US Merit System

Protection Boa

Ruth T. Prokop, 

Chairwoman

Ersa H. Poston,

Vice-Chair 

Ronald P. Wertheim

Member
Annual Report 

Table of Contents 

Introduction

Establishing the System

First Year Activities

Relationship with FLRA, OPM, and EEOC

Conclusion

MERIT SYSTEMS PROTECTION BOARD

Washington, D.C. 20419

The Chairwoman 

Sirs: 

In accordance with Section 202(a) of the Civil Service Reform Act of 1978 (5 

U.S.C.§ 1209(b)),it is my honor to submit the First Annual Report of the Merit 

Systems Protection Board. This Report covers the activities of the Board for 

Calendar Year 1979. 

Respectfully, 

Ruth T. Prokop 

 

The President of the United States 

The President of the Senate 

The Speaker of the House of Representatives 

Washington , D.C. 
Introduction 

In an effort to ensure that a principal campaign promise was realized, early in 

1978 President Jimmy Carter transmitted to Congress the first major proposal for 

reform of the civil service in nearly a century. The President's bill represented the 

culmination of efforts of a task force of more than 100 career civil servants who 

had spent seven months reviewing, analyzing, and drawing conclusions about 

the civil service system. Based on the findings of that study, which took into 

account both the weaknesses and strengths of the existing civil service system, 

the President's legislative proposal recommended sweeping changes designed to 

improve its operation and restore the confidence of the citizenry in its 

effectiveness. 

As outlined by the President, the proposed legislation would incorporate 

provisions designed to achieve the following objectives: 

• strengthen the protection of legitimate employee rights; 

• provide incentives and opportunities for managers to improve the 

efficiency and responsiveness of the Federal work force; 

• reduce red tape and costly delay in the personnel system; 

• promote equal employment opportunity; and 

• improve labor-management relations. 

Under the proposal, primary responsibility for carrying out these goals would be 

vested in three new entities: the Merit Systems Protection Board (the Board); the 

Office of Personnel Management (OPM); and the Federal Labor Relations 

Authority (FLRA). 

The first two of these organizations would be created by vesting the functions of 

the Civil Service Commission in the Board and OPM. Significantly, this would 

eliminate the conflict of interest that was inherent in having a single entity serve 

as both rulemaker and adjudicator. As a result the former Civil Service 

Commission would become the Board and OPM would be established as a new 

agency. 

As further specified in the President's proposal, the Board would be a bipartisan, 

three member, quasi-judicial agency structured to "guarantee independent and 

impartial protection" through the fair and objective adjudication of employee 

appeals. The Office of the Special Counsel would be established to investigate 

and prosecute abuses of the merit systems and to bring meritorious cases before 

the Board for final adjudication and determination. While located within the 
Board, it would be separated from the Board's adjudicatory functions in order to 

enable it to conduct its operations independently. 

In contrast, OPM would "be the center for personnel administration," but would 

have no prosecutorial or adjudicatory powers. Instead, it would be responsible 

for assisting the Executive branch in carrying out its day to day personnel 

functions. 

Finally, the FLRA would take over the functions of the former Federal Labor 

Relations Council and would absorb related duties from the Assistant Secretary 

for Labor Relations of the Department of Labor. Like the Board, the FLRA would 

be an independent, quasi-judicial agency. 

Congress demonstrated no reluctance in taking up the proposal. The time for 

reform had come. Using the draft bill offered by the President as a 

comprehensive base upon which to build, Congress expended substantial energy 

conceptualizing, drafting and revising the reform package. In considering the 

Administration's bill, members of the jurisdictionally responsible House and 

Senate committees collectively held 25 days of hearings, heard testimony from 

almost 300 witnesses, attended 17 markup sessions, and participated in five 

days of debate preceding passage. The Conference Committee then spent 

considerable time reconciling the two proposals. The legislation was given final 

approval by Congress in the first week of October and was signed into law by 

President Carter on October 13, 1978. 

In January of 1979, when the Board officially came into being, it was a 

substantially different entity from the one originally envisioned under the 

President's proposal. Through the provisions of the Civil Service Reform Act of 

1978 ("the Act") Congress added measures which significantly strengthened the 

powers of the agency and guaranteed its independence. Moreover, Congress 

vested additional duties in the Board to further its function as "watchdog" of the 

Federal merit systems. 

In order to assure its freedom from improper restraint or pressure, Congress 

provided that: 

• members of the Board who have a seven year nonrenewable term can be 

removed only under the higher than ordinary standard of inefficiency, 

neglect of duty, or malfeasance in office; 

• budgetary submissions and legislative proposals of the Board would be 

made simultaneously to Congress and the President, thus eliminating the 

need to obtain prior Executive branch approval; 

• appointment of personnel by the Board would be essentially independent 

of Executive branch approval; and 
• the Board would represent itself in all litigation except before the Supreme 

Court. 

The Act imposed new duties on the Board including the authority to: 

• review the regulations of OPM to determine whether they require the 

commission of prohibited personnel practices on their face or as 

implemented; 

• analyze and report on significant OPM activities, and 

• conduct special studies of the merit systems to determine their freedom 

from prohibited personnel practices. 

With the addition of these significant duties to its major function of adjudicating 

employee appeals and actions brought by the Special Counsel, the new Merit 

Systems Protection Board found itself facing a substantial task during its infancy 

stage of early 1979. 

Charged with the duty of establishing the new Board were its three members: 

Chairwoman 

Ruth T. 

Prokop, ViceChair Ersa H. 

Poston, and 

Member 

Ronald P. 

Wertheim. 

