ksaldarini@govexec.com
Every Friday on GovExec.com, Legal Briefs reviews 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.
Patty Gallagher probably knew that lawyers for the Air Force would try to make her look bad after she was accused of abusing a government travel charge card program. Gallagher had been fired for failing to pay off her charge card debt and misrepresenting the agency. She probably didn't expect the judge in her case to talk poorly of her too. But that's what happened.
During a recess at her hearing, Gallagher, her lawyer, and the person videotaping the hearing overheard the administrative judge in her case make disparaging remarks about Gallagher, her case, and the truthfulness of a witness who testified in her defense.
Gallagher immediately petitioned the Merit Systems Protection Board for review of her case. MSPB agreed that the circumstances of the case did not make for an impartial hearing. Gallagher was granted another try with a different judge.
Lesson: Remember what your mother said: Don't talk about people behind their back.
Patty N. Gallagher v. Air Force (DC-0752-98-0805-I-1), Merit Systems Protection Board, Nov. 23, 1999.
Bargaining Battle Sequel
Late last year, the Federal Labor Relations Authority ruled that the Social Security Administration didn't have to bargain with its union over so-called "permissive issues" unless management wanted to (See "Bargaining Battle", Jan. 7). Permissive issues are defined in federal labor relations statute section 7106(b)(1) as topics including the numbers, types, and grades of employees.
But in a different decision two weeks earlier, the authority sided with an arbitrator who ruled that SSA had in fact agreed to bargain over permissive issues.
While the two cases involved the same parties and the same labor-management contract language, they dealt with different arguments. In the earlier case, FLRA found SSA had failed to show that the arbitrator's interpretation of the agency's bargaining agreement with the union was unreasonable. Arbitrators have the authority to decide disputes over contract interpretation, so SSA had to comply. In the Nov. 30 decision, the authority held that the agency's own decision in that particular case to handle permissive issues in partnership council meetings instead of formal bargaining sessions was reasonable.
The murkiness of the language allowed various interpretations on similar issues.
Lesson: Make sure to clearly define the scope of bargaining in labor-management agreements, so they aren't open to multiple interpretations.
Social Security Administration v. American Federation of Government Employees, 55 FLRA No. 173, Federal Labor Relations Authority, Nov. 12, 1999; Social Security Administration v. American Federation of Government Employees, 55 FLRA No. 182, Federal Labor Relations Authority, Nov. 30, 1999
Peeved About Promotions
Suffering from a backlog of disability claims, the Social Security Administration's Office of Hearings and Appeals started a short-term project to allow some lawyers to review incoming requests for hearings on disability claims and issue decisions. The group of lawyers were given temporary promotions to GS-13 for up to two years to work on the backlog.
But a turf war began at the office when lawyers from its Medicare division caught wind of the disability lawyers' promotions. They asked to be included in the program, but the agency said no.
The Medicare lawyers contacted their union, American Federation of Government Employees Local 3615, which filed a class action grievance on their behalf. The Medicare lawyers alleged they had not been selected for the promotions due to racial and disability discrimination.
An arbitrator found that the agency did nothing wrong. First, while the lawyers chosen for the program were already authorized to review disability cases, the Medicare lawyers were not. To authorize them, the Health Care Financing Administration would have to make a regulatory change. Second, the Medicare lawyers did not work in the office where the disability hearings were being held, a big impediment to the efficiency of the hearings.
Finally, the group of Medicare lawyers included black men, white men, men with disabilities, black women, white women and one Asian woman. Such a varied group of people cannot demonstrate membership in a protected class, the arbitrator ruled. Therefore, the charge of discrimination was thrown out.
The union asked the Federal Labor Relations Authority to review the case, but the FLRA upheld the arbitrator's decision.
Lesson: No one likes to see their peers make more money than them.
AFGE Local 3615 vs SSA, Office of Hearings and Appeals (55 FLRA No. 187), Federal Labor Relations Authority, Dec. 20, 1999