes. Federal Sector Telework is an essential handbook on telework for managers, supervisors, HR officials, and representatives of agencies and complainants. (more details)

BUDGETS REMAIN STATIC FOR MSPB AND FLRA

Budget justifications most recently offered to Congress by the Board and the Authority call for more funding to hire more personnel, better address backlogs, and develop (or keep up with) new technology. This past week Congress approved and the President signed a comprehensive budget that appears to maintain the two agencies' appropriations at last year's levels.


With its current funding, MSPB is reducing its inventory of PFRs that developed from 2017-2022; recently MSPB produces 15-20 decisions daily—many of them brief—but be they brief or extensive, the backlog is diminishing (as new PFRs are added to the mix). FLRA is without a General Counsel—it cannot issue ULP complaints until the position is filled; but FLRA adjudicates the exceptions to arbitration awards and negotiability appeals it receives at the national level, and the regional offices process representation cases and do preliminary work on ULP cases (settling some). Each agency is short one member. At MSPB, Ms. Harris was confirmed as Chairman on March 6; Mr. Limon became Vice Chairman.

2024 DEWEY PUBLICATIONS PRODUCTS

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Consolidated Federal Sector EEO Update 2004-2024

Updated annually, this comprehensive text digests notable Commission and federal court employment discrimination decisions from 2003 through early 2024 and reviews EEO laws, regulations, and guidance. Major topics include recent trends in the law; bases of discrimination; attorney fees; class actions; compensatory damages; appellate review; evidence; harassment; hearings; mixed cases; procedures; remedies; reprisal; settlement; and sexual harassment. (more details)

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Compensatory Damages and Other Remedies

In Federal Sector Employment Discrimination Cases

A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2024 and a chart of significant awards. Major topics include equitable and compensatory damages, proving damages, mitigation and offset, back pay, collateral source rule, tax consequences, settlement, managing discovery, calculating damages, and attorney fees. (more details)

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A Guide to the Whistleblower Protection Act and Whistleblower Protection Enhancement Act

With practice tips, this guide sorts the laws and procedures related to whistleblower reprisal. The guide includes in depth discussion of the Whistleblower Protection Act, the Whistleblower Protection Enhancement Act, noteworthy cases, and the Presidential Policy Directive (PPD-19). Major topics include legislative history and sources of law; OSC operations; corrective and disciplinary actions; IRAs and otherwise appealable actions; grievances and whistleblower reprisal claims; stays; burdens of proof; qualifying disclosures; prima facie cases and contributing factor analysis; clear and convincing evidence; remedies, damages and relief; administrative and judicial review; and intelligence community whistleblower protections. (more details)

The Dewey Publications Podcast
Monthly Peter Broida will discuss new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC.

FREE to subscribe via iTunes or RSS

View a detailed list of all past episodes at deweypub.com/podcast

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Collective Bargaining Law for the Federal Sector

Covid-19 and Federal Sector Labor and Employment Law

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