Chairwoman 

Prokop, 

appointed by 

President 

Carter to h

the Board,

was sworn in

on January 

15, 1979. No newcomer to Government service, she had previously served as

General Counsel of the Department of Housing and Urban Developme

that position, Prokop served as Senior Counsel to the General Telephone & 

Electronics Corporation and as a partner in a major Washington law firm. P

commenced her Government career on the staff of Vice-President Lyndon B. 

Johnson. She then served as Legislative Counsel for President Kennedy's 

Commission on the Status of Women and later for President Johnson's 

Committee on Consumer Interests. From 1966 to 1969, she was Special 

ea

nt. Prior to 

rokop 

d 
Assistant to the Under Secretary of the Department of Housing and Urban 

Development. 

The Vice-Chair of the Board, Ersa H. Poston, was sworn in on January 2, 1979. 

Former United States Civil Service Commissioner since 1977, Poston transferred 

to the Board under provisions of Reorganization Plan No. 2, approved by 

Congress in 1978. Prior to her entry into Federal service, she served as President 

and Member of the New York State Civil Service Commission, a Cabinet post. 

During this period, she was Chairperson of the President's Advisory Council on 

Intergovernmental Personnel Policy (Intergovernmental Personnel Act of 1970). 

Previously, Poston was Director of the New York State Office of Economic 

Opportunity and Confidential Assistant to Governor Nelson A. Rockefeller. 

Poston, a U.S. Delegate, 31st Session of the United Nations General Assembly, is 

the current U.S. Member on the International Civil Service Commission. 

Additionally, she has served as Vice-Presiding Officer, National Commission on 

the Observance of International Women's Year and Member, Panama Canal Zone 

Board of Trustees. 

The third Member of the Board, Ronald P. Wertheim, was sworn into office on 

October 5, 1979. For ten years prior to that he was in private law practice with 

the firm of Ginsburg, Feldman, and Bress in Washington, D.C. During that time 

he also served as advisor to the Secretary of Defense for the Law of the Sea 

Negotiations and Alternate U.S. Representative to the United Nations Conference 

on the Law of the Sea. Mr. Wertheim served as Deputy General Counsel of the 

Peace Corps from 1964 to 1966 and as Peace Corps Director in Northeast Brazil 

from 1966 to 1968. He was a trial attorney in Philadelphia from 1957 to 1959, 

and served as Assistant Public Defender in that city from 1959 to 1961. Before 

joining the Peace Corps, he was an Associate Professor of Law at the University 

of Virginia. 

Establishing the System 

Upon entering office in January of 1979, the first item of business facing the 

Chairwoman, in her capacity as chief executive officer, was to create a workable, 

functioning agency. Given the circumstances surrounding the creation of the 

Board, this was no easy task. 

As a result of the unfavorable division of resources of the former Civil Service 

Commission and the inadequate budgetary allocations provided to the Board, it 

commenced its existence unorganized, understaffed and underfinanced. Clearly, 

this situation had to be turned around if the new agency was to carry out its 

statutory duties successfully. 
Accordingly, the Chairwoman immediately assessed the most pressing needs of 

the Board in order to take steps to meet this challenge. As a result, she identified 

three priorities: First the Board had to design and implement a strong, viable 

organizational structure; second, it had to obtain the support essential for its 

operations by obtaining adequate funds, staff and space; and, third, it had to 

develop a regulatory framework for processing cases. 

A. The Organizational Structure 

Turning first to the task of structuring the new organization, the Chairwoman 

established a series of operating offices. Authority for day to day management 

both in headquarters and in eleven field offices was vested in a Managing 

Director who reports directly to the Chairwoman. A number of other offices were 

developed to reflect the Board's quasi-judicial role. For example, an Office of the 

General Counsel was established to provide legal advice to the Board, an 

extremely important function given the necessity of interpreting and applying the 

new Act as well as conforming the activities of the Board to the laws generally 

applicable to Government agencies. An Office of Special Decisions was 

established to undertake responsibility for drafting significant Board decisions. An 

Office of Appeals was vested with the responsibility for preparing and presenting 

proposed opinions and orders to the Board when it undertook a review of a 

decision made in the field. An Office of the Secretary was established to serve as 

the Board's equivalent to the Clerk's Office in a Federal court. That office was 

assigned custodianship over all Board records and empowered to oversee and 

track cases. An Administrative Law Judge was assigned to hear cases of 

particular difficulty or sensitivity and to render a recommended decision 

whichwas subject to the review of the Board. 

In order to carry out the Board's new adjudicatory duty of identifying and 

studying areas of systemic abuse of the merit systems, the Chairwoman 

established an Office of Merit Systems Review and Studies. The Office of the 

Special Counsel, although included as part of the Board's organizational 

structure, does not report to the Board, given its independent prosecutorial and 

investigative functions. 

An Office of Administration was established to handle procurements, personnel, 

travel and other day to day needs of the Board. An Information Office was also 

placed into operation to communicate and explain the Board's activities to the 

public. 

Most appeals cases originate and are decided initially in the Board's eleven field 

offices.1 Those field offices are composed of a Chief Appeals Officer who 

exercises primary administrative and substantive authority over the operations of 

the office; presiding officials who hear and initially decide cases; and support 
personnel. The field offices range in size from five to twenty-five persons and the 

Chief Appeals Officer reports to the Chairwoman through the Managing Director. 

As it emerged over the course of the year, the Board structure developed along 

the lines indicated by the accompanying chart. 

Merit Systems Protection Board 

Member Chairwoman Vice-Chair 

Office of the Special 

Counsel 

Special Counsel 

 Managing Director

Deputy Field Offices

General 

Counsel Special Decisions Administrative Law Judge 

Merit Systems Review and 

Studies 

Appeals Office of the 

Secretary Information Office Administration 

 

 

Field Offices 

 

 

B. Resources 

Because no organizational structure, regardless of how carefully planned, could 

operate without adequate resources, much Board attention and effort was 

directed toward obtaining essential funding, staff, and space beyond that which 

had originally been allocated to it. 

