The Dewey Publications Podcast

Topic discussed this week by Peter Broida:Doe v. Dept. of State, 2022 MSPB 38 (Nov. 29, 2022) (counsel fees);Haas v. DHS, 2022 MSPB 36 (Nov. 7, 2022) (medical inability to perform);AMC Redstone Arsenal and NFFE Local 1332, 73 FLRA 356 (Dec. 8, 2022) (interlocutory exceptions);Marine Corps, Twentynine Palms, and AFGE Local 2018, 73 FLRA 379 (Dec. 9, 2022) (temporary promotions);Buy Dewey books at deweypub.com

Topic discussed this week by Peter Broida:Doyle T. v. Air Force, EEOC 2022004281 (9/30/2022) (disability discrimination);Thomas v. Dept. of Army, 2022 MSPB 35 (10/20/2022) (inappropriate workplace conduct);Chin v. DOD, 2022 MSPB 34 (10/7/2022) (mitigation: dissent by Member Leavitt)Buy Dewey books at deweypub.com

Topic discussed this week by Peter Broida:Oram v. Dept. of Navy, 2022 MSPB 30 (Aug. 31, 2022) (VEOA);Johnson v. Dept. of Air Force, Fed. Cir. 2021-1579 (Sept. 26, 2022) (due process);Kotsis v. Dept. of Transportation, MSPB AT-0432-16-0006-I-1 (Aug. 9, 2022) (ADA)Buy Dewey books at deweypub.com

Topic discussed this week by Peter Broida:NTEU v. FLRA (D.C. Cir. 20-1400 August 2, 2022) (reviewing FLRA Guidance);Bishop v. Dept. of Agric., 2022 MSPB 28 (August 18, 2022) (scope of IRA/EEO allegations)Buy Dewey books at deweypub.com

Topic discussed this week by Peter Broida:AFGE Local 13 and Dept. of Army, Rock Island, Illinois, 73 FLRA 125 (July 21, 2022)Martin v. USPS, 2022 MSPB 22 (July 20, 2022)Collazo v. USPS, PH 3443-21-0263-I-1 (July 29, 2022)Buy Dewey books at deweypub.com

Topic discussed this week by Peter Broida:Comparators: Where are we going?Singh v. USPS, 2022 MSPB 15 (May 31, 2022)Buy Dewey books at deweypub.com

Topic discussed this week by Peter Broida:Lee v. VA, 2022 MSPB 11 (5/12/2022)Edwards v. Dept. of Labor, 2022 MSPB 9 (5/5/2022)Newly-confirmed Member at FLRA

Topic discussed this week by Peter Broida:State of the BoardRossbach v. Dept. of Interior, DC-315I-14-0066-B-1 (3/30/22)Shibuya v. Dept. of Agriculture, DE-1221-09-0295-B-1 (3/31/22)Buy Dewey books at deweypub.com

Topic discussed this week by Peter Broida:Permissive Bargaining and President Biden's Executive OrderBuy Dewey books at deweypub.com

Topics discussed this week by Peter Broida:AFGE Local 3369 and SSA, 72 FLRA 619 (Jan. 14, 2022) (exceptions jurisdiction: matters collateral to removals)DOJ Executive Office for Immigration Review and Nat'l. Ass'n. of Immigration Judges, IFPTE, 72 FLRA 622 (Jan 21, 2022) (management/unit status of Immigration Judges)Smolinski v. MSPB (Fed. Cir. 2021-1751 Jan. 19, 2022) (whistleblower hostile environment allegations; remedial exhaustion)Gessel v. MSPB (Fed. Cir. 2021-1815 Jan. 19, 2022 NP) (whistleblower hostile environment allegations; co-worker interaction)Buy Dewey books at deweypub.com

Topics discussed this week by Peter Broida:Executive Order 14025 (April 26, 2021) and OPM Guidance ("Worker Organizing and Empowerment")Restrictions on bargaining: zipper clauses, the "covered by" doctrine, and waivers during negotiationsBuy Dewey books at deweypub.com

