WHY BARGAIN OVER (& GRIEVE) AGENCY REGULATIONS?
MSPB wheeled out a great example why in a decision this week reversing an employee’s removal due to the withdrawal of his security clearance. After finding that the agency complied with all statutory adverse action requirements, the Board noted that agencies must also “comply with the procedures set forth in their own regulations.” (Blatt v. Dept. of the Army, 2014 MSPB 65 (2014)). If they do not and the employee can show harmful error, the adverse action is reversed.
In this case, those regulations required that once the employee has responded to the charges the agency must issue, “… a written decision from the CAF stating the final reasons for the unfavorable administrative action.” The agency issued a final decision but did not include the final reasons for the unfavorable decision.
The case is only the latest reminder of why unions should not only review agency regulations when preparing an appeal in order to identify any enforceable provisions, but also why they should not let a proposed regulation or revision go into effect without demanding to bargain over the negotiable portions of its contents. Obviously, that requires that unions establish a process for reviewing agency regs any time a change is proposed.