This undertaking was of particular concern given the substantial change in the 

operations of the Board between the time the Reform Act was originally 

proposed by the President and the time it was translated into statutory mandate. 

Under the President's legislative proposal, the Board had significantly fewer 

duties than those it was ultimately charged with, including, for example, the 

obligation to review OPM regulations, conduct merit systems studies and comply 
with the new adjudicatory requirements that were added by the Act. 

For example, certain requirements for processing employee appeals which had 

not been included in the Administration's bill were incorporated in the Act as it 

emerged from the Congress. While the initial proposal contemplated that the 

vast majority of employee appeals would be decided by reviewing the record of 

the agency action, the statute mandated that employees be afforded a hearing in 

every case. This and other related adjudicatory requirements imposed substantial 

burdens on the Board in processing cases arising under the new Act. In addition, 

the Board was faced with an overwhelming backlog of pre-Act cases which had 

been filed with but not processed by its predecessor agency. This backlog 

impeded the Board in its efforts to adjudicate the new cases. 

The cumulative effect of these factors was to create an entity which was far 

more complex than the one originally conceived. Obviously, in light of its 

expanded functions and duties, the new agency required a concomitant increase 

in resources. Unfortunately, however, the resources allocated to the Board were 

based upon the initial proposals, leaving it in the untenable position of being 

unable to carry out fully its statutory duties. The Office of the Special Counsel 

found itself similarly situated. For this reason immediate action had to be taken 

to obtain adequate resources. 
1. Funds 

In undertaking to obtain the necessary financial resources, the Board found its 

authority to submit budget requests directly to the Congress to be essential. 

Utilizing that provision immediately in the first part of the year, the Board 

presented supplemental budget requests and explained directly to the House and 

Senate Appropriations Committees why the original budget had been inadequate. 

The Board received unusual support in its efforts from Elmer Staats, Comptroller 

General of the United States, who reported to Congress that: 

. . . with their present staffing and funding, the Board and 

particularly the Special Counsel do not have adequate resources to 

establish full operations and effectively carry out the duties and 

responsibilities assigned to them under the Civil Service Reform 

Act. As a result, the intent of the legislation cannot be achieved . . . 

The Congress concurred. For Fiscal Year 1979 (January 1, 1979 to September 

30, 1979), the Board originally had received $5.8 million from Civil Service 

Commission funds plus $400,000 for pay raises and a second $400,000 from 

trust fund reimbursements--a total of $6.6 million. It requested and received an 

additional $1 million. 

For Fiscal Year 1980, the Board had been allocated $9 million in the President's 

budget. It requested and received an additional $3 million. 
The Office of Special Counsel had begun the Fiscal Year 1979 with $600,000. It 

requested and received an additional $800,000. 

For Fiscal Year 1980, the Office of Special Counsel had received $2 million in the 

President's budget. It sought and received an additional $2.5 million. These 

additional funds permitted the Board the financial resources to get under way 

with the implementation of its s

duties. 

tatutory 

2. Staff 

The staffing of the Board had suffered 

the same fate as its funding. No staff 

had been allocated for its additional 

functions or the increased duties 

involved in carrying them out. 

Moreover, the personnel inherited from 

the Civil Service Commission either 

were insufficient in number or lacked 

the requisite skills to staff any single 

functional unit established under the 

Board's new organizational scheme. Therefore, new staff had to be recruited to 

fill in the "holes" in the organizational structure. 

Because the Board was charged with carrying out the adjudicatory aspects of the 

former Civil Service Commission, some 175 employees of the former Appeals 

Review Board and Federal Employee Appeals Authority were transferred to the 

Board. However, although these two units were transferred intact, the mandates 

of the new Act called for new skills and qualifications which were not available 

without supplemental staff and large-scale training, even in these areas where 

the functions of the old Civil Service Commission were very similar to those of 

the new Board. 

For these reasons, the Board asked Congress to increase its authorized staff from 

289 positions to 382. The Office of Special Counsel requested an increase from 

19 to 140. Congress acceded to both requests. The Board took advantage of this 

increase in staffing authority, and filled its positions as quickly as possible. 

Since the Board's major activity involves adjudication, the Board necessarily 

concentrated on hiring lawyers to serve as presiding officials, and to staff the 

Offices of Special Decisions, Appeals, and the General Counsel. Some came from 

private practice, some from other agencies, resulting in a mix of experience, 

freshness, knowledge, and originality. There was a concentrated effort to retain 
able personnel with experience in the former civil service system, and to balance 

that technical expertise with individuals having broad experience in Government 

service or in the private sector. This infusion of new blood, together with the 

pool of experience that existed at the time the reorganization plan came into 

effect, has enabled the Board to undertake efforts to raise the qualifications 

standards for presiding officials with a minimum of stress, dislocation, and 

temporary lessening of efficiency. 

Efforts were also made to fill out the Board's administrative staff. The Board 

hired mail clerks, a procurement clerk, a management analyst and an accountant 

who were placed within the appropriate units of the new organization. 

The hiring for these new positions, throughout the Board, but particularly at the 

managerial level, demonstrated the Board's commitment to equal employment 

opportunity. Of the Board's senior personnel, 55 percent are men, 45 percent are 

women, and 25 percent are minorities. 

3. Space 

While the Board was successful in accomplishing its first-year goals with regard 

to funding and staff, the same is not true with regard to its efforts to obtain 

adequate space for operations. From the beginning, space has been one of the 

most difficult problems facing the Board, and has remained the most vexing 

since it continually requires time and energy which should go into other pursuits. 