Topics discussed this week by Peter Broida:Knapp v. MSPB (Fed. Cir. 2020-2122 Nov. 17, 2021 NP) (IRA jurisdiction on matters related to clearance suspension)Alvarez v. Azar (D.MD. CA CCB-20-2626 Sept. 23, 2021) (attempt to prevent HHS from lodging objections to authority of MSPB AJs to adjudicate appeals)Davis v. MSPB (ED Ill. No. 20-cv-2139 Nov. 9, 2020) (attempt to prevent MSPB AJs from granting HHS motions to DWOP appeals pending resolution of authority of MSPB AJs to adjudicate appeals)Buy Dewey books at deweypub.com

Topics discussed this week by Peter Broida:Potter v. VA (Fed. Cir. 2021-1460) (October 25, 2021) (IRA factual and contributing factor (Cat's Paw) analysis).Buy Dewey books at deweypub.com

Topics discussed this week by Peter Broida:DHUD and AFGE Local 3972, 72 FLRA 450 (August 27, 2021) (jurisdictional defect in arbitration: union's failure to provide management a contractually-required notice of intent to invoke arbitration);Marine Corps Air Ground Combat Center and AFGE Local 2018, 72 FLRA 473 (September 15, 2021) (jurisdictional defect in arbitration: untimely grievance and arbitration request);DHS, C&BP and AFGE Local 3307, 72 FLRA 463 (September 8, 2021) (arbitration: counsel fee award set aside as contrary to law under several Allen factors).

Topics discussed this week by Peter Broida:The "clear and convincing" evidentiary standard and judicial interpretation: Insurance Co. v. Nelson, 103 U.S. 544 (1880); Helvering v. Fitch, 309 U.S. 149 (1940); Allentown Mack Sales & Serv. v. NLRB, 522 U.S. 359 (1998); Addington v. Texas, 441 U.S. 418, 425 (1979); California ex rel. Cooper v. Mitchell Brothers Santa Ana Theater, 454 U.S. 90, 93 (1981); Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983); Colorado v. New Mexico, 467 U.S. 310 (1984).Buy Dewey books at deweypub.com

Topics discussed this week by Peter Broida:Smith v. McDonough(Fed. Cir. 20-1354) (April 24, 2021) (valuation of counsel fee requests for case reviews)OPM Guidance on labor-management partnerships and pre-decisional involvement (May 18, 2021)

One topic discussed this week by Peter Broida:United States v. Arthrex, Inc. (Supreme Court No. 19-1434) ( June 21, 2021);

Topics discussed this week by Peter Broida:Beck v. Dept. of Navy (Fed. Cir. 2019-1205) (May 14, 2021) (USERRA; preselection);Buy Dewey books at deweypub.com

The hundredth podcast: Tribute to Ernie Hadley and Reflections on the State of Civil Service Law

Several items of interest are discussed this week by Peter Broida:NLRB and NLRBU, 72 FLRA 133 (March 14, 2021) (jurisdiction of arbitrator to review agency decision on debt collection);Santos v. NASA (Fed. Cir. 2019-2345) (proof of unacceptable performance before institution of a PIP);OPM Guidance to Agency Heads for Implementation of Executive Order 14,003 (March 5, 2021)

Several items of interest are discussed this week by Peter Broida:Executive Order 14003 (Jan. 22, 2021), revoking Trump Executive Orders and Schedule F;Holmes v. USPS (Fed. Cir. 2019-1973 Feb. 8, 2021) (significance of arbitration awards in MSPB analysis of disparate penalties);Huang v. DHS (9th Cir. 20-70242 Jan. 15, 2021 NP) (lack of whistleblower protection for inappropriate comments to supervisor)

Several items of interest are discussed this week by Peter Broida:POPA and PTO, 71 FLRA 1223 (Dec. 23, 2020) (Effect of EO 13837 on negotiability of official time and allowances, subjects of bargaining);DOJ Bureau of Prisons and AFGE Local 3690, 71 FLRA 1247 (Dec. 29, 2020) (official time and the "carve out" doctrine);DHS C&BP and AFGE Local 1929, 72 FLRA 3 (2021) (bargaining obligations: conditions of employment and working conditions)

