This report covers selected decisions and other actions of the Federal Labor Relations Authority (Authority or FLRA) under the Federal Service Labor-Management Relations Statute (FSLMRS), the Merit Systems Protection Board (Board or MSPB), the courts, and other authorities whose actions affect Federal employee and labor-management relations. Selection is based generally on whether a case creates or modifies precedent or provides insights that are of interest to a wider spectrum of agency management than only the parties to the cases themselves.

Table of Contents

COURT DECISIONS

• BARGAINING WAIVER DEPENDS ON THE TIMING OF THE CHANGE

FLRA DECISIONS

• CONTRACTUALLY PRESERVED TRAVEL & PER DIEM PAST PRACTICES

• INFORMATION ... PARTICULARIZED NEED BURDENS

• RETALIATION FOR PROTECTED SPEECH ... REMEDIES

• MINIMUM STAFFING LEVELS

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COURT DECISIONS

BARGAINING WAIVER DEPENDS ON THE TIMING OF THE CHANGE. The D.C. Circuit reversed FLRA's decision in Letterkenny Army Depot, 58 FLRA No. 166, in which FLRA held that the union had waived its right to bargain over the August 2001 closure of an employee child-care center by failing to request bargaining within 10 days of receiving its first, April 1997, notice of the closure with projected closure dates of September 1998 - March 1999. The revised timing information given in the second, January 2001, notice gave the union a new opportunity to request bargaining, given that the timing of the change deviated significantly from that given in the first notice. "Although the union waived its right to bargain over the "September 1998/March 1999" closure that the handwritten note [the first notice] announced, that waiver did not forfeit the union's right to bargain over a closure that occurred several years after the proposed time frame contained in the note." National Federation of Federal Employees, FD-1, IAMAW, Local 1442 v. Federal Labor Relations Authority, No. 03-1277 (D.C. Cir. May 28, 2004).

FLRA DECISIONS

CONTRACTUALLY PRESERVED TRAVEL & PER DIEM PAST PRACTICES. FLRA turned down the agency's exceptions to an award in which the arbitrator held that although Article 1, Section 2 of the agreement provides for mid-term changes of past practices that aren't specifically covered by the agreement, Section K of the agreement guarantees continuation of travel and per diem payments to union officials for representational activities on official time and, as such, is not subject to mid-term bargaining. Social Security Administration, New York, New York and American Federation of Government Employees, Local 3369, 0-AR-3837, September 30, 2004, 60 FLRA No. 66.

INFORMATION ... PARTICULARIZED NEED BURDENS. FLRA (Member Pope dissenting) disagreed, in part, with the ALJ and dismissed the ULP complaint charging the agency with a violation of ' 7114(b)(4). It found that the union didn't meet the "particularized need" test when it didn't explain why it broadened its request for performance award data over an earlier, and narrower, request that the agency had complied with. "In these circumstances," said FLRA, "it was incumbent on the Charging Party, in response to the Respondent's request for clarification, to explain the need for the information requested, rather than simply repeating its request for all documentation on all employees in the Services Division for a 2-year period." In her dissent, Member Pope would have placed the burden on management to explain why it needed a clarification. Department of the Air Force, Randolph Air Force Base, San Antonio, Texas and American Federation of Government Employees, Local 1840, AFL-CIO, DA-CA-02-0597, 60 FLRA No. 59.

RETALIATION FOR PROTECTED SPEECH ... REMEDIES. In a 45-page decision, the Authority upheld that part of an award in which the arbitrator found, among other things, a First Amendment violation when three supervisors retaliated against the grievant for making protected disclosures relating to medical care by calling the facility to which the grievant was scheduled to be transferred and making adverse comments about him that resulted in, among other things, a cancellation of the transfer. But since the arbitrator didn't explain how he arrived at the amount of backpay for this violation, FLRA remanded this portion of the award for a clarification of the proper amount of backpay. It also set aside the arbitrator's finding violations of the Fifth Amendment and the Whistleblowing Protection Act (Member Pope dissenting regarding the latter). It further set aside those remedies ordering monetary benefits for lost retirement benefits, moving expenses, medical expenses and related travel expenses, the cost of a replacement life insurance policy, damages for psychological injuries, and "front pay" because they aren't authorized by the Back Pay Act. And it remanded that portion of the award dealing with attorney fees, directing that the award be reduced because the grievant achieved only a partial success. Department of Health and Human Services, Gallup Indian Medical Center, Navajo Area Indian Health Service and Laborers' International Union of North America, Local 1376, 0-AR-3728, September 2, 2004, 60 FLRA No. 45.

MINIMUM STAFFING LEVELS. The Authority turned down the agency's contrary-to-law and essence exceptions to an award in which the arbitrator enforced a "staffing and employment guarantee" provision designed to preclude reductions in force that had been agreed to during the partnership era. FLRA noted that "whether there has been bargaining and agreement on any matters covered under ' 7106(b)(1) rests entirely on the arbitrator's construction of the agreement." Furthermore, "[i]n reviewing an arbitrator's interpretation of an agreement, the Authority applies the deferential standard of review that Federal courts use in reviewing arbitration awards in the private sector." Department of Transportation, Federal Aviation Administration and Professional Airway Systems Specialists, 0-AR-3810, 8/23/04, 60 FLRA No. 38.