When the Board came into existence, it had no space of its own. Instead, it 

inherited the Civil Service Commission's overflow office space in the Matomic 

Building located at 1717 H Street, N.W., in Washington, D.C. Under standard 

General Services Administration allotments, the Board is entitled to 56,00 square 

feet of space. Yet it has been provided with only 44,000 square feet, a shortage 

of more than 21 percent. Moreover, not only is the amount of the space 

inadequate, but it is seriously below acceptable standards and is ill-suited to the 

Board’s functions. These inadequacies have led to several serious deficiencies in 

the Board's capacity to operate properly: 

• The Office of Special Counsel does not have a separate room for 

interviewing employees with assured privacy, nor adequate facilities to 

secure confidential files; 

• the Board has no conference room; 

• there are no appropriate rooms for conducting public hearings, and the 

Board has had to make ad hoc arrangements to use other facilities--the 

Court of Claims and the National Labor Relations Board hearing rooms--on 

a case-by-case basis; 
• there is no room in which the Board can hear and consider cases 

presented to it by its appeals staff; 

• inadequate load-bearing floors have barred the installation of an adequate 

library; and 

• antiquated and inefficient facilities for heating, cooling, lighting, and 

operating machines have adversely affected efficiency and employee 

health and morale, have caused serious accidents, and continually pose 

safety problems. 

During the past year, the Board has constantly been engaged in negotiations 

with the General Services Administration for acceptable space. Although fruitless 

thus far, these negotiations continue. 

C. Regulatory Framework 

As its first substantive task, the Board undertook to promulgate regulations to 

govern the processing of the steady but increasingly heavy flow of cases arising 

under the new system. Because the statute contemplated an immediate change 

in the quality and efficiency of the processing system, eight days after the 

effective date of the Act, interim regulations were drafted and published in the 

Federal Register. Subsequently, after providing an opportunity for comments on 

proposed regulations and making suitable amendments, the Board published 

final regulations on June 29, 1979. Those regulations accommodated the 

statutory directive that the Board processes be more judicial in concept subject 

to review in a court of appeals rather than, as previously, in Federal district 

court. The new adjudicatory process contemplates a combination of fairness and 

speed, and the regulations are designed to comport with those dual goals. 

First Year Activities 

In this first year, a great deal of time has been devoted to administrative and 

procedural tasks calculated to provide the Board with a firm foundation for future 

growth. The success of these efforts, however, has also enable the Board to 

implement and carry out its substantive duties under the Act. This is reflected in 

the substantial headway the Bo has made this year, particularly in the processing 

of employee appeals as well as in the areas 

of Special Counsel adjudication, review of 

OPM regulations, and the studies and 

planning initiated by Merit Systems Review 

and Studies. 

A. Appeals 
The adjudication of employee appeals has been a dual-faceted challenge for the 

Board: how to eliminate the large backlog of inherited pre-Act cases while 

simultaneously processing in a timely and legally satisfactory fashion, new cases 

brought under the Act. While initially this problem was somewhat overwhelming, 

a statistical review of the Board's activities over this year demonstrates that it 

was not insurmountable. 

When the Board came into being in January 1979, there was a backlog in the 

appeals system of almost 5,000 pre-Act cases. By the end of the year, a total of 

8,672 old system cases had been received, which would have been well over a 

full year's work, even if there had been no new cases. Nonetheless, by the 

beginning of 1980 only 1,159 of these remained--a reduction of 87 percent in old 

system cases. 

During the course of 1979, the Board also received over 3,600 new system 

cases, brought pursuant to the provisions of the new Act. By the end of the year 

over 2,700 of these appeals had been processed within the specified time limit--a 

success record of 98 percent.2

Among the most notable characteristics of the Board's regulations were the 

following: 

• The introduction of an appeals form designed to make it easier for 

employees to use the system while obtaining that information necessary 

for the Board's processing of the appeal; 

• the imposition of a deadline of 15 days for agencies to file a response to 

an appeal, eliminating the inordinate delays experienced under the old 

system; 

• the provision for sanctions by the presiding official where a party 

inexcusably fails to meet the requirements of the Board in processing a 

case; and 

• the implementation of new legal concepts embodied in the Act, such as 

discovery, the use of subpoenas, and application of new burden of proof 

standards. 

Under the new procedures, cases must be processed in an expeditious fashion. 

The statute prescribed a 120-day processing period for all "mixed" cases--i.e., 

cases involving allegations of discrimination. The Board, on its own motion, 

undertook to apply that processing period to all appeals. Consequently, the 

regulations provide that an employee must file an appeal of any final adverse 

action taken by an agency within 20 days of the effective date of the action. The 

appeal must be filed in one of the Board's eleven field offices, depending on 

where the employee was working at the time the action was taken. 
Within 15 days after an agency receives notice of the appeal, it must submit a 

response to the Board. As provided by the statute, the employee has the right to 

a hearing on the appeal. Before the hearing commences, discovery may be 

undertaken and a list of witnesses must be submitted and approved by the 

presiding official. Any requests for delays in the hearing will be denied unless 

good cause for delay can be demonstrated. Following the hearing the presiding 

official must issue an initial decision, usually within 25 days after the closing of 

the record. 

The initial decision of the presiding official becomes the final decision of the 

Board 35 days after its issuance. However, either the agency or the appellant 

may request reconsideration by the Board itself during that 35-day period if 

dissatisfied with the decision. The filing of a petition for review with the Board 

will stop the decision from becoming effective until the Board takes action upon 

the case. Additionally, even where neither of the parties appeal the action, the 

Board itself may reopen the case. This reopening process will also stop the 

decision from becoming final until the Board takes action on it. Once the decision 

of the Board is final it may be appealed to the United States Court of Appeals or 

Court of Claims. 