Several items of interest are discussed this week by Peter Broida:DOJ, Executive Office of Immigration Review and Nat'l. Ass'n. of Immigration Judges, 71 FLRA 1046 (2020) (Nov. 2, 2020) (unit [management] status of judges)Hessami v. MSPB (Fed. Cir. 2019-2291 Nov. 9, 2020) (analysis required by MSPB for nonfrivolous IRA allegations)

Several items of interest are discussed this week by Peter Broida:Dept. of Agriculture, OGC (Statement of Policy & Guidance, 71 FLRA 986 (Sept. 30, 2020) (effect of rollover, renegotiation, or continuation of contracts on government-wide or agency regulations blocked by existing contract)Dept. of Education, (Statement of Policy and Guidance, 71 FLRA 968 (Sept. 30, 2020) (threshold level of changes in employment conditions required to trigger bargaining obligation);OPM regulations of October 16, 2020 (adverse and performance-based actions and settlements)Executive Order of October 21, 2020, creating Schedule F in the Excepted Service

Several items of interest are discussed this week by Peter Broida:Jenkins v. DOT (Fed. Cir. 2019-2075 August 6, 2020 NP) (off-duty speech and nexus);National Right to Work Legal Defense Foundation, Inc., 71 FLRA 923 (August 19, 2020) (official time of union officials for lobbying);Dept. Of Agric., OGC and AFGE Local 1106, 71 FLRA 910 (August 12, 2020) (stays of FSIP orders);Aviles-Wynkoop v. DOD (Fed. Cir. 2019-1908 Sept. 2, 2020 NP) (adverse action due process; evidence admissible before MSPB)

Several items of interest are discussed this week by Peter Broida:Kent v. MSPB (Fed. Cir. August 5, 2020 NP) (probationary appointments; reappointment authority); Jenkins v. DOT (Fed. Cir. August 6, 2020) (nexus and off-duty conduct impacting the workplace); NWSEO v. FLRA(D.C. Cir. July 31, 2020) (scope of FLRA review of arbitrator's contract interpretation); MSPB virtual hearing procedures

Several items of interest are discussed this week by Peter Broida:AFGE Local 3430 and DHHS, NIOSH, 71 FLRA 881 (July 13, 2020) (proper support for positions taken in negotiability appeal); AFGE Local 1929 v. FLRA (D.C. Cir. 19-1069 June 9, 2020) (conditions of employment and working conditions)Young v. MSPB (Fed. Cir. 2019-2269 June 11, 2020) (IRA does not include EEO reprisal)Cerulli v. DOD (Fed. Cir. 2019-2022 June 9, 2020) (IRA does include a fitness exam)

Several items of interest are discussed this week by Peter Broida:Wine v. MSPB (Fed. Cir. May 21, 2020 NP) (Special Counsel as IRA respondent)Air Force, Warner Robins AFB and AFGE Local 987, 71 FLRA 758 (2020) (election of remedies: EEO/grievance)VA Gulf Coast Healthcare System and AFGE Local 1045, 71 FLRA 752 (2020) (whether an arbitrator's email is an award subject to exceptions to FLRA)

Several items of interest are discussed this week by Peter Broida:Sayers v. VA (Fed. Cir. 2018-2915) (March 31, 2020) (retroactivity of 2017 statute governing evaluation by MSPB of VA misconduct adverse actions);Noffke v. Dept. Defense (Fed. Cir. 2019-2193 NP) (April 8, 2020) (use of swipe records in AWOL cases; hearsay value of OIG reports);SBA v. AFGE Local 288, 71 FLRA 655 (April 2, 2020) (application of Bolling standards to grievances challenging disciplinary actions);SSA v. Ass'n. ALJs, IFPTE, 71 FLRA 652 (March 31, 2020) (jurisdiction of FLRA to stay FSIP proceeding);Sistek v. VA (Fed. Cir. 2019-1168) (April 8, 2020) (retaliatory investigation claimed as covered IRA personnel action);Babb v. Wilkie (Supreme Court No. 18-882) (April 6, 2020) (burden of proof in federal sector age discrimination cases)

