ARBITRATOR ERROR ... BURDEN OF PROOF AND STANDARD OF PROOF
In granting OPM's petition for review, the Federal Circuit ruled that the arbitrator abused his discretion by substituting his own charge for that of the agency and applying the wrong legal standard to determine if a former employee's associate was a suspected narcotics violator. Office of Personnel Management v. Tim Dale, No. 03-3030 (Fed. Cir. January 26, 2004).

SUBSTANTIVE CONDITION OF EMPLOYMENT?
The D.C. Circuit reversed the Authority's holding, in 57 FLRA No. 200, that a proposal prescribing how management representatives are to address union representatives during collective bargaining negotiations and in grievance proceedings is outside the duty to bargain because it directly determines the conditions of employment of management officials. The court held that the proposal doesn't deal with a substantive condition of employment of non-unit employees, but is more akin to ground rules. Even if viewed as establishing a substantive condition of employment, the court held that "the proposal clearly relates to a condition of employment of bargaining unit employees, not their managers." Association of Civilian Technicians, Wichita Air Capitol Chapter v. Federal Labor Relations Authority, No. 03-1083 (D.C. Cir. January 9, 2004).

RIGHT TO SELECT ... INTERVIEWS ... UNION OBSERVER
The D.C. Circuit affirmed FLRA's holding, in 58 FLRA No. 4 (Member Pope dissenting), that a proposal permitting a union observer to be present at any performance-based interview (PBI) conducted to fill a bargaining unit position is nonnegotiable because it affects management's right to make selections for appointments and is neither a "procedure" nor an "appropriate arrangement." American Federation of Government Employees, National Veterans Affairs Council 53 v. Federal Labor Relations Authority, No. 02-1311 (D.C. Cir. December 23, 2003).

FUNCTUS OFFICIO ... ESSENCE
Although the arbitrator concluded that discipline was warranted for the grievant's unauthorized access to the agency's data base, he reduced a 2-day suspension to a written warning. He then granted the union's request for a clarification and changed the written warning (which isn't a disciplinary action under the contract) to a reprimand (which is). The agency filed exceptions and FLRA set aside the clarification award on the ground that the arbitrator was functus officio after issuing the original award. FLRA then proceeded to also set aside the original award on the ground that it failed to draw its essence from the agreement. "Because the Arbitrator effectively found that discipline was warranted, his [original] award [of a written warning], by not providing any discipline, does not represent a plausible interpretation of the agreement." Social Security Administration, Region 1, Boston, Massachusetts and American Federation of Government Employees, 0-AR-3677, January 30, 2004, 59 FLRA No. 112.

FAILURE TO EXECUTE AGREEMENT
FLRA dismissed a ULP complaint alleging the agency violated § 7114(b)(5) when it refused to execute an agreement. It found that since the union acquiesced in a requirement that any agreement be subject to OMB approval, OMB's disapproval of the agreement "meant that the agreement was not final and absent such finality, the Respondent was under no obligation to execute the agreement." In light of this finding, FLRA found it unnecessary to pass on the issue of whether the union had waived its statutory right for the agency to have authorized representatives at the bargaining table. Department of Transportation, Federal Aviation Administration and American Federation of State, County, and Municipal Employees, Council 26, WA-CA-01-0386, December 11, 2003.

TAKING WORK HOME ... ASSIGN WORK ... EXCESSIVE