The statute, however, dictates a somewhat different procedure for a "mixed" 

case (i.e., a case where discrimination is alleged as a defense to an adverse 

action). Once such an appeal is filed, the Board may or may not consider it 

immediately, depending on whether a discrimination complaint or grievance has 

been filed with the agency. If a complaint or grievance initially has been filed 

with the agency, the Board will not consider the case until there has been an 

agency decision on the matter or 120 days. have passed since the filing. If no 

such complaint has been filed, the Board will adjudicate the appeal immediately. 

When the decision of the Board becomes final in a "mixed" case, the appellant 

may appeal the action either to the Equal Employment Opportunity Commission 

(EEOC) or to the Federal district court. In the first instance, following further 
action by the EEOC, the Board and a Special Panel, the appellant may still appeal 

the case to the Federal district court. 

In subjecting most Board decisions to review in the Court of Appeals rather than 

trial de novo or review of the record in the district court, Congress charged the 

Board with the duty of upgrading the quality of its decisions. The Board has 

taken several steps to meet this Congressional mandate. 

First, it has taken action to assure that all its presiding officials will be attorneys. 

Second, a training program has been undertaken to assist the presiding officials 

in developing the legal precision necessary to improve the decision-making 

process. 

Finally, the Board itself has reopened 10 percent of the cases decided in the field 

for the purpose of correcting errors in those cases and establishing important 

precedents. 

The Board's Office of Merit Systems Review and Studies has conducted a limited 

study of the new system cases processed in 1979 to discern any useful trends or 

patterns in the adjudications. Almost 1,200 decisions rendered by the field offices 

in the first nine months of this year were subject to such an analysis. While the 

nature of this analysis has been too limited to provide a basis for any major 

conclusions, some of the factors emerging from the review warrant discussion. 

Of the decisions analyzed, over 60 percent were adverse actions based upon 

unacceptable conduct while only two percent were based upon unacceptable 

performance. In almost half of the cases, the employee's appeal was dismissed 

without a review on the merits for reasons such as lack of jurisdiction, failure to 

make a timely filing, etc. Of those cases adjudicated on the merits, the 

employee's appeal was sustained in its entirety or in part in approximately 20 

percent of the cases. 

The Atlanta field office accounted for the largest percentage of appeals filed (18 

percent) and Seattle, the smallest (13 percent). Four of the eleven field offices--

Atlanta, Philadelphia, San Francisco, and Washington--accounted for almost twothirds of the appeals filed. 

Seven out of ten appeals were from actions originating in four agencies--the 

Army, Postal Service, Navy, and Veterans Administration. 

The reversal rate was approximately the same for both males and females, for all 

age brackets, and for both veterans and non-veterans. The more years of 

service, the higher the reversal rate. The reversal rate also increased with the GS 
rating. For those employees with GS ratings of 1 to 4, the reversal rate was 8 

percent For those employees with GS ratings of 13 and above, it was 34 percent. 

In the cases where an action was heard on its merits, the employee was 

represented in 76 percent of the cases by an organization (labor, civil rights, or 

veterans). 

It is anticipated that studies of this nature will be an ongoing project for the 

Board. Such analysis should enable the Board to identify areas of concern in a 

number of ways. For example, it may be used as an internal management tool 

for identifying a particular problem in case processing within a given field office. 

Alternatively, it can be used as a tool for determining whether there is a 

recurring problem within one agency, with certain types of actions, or among 

certain groups of employees. 

This effort should be assisted substantially when the Board implements its 

computerized case tracking system. This system will replace the previous 

haphazard manual method of docketing, filing, and tracking appeals which made 

it difficult, if not impossible, to identify the location and status of any appeal. 

Computer terminals in the 11 field offices will submit data into the system on a 

daily basis, thus keeping the information base up-to-date. The Office of the 

Secretary will be charged with the duty of overseeing the operation of the 

system. Additional responsibilities which will facilitate the processing of cases 

include control of correspondence, publication and dissemination of decisions, 

and the certification and authentication of records. 

The necessity of having a modem system to track cases is underscored by the 

growing trend of appellants to file petitions for review of field office decisions. 

During 1979, as employees became more familiar with the Board's procedures, 

the number of petitions for review 

grew. Of the 653 petitions for review 

filed in 1979, almost half of them were 

filed in the last quarter of the year. 

The increased number of appeals from 

the decisions of presiding officials in t

field does impose a heavier work

on the three-member Board and its 

staff. However, the Board welcome

this development because it views very 

seriously the Congressional directive 

that the Board, unlike its predecess

should be an active adjudicator. 

he

load 

s 

or, 
For this reason, each week the Board considers and takes action upon petitions 

for review, as well as cases pending before it. Presentation of the major issues 

under consideration is made by staff members who then receive Board directives 

and guidance in drafting opinions for final Board approval. Moreover, the Board 

members themselves frequently prepare significant opinions from start to finish, 

clearly reflecting the fact that the Board members always give personal attention 

to matters before them. 

This "activism" is of particular importance in these early months of the Board's 

existence, because it is essential that the Board render precedential decisions 

interpreting and applying the new provisions of the Act. If it does not, both 

employees and management will be left without the guidance necessary to direct 

their actions. 

For this reason, in considering appeals the Board has attempted to render 

decisions addressing significant issues raised under the new Act. One such 

opinion was issued in the case of William E. Parker v. Defense Logistics Agency. 

This case involved an agency action denying an employee a periodic withingrade step salary increase because his work was not of an acceptable level of 

competence--a negative "ALOC" determination. 