Several items of interest are discussed this week by Peter Broida:Dept. of Justice, Bureau of Prisons and AFGE Local 614, 71 FLRA 538 (1/3/2020) (interference: barring union counsel from worksite)Sanchez v. VA (Fed. Cir. 2018-2171) (2/10/2020) (duration of condition of settlement when no time limitation is stated)VA and AFGE Local 2338, 71 FLRA 533 (1/29/2020) (exceptions jurisdiction: claimed coerced retirement)

Several items of interest are discussed this week by Peter Broida:FLRA determinations on Requests for Statements of Policy and GuidanceHolland v. MSPB (Fed. Cir. 2019-1388 NP) (Jan. 6, 2020) (constructive suitability appeals)Arthrex, Inc. V. Smith & Nephew, Inc. (Fed. Cir. 2018-2140) (Oct. 31, 2019) (validity of appointments of Administrative Patent Judges)

Several items of interest are discussed this week by Peter Broida:Army Corps of Engineers, Little Rock and IBEW Local 2219, 71 FLRA 451 (Dec. 4, 2019) (unit definitions; reorganizations);Annalee D. v. Murphy (GSA), EEOC Recon. 0120170991 (Nov. 27, 2019) (involvement of agency counsel in EEO counseling and investigative processes)

Several items of interest are discussed this week by Peter Broida:McGuffin v. SSA (Fed. Cir. 2017-2433) (Nov. 7, 2019) (USERRA discrimination: trial period termination)AFGE Local 3310 and Dept. Of Army, Corps of Engineers, 71 FLRA 395 (Nov. 7, 2019) (FLSA; good faith; liquidated damages)Dept. of Treasury, IRS and NTEU, 71 FLRA 400 (Nov. 13, 2019) (arbitration: counsel fees)Dept. of Treasury, IRS and NTEU Local 299, 71 FLRA 387 (Nov. 4, 2019) (arbitration: remedial authority concerning performance ratings)Presidential Memo: Delegation of Removal Authority Over FSIP (Nov. 12, 2019)

Several items of interest are discussed this week by Peter Broida:Dept. of Army Medical Activity Ft. Meade and AFGE Local 1923, 71 FLRA 368 (Oct. 10, 2019) (accretion of duties)Presidential Memorandum of October 11, 2019, on Executive OrdersOPM Proposed Rules Involving Executive OrdersSSA and AFGE Local 3627, 71 FLRA 355 (Sept. 30, 2019) (remedial authority of arbitrators)

Several items of interest are discussed this week by Peter Broida:Feuer v. NLRB (Fed. Cir. 2019-1390) (Sept. 13, 2019)Mount v. DHS (1st Cir. 18-1762) (Aug. 29, 2019)Tang v. MSPB (Fed. Cir. 18-2188) (Sept. 13, 2019) (oral argument) [search on 2018-2188.mp3]

Several items of interest are discussed this week by Peter Broida:Export-Import Bank and AFGE, 71 FLRA 248 (2019) (definition of professional employee; election requirements when through unit clarification proceeding employees entering the unit exceed 50% of the total unit)Smith v. GSA, (Fed. Cir. 2018-1604) (July 19, 2019) (remand: application of clear and convincing evidentiary standard and Carr factors)

Several items of interest are discussed this week by Peter Broida:AFGE Local 1633 and VA DeBakey Medical Center, 71 FLRA 211 (July 10, 2019) (attorney fee standards for grievances resulting in payment of benefits, e.g., environmental differential pay)AFGE Local 2076 and DHS, CIS, 71 FLRA 221 (July 10, 2019) (attorney fee standards for grievances resulting in mitigation of minor disciplinary suspensions)DL et al. v. District of Columbia, 924 F.3d 585 (2019) (application of Laffey Matrix)

Several items of interest are discussed this week by Peter Broida:Borza v. Dept. Commerce, (Fed. Cir. 2018-1873) (nonprecedential) (May 29, 2019) (arbitration: time-served suspensions)SSA OHA and IFPTE AALJs, 71 FLRA 123 (May 16, 2019) (election of remedies: EEO grievance)DHS C&BP and AFGE Border Patrol Council, 71 FLRA 119 (May 15, 2019) (arbitration: official time justification)

Several items of interest are discussed this week by Peter Broida:Lucia v. SEC (Supreme Court June 2018), and its application to the MSPBHiller v. DHS, (Fed. Cir. 2018-1244) (nonprecedential) (April 22, 2019) (MSPB prehearing submissions and witness statements)DHS, C&BP and National Border Patrol Council, 71 FLRA 106 (April 10, 2019) (application of "essence" review authority to substantive determination of arbitrator on grievance concerning approval for outside employment)

Several items of interest are discussed this week by Peter Broida:Hickey v. DHS, (Fed. Cir. 2018-1585) (nonprecedential) (March 22, 2019) (whistleblower reprisal: counsel fees [Laffey rate]; compensatory and consequential damages)

Several items of interest are discussed this week by Peter Broida:VAMC Orlando and AFGE Local 2779, 71 FLRA 13 (Feb. 8, 2019)Ryan v. DOD (Fed. Cir. 2018-1524) (nonprecedential) (Feb. 13, 2019)Dobyns v. United States (Fed. Cir. 2015-5020) (precedential) (Feb. 6, 2019)

Several items of interest are discussed this week by Peter Broida:Koester v. US Park Police (Fed. Cir. 2017-2613) (nonprecedential) (Jan. 3, 2019) (evaluation by arbitrator of new evidence concerning mitigation))Do v. HUD (Fed. Cir. 2018-1147) (precedential) (Jan. 14, 2019) (due process errors resulting when MSPB sustains adverse action on a charge not noticed))EPA and AFGE Council 238, 70 FLRA No. 199 (Dec. 21, 2018) (standards for analysis of motivation in EEO challenge to nonselection)

Several items of interest are discussed this week by Peter Broida:SBA and AFGE Local 3841, 70 FLRA 729 (July 19, 2018) (factors required to establish entitlement to a temporary promotion under a labor contract)VA Medical Center Richmond and AFGE Local 2145, 70 FLRA 900 (October 12, 2018) (discretion of arbitrator in determining issues and remedies in the absence of a stipulated issue)OPM Interpretive Guide on Section 5 Ensuing Integrity of Personnel Files Contained in Executive Order 13839: (October 10, 2018)

Several items of interest are discussed this week by Peter Broida:Dept. of Justice, Bureau of Prisons and AFGE Local 3978, 70 FLRA No. 140 (July 13, 2018) (arbitration: FLSA overtime analysis: "principal activities")Dept. of Navy, Puget Sound and Bremerton MTC, 70 FLRA No. 152 (Aug. 13, 2018) (arbitration: past practice and missing contract language)Dept. of Treasury, IRS and NTEU, 70 FLRA 806 (Aug. 31, 2018) (arbitration exceptions: a new basis for interlocutory appeals)

Several items of interest are discussed this week by Peter Broida:Federal District Court Decision in AFGE v. Trump (enjoining enforcement of portions of May 25, 2018 executive orders affecting union representation, official time, and scope of grievance procedures)Villareal v. Bureau of Prisons (Fed. Cir. 2017-2275 Aug. 24, 2018) (timeliness of adverse action decisions; switch in deciding officials)GAO Report: Federal Employee Misconduct-Actions Needed to Ensure Agencies Have Tools to Effectively Address Misconduct (July 2018)

Several items of interest are discussed this week by Peter Broida:13,836: Executive Order Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining;13,837: Executive Order Ensuring Transparency, Accountability, and Efficiency in Taxpayer Funded Union Time Use; 13,839: Executive Order Promoting Accountability and Streamlining Removal Procedures Consistent with Merit System Principles

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