In his appeal filed with the Board's field office in 1979, the employee alleged that 

the agency proceedings against him involved two "harmful errors"--i.e., defects 

in agency procedures that compromised the employee's rights. The Board's 

presiding official disagreed, but identified two other procedural errors which he 

held to have been harmful, and on that basis decided in favor of the appellant. 

The Board reopened the case on its own initiative in order to establish in a 

precedential fashion the following legal principles: 

1. The appellant (employee) bears the burden of establishing that 

the agency committed procedural error in the action taken against 

him/her, and that such error was harmful. 

2. In reviewing ALOC cases, the Board is not limited to the 

administrative record developed during the agency's proceedings, 

but may engage in further fact-finding where such is necessary to 

serve the ends of justice. 

3. The standard of proof in such cases is that of "substantial 

evidence." 

Decisions of this nature, those which have a far-reaching impact on many 

appeals cases before the Board, are expected to be issued in the future as the 

Board continues to interpret and apply the provisions of the new Act. 
B. Office of Special Counsel 

As stated in the "Findings and Statement of Purpose" of the Act, one of the 

policies adopted by Congress in enacting the legislation was that: 

Federal personnel management should be implemented consistent 

with merit system principles and free from prohibited personnel 

practices. 

One of the methods by which Congress sought to implement this policy was by 

establishing the Office of the Special Counsel. Under the provisions of the Act, 

the Special Counsel is vested with the authority to investigate allegations of 

prohibited personnel practices, prosecute those who commit them, and seek 

corrective action. 

In order to carry out this task the Special Counsel may bring cases before the 

Board for final adjudication, In this respect, the relationship of the Board and the 

Special Counsel is somewhat analogous to that of a court and a prosecutor. The 

Special Counsel makes no adjudicative determinations, but acts as an 

investigator and prosecutor in preparing and bringing matters before the Board. 

The Special Counsel acts with complete independence, determining which cases 

to terminate, which to settle and which to bring before the Board. The Board, on 

the other hand, can institute no such actions, but consistent with judicial 

principles, has the final responsibility for approving or disapproving the 

recommendations of the Special Counsel. 

In its first year, the Board considered two types of Special Counsel actions. 

The first involved requests for stays of personnel actions under 5 U.S.C. §1208. 

This provision authorizes the Special Counsel to seek an order from the Board 

staying an agency personnel action for periods of 15 or 30 days or other period 

as determined to be appropriate by the Board. The Special Counsel makes such a 

request when there is reason for him/her to believe the personnel action is based 

on a prohibited personnel practice. During the Board's first year, the Special 

Counsel requested 22 stays in cases involving allegations of prohibited personnel 

practices; 16 were granted. 

The nature of the alleged prohibited personnel practices has varied. Several stay 

requests have been based on reprisal for "whistleblowing" activities. Some have 

alleged prohibited discrimination, while others have alleged reprisal for exercise 

of appeal rights. 

The second type of cases which the Special Counsel has brought before the 

Board has been requests for corrective action under 5 U.S.C. §1206(c)(I)(B). The 

only such action in which the Board issued a final determination was In the 
Matter of Robert J. Frazier, et at. v. Benjamin R. Civiletti, Attorney General of the 

United States, et al. This case was the first major action involving the 

"whistleblower" provisions of the new Act. Those provisions make it a prohibited 

personnel practice to take reprisal against an employee for disclosing agency 

wrongdoing. The Frazier case involved four deputy marshals of the U.S. Marshals 

Service, an entity within the Justice Department. The four deputies alleged that 

they were being transferred from the Atlanta, Georgia office in reprisal for their 

complaints to Senator Herman E. Talmadge and Representative Wyche Fowler 

about problems in that office. They also claimed that the transfers were in 

reprisal for their involvement in equal employment opportunity activities. 

The case first arose when representatives of the American Federation of 

Government Employees, AFL-CIO (AFGE) asked the Office of the Special Counsel 

to investigate the situation in Atlanta. The Special Counsel subsequently asked 

the Board to order a 15-day stay of the transfer actions. The stay was granted 

and then was extended for 30 days. 

During this time, the Special Counsel finished his investigation and submitted a 

report to the Justice Department, concluding that the transfers were indeed 

based on prohibited personnel practices and recommending that the proposed 

reassignments be rescinded. When the Attorney General disagreed with the 

conclusions of the report and declined to comply with its recommendations, the 

Special Counsel filed a petition for corrective action with the Board. 

In making its determination on the case, the Board decided several important 

procedural and substantive issues. First, it concluded that it was obligated to 

make its own findings of fact rather than being bound by those made by the 

Special Counsel. Second, it concluded that the burden of proof should rest with 

the Special Counsel and that, in conformance with existing case laws in 

comparable areas of administrative adjudication, the applicable standard was 

preponderance of the evidence. 'The Special Counsel," opined the Board, "as the 

entity asserting the need for corrective action, certainly is the proponent in the 

proceeding now before the Board, and properly must bear the burden of proof." 

Substantively, the Board addressed the question of whether the proper nexus 

had been shown between the acts of the employee and the claimed reprisal by 

the agency. With regard to the whistleblower allegations, the Board held that 

"the proponent must demonstrate that a protected disclosure was made and that 

retaliation resulted." It concluded, however, that the Special Counsel had not 

shown that the individuals who ordered the deputies transferred did so because 

of their communications to Senator Talmadge and Representative Fowler. 
With regard to the allegations that the transfers were in reprisal for equal 

employment opportunity activities, the Board found that such a nexus had been 

demonstrated as to one of the deputies who was: 

... subjected to systematic threats and harassment in retaliation for 

his EEO activities from the time he became an EEO counselor in 

1974 through his transfer in January of 1979 . . . (these activities] 

were known to and considered by the management review team in 

recommending his transfer. 

As a result, the Board permitted the transfer of three of the deputies but not the 

fourth. It did, however, issue a wide-ranging order for corrective action in the 

case, seeking to remedy some of the problems in the Atlanta office that had 

been revealed during the hearing. This order required that: 

• all Marshals Service employees be reminded of the statutory responsibility 

of the service to carry out equal employment responsibilities; 

• an equal employment opportunity counselor be appointed for the 

Marshals' Atlanta office; and 

• the Marshals Service file periodic reports with the Board on pending equal 

employment cases. 

The case has been appealed to the United States Court of Appeals for the District 

of Columbia by AFGE, and is now pending, in that Court. 

C. Review of Significant Activities and Regulations of OPM 
Under 5 U.S.C. §1209(b) the Board is directed to review, analyze, and report 

annually on the significant actions of OPM for the purpose of determining 

whether they are in accord with merit system principles and free from prohibited 

personnel practices. During its first year, the Board has focused on developing 

the capacity to undertake this function. Activities beyond the planning stage have 

been minimal, however, because the resources to carry out this duty were not 

included in the Board's initial budget. However, plans to implement this duty are 

now under way, and assuming requested funding is received, the Board's 

affirmative review of OPM activities on a systematic basis will be a principal 

program element in calendar year 1980. 

Despite the severe limitations imposed on its activities for calendar year 1979, 

however, the Board, through its review of OPM regulations, has been able to 

oversee one significant activity of that agency: implementation of the 

performance appraisal system under Chapter 43 of the Act. 

That review, conducted pursuant to the Board's specific authority under 5 U.S.C. 

§1205(e) is for the purpose of determining whether the regulations of OPM, on 

their face or as implemented, require the commission of a prohibited personnel 

practice. The Board may conduct such a review on the basis of a petition from an 

interested party, a complaint from the Special Counsel, or on its own motion. 

During the first year, one petition for such review was filed and granted by the 

Board. The case, known as Thomas Wells, et al. v. Patricia Roberts Harris, 

Secretary of Health, Education and Welfare, et al., was initiated by AFGE, which 

petitioned the Board to review certain regulations of OPM and their 

implementation by the Social Security Administration (SSA). The regulations in 

question were those implementing Chapter 43 of the Act, entitled "Performance 

Appraisal." Prior to passage of the Act, adverse actions against employees 

required that the agency demonstrate that the action was for the "efficiency of 

the service" and that it was supported by a preponderance Of the evidence. To 

make it easier for agencies to act against inefficient employees, Congress 

changed the law to allow demotions or removals for "unacceptable performance" 

if supported by substantial evidence, a less stringent standard in law than the 

preponderance standard. In addition, the Congress outlined an elaborate 

procedure for evaluating the employee's performance known as a "performance 

appraisal system." 

AFGE challenged the fact that both the OPM regulations and the SSA 

implementation of those regulations provided that action could be taken against 

an employee under the facilitated procedures prior to establishing a performance 

appraisal system. It asserted that development of the system was the quid pro 

quo for the new procedures. OPM and SSA disputed this contention alleging that 
Congress had not restricted use of the new procedures to those employees who 

had been evaluated under the new system. 

The Board ruled against OPM and SSA, holding that a full appraisal system must 

be in operation before an action could be taken against an employee under the 

less stringent standards. The Board rested its decision largely upon the legislative 

history of the Act, concluding that Congress intended a single interrelated 

framework to be used for promotions, pay increases and awards as well as 

adverse actions. Therefore, it was required that adverse actions under Chapter 

43 of the Act must be based on an analysis of the employee's performance as 

provided under such appraisal systems. 

However, the decision gave the agencies some flexibility in establishing 

performance standards and the major components of the appraisal system, 

noting that agencies were limited only by the requirement that objective criteria 

be used in formulating the standards. The Board also held that, until a full 

performance appraisal system is in place, adverse actions can be taken under 

Chapter 75 of the Act which would require the application of the old "efficiency 

of the service" and "preponderance of the evidence" standards. 

D. Merit Systems Review and Studies (MSRS) 

This office operates as the "conscience" of the civil service system. Through 

special studies of the Federal civil service and other merit systems in the 

executive branch, and through its review of the rules, regulations, and significant 

actions of OPM, it studies and reports to the President and the Congress on the 

"health" of the Federal merit systems, seeking to ensure that the principles of 

fairness embodied in the Civil Service Reform Act are being systematically 

applied. 

Because MSRS lacked necessary staff and funds until near the close of the fiscal 

year, it was not fully operational for most of the year. However, it began to set 

its goal long before it obtained funding. Working relationships were developed 

with individuals who had a special interest in the equity and fairness of the civil 

service system. As a means of eliciting reaction to its plans and operating policy, 

MSRS invited leaders in the fields of public administration and personnel 

management evaluation to a late fall symposium. Prior to the meeting, MSRS 

staff had developed a concept paper that was distributed at the symposium. That 

paper set out five functional areas of MSRS activity: review of OPM's significant 

actions, agency investigations, quantitative studies, topical studies, and 

legislative recommendations. The paper also served as a focus of discussion and 

as a basis for the exchange of ideas. 
As concepts emerged, it was clear that the very broad special studies mandated 

under the Act, combined with finite resources, dictated that MSRS approach 

studies and projects selectively. Topics for the studies must be chosen not only 

to produce studies which would be bias-free, definitive, and reliable indicators of 

Federal civil service problems, but which would also identify ways in which those 

problems could be addressed. 

In developing its staff, MSRS sought multidisciplinary personnel; it received more 

than 400 applications from which seven professionals were selected. MSRS also 

developed an independent survey research and information processing capability, 

considered central to its ability to produce definitive studies. 

As the fiscal year closed, MSRS had begun two studies--a quantitative study of 

CSRA appeals decisions rendered by the field offices in Fiscal Year 1979, and a 

Congressionally mandated study of sexual harassment. 

In studying sexual harassment, MSRS is seeking to determine not only the extent 

of the problem in the Federal workplace, but also its impact on productivity. 

MSRS staff reviewed existing literature and surveys on the subject and found 

that no scientifically constructed survey on sexual harassment had ever been 

conducted within the Federal workplace. The survey which MSRS plans to send 

to 20,000 Federal employees in Fiscal Year 1980 will be the foundation for the 

first definitive study ever conducted on the subject. 

In the first formative months, MSRS also sought a method for developing 

indicators of possible merit systems abuse. One approach has been to establish 

scientifically selected, term appointed, voluntary panels of Federal employees. 

The panels, queried on a regular basis on salient issues, would actively involve 

representatives from all the Federal work force in special study activities. Such 

panels would give MSRS the tools with which to address many subjects quickly 

and at relatively little expense. MSRS expects to begin using this approach in 

Fiscal Year 1980. 

Relationship with FLRA, OPM, and EEOC 

To coordinate and effectuate civil service reform, the Board has established 

formal and informal working relationships with FLRA, OPM, and EEOC. While 

recognizing the necessary independence of each agency, lines of communication 

have been set up not only to achieve a more consistent resolution of Federal 

workplace-related controversies, but also to appraise the statutory jurisdictional 

overlap and to monitor the parallel activity that exists between them. Very early 

in the Board's operations, Chairwoman Prokop met OPM Director, Alan K. 

Campbell, FLRA Chairman Ronald W. Haughton, and EEOC Chair, Eleanor Holmes 

Norton, to establish a dialogue in areas of common concern. Since then, 
representatives of the Board and the other agencies have conferred numerous 

times on issues of mutual interest. 

The Board has coordinated its efforts with those of the FLRA on a continuing 

basis. At the staff level it has held meetings with FLRA personnel to discuss areas 

of significant activity by both agencies. While these efforts have been primarily of 

an informal nature, it is anticipated that the Board's interaction with FLRA will by 

necessity increase as issues raised before the Board interrelate with and have 

implications for labor-management relations. 

A similar relationship has been developed with OPM. Such interaction provides 

due recognition of the fact that the Board is called upon to rule on the validity of 

certain actions of OPM. However, it also implements the statutory provisions 

which call for a working relationship between the two entities. 

For example, as required under the Act, the Board must provide OPM copies of 

all its decisions, including the initial decisions rendered in the field offices. 

Similarly, the Board is required to notify OPM when the interpretation of a law, 

rule or regulation under its jurisdiction is at issue in a proceeding. It must also 

work with OPM to obtain information for its studies and keep it apprised of 

certain other actions it takes. In a less formal context the Board has sought to 

establish ongoing staff contact with OPM for purposes of training Board 

personnel in OPM's significant areas of activity. 

The Board has also worked closely with EEOC in implementing the respective 

duties allocated to each entity under the Act. This coordination became 

necessary very early in the year in order to implement a transfer of adjudicatory 

functions from the Civil Service Commission to the EEOC pursuant to 

Reorganization Plan No. 1 of 1978. That transfer required that certain cases 

previously adjudicated by the Civil Service Commission be turned over to the 

EEOC. However, many of these cases had already been substantially processed 

by the Civil Service Commission and to transfer them midstream would have 

been unfair to the parties and would have caused a total loss of the work already 

completed. Accordingly, through an agreement worked out by the two agencies, 

on March 27, 1979, EEOC delegated authority to issue decisions on these cases 

(approximately 240 in number) to the Board. In a similar vein, some of the 

backlogged cases raised matters which were appealable to the Board under the 

Reform Act. On August 28, 1979, the two agencies, by joint regulation, created a 

delegation of authority from EEOC to MSPB to issue preliminary decisions in 

these cases. This has substantially reduced the adjudicative logjam and 

permitted EEOC to concentrate its efforts on resolving cases involving issues not 

cognizable by the Board. 
Looking to the future, arrangements are being worked out which will permit the 

establishment of procedures for the two agencies to process "mixed" cases i.e., 

those cases where discrimination is alleged as a defense to an adverse action. In 

these cases the Act vests the Board with initial decision-making responsibility 

over claims of discrimination raised in appeals, however, the employee may 

appeal the Board's decision to the EEOC or to the district court. 

The Board has worked informally at the staff level to coordinate all regulatory 

efforts in this area with EEOC prior to publishing for comment, and EEOC has 

reciprocated. 

Conclusion 

In its first year of existence, the work of the Board has been largely dedicated 

towards meeting the three objectives established early in its operations: to 

implement a strong organizational structure; to obtain adequate resources to 

carry out its statutory duties; and to develop a regulatory framework for 

processing cases. 

For the most part, each of these goals has been achieved. Moreover, the Board 

has had the opportunity to interpret and apply many important provisions of the 

Act, resulting in the issuance of several significant precedential decisions. For 

these reasons, the Board views this first year, characterized by productivity and 

accomplishment, to be a most successful one for this new agency. 

Having achieved the primary objective of laying a firm foundation for future 

growth, we expect this upcoming year to be one of building upon that base. In 

that respect we look forward to another year of achievement, perhaps of a 

different sort, but clearly designed to further the ultimate goal of full 

implementation of civil service reform. 

Endnotes: 

1The Board's field offices are located in Philadelphia, Boston, New York City, Atlanta, Denver, 

Dallas, Chicago, St. Louis, San Francisco, Seattle, and the Washington, D.C. area. 

2 Approximately 950 of these cases were filed within the last few months of the year. The time 

limit for processing will not expire until some time in 1980, accordingly, they are not considered 

in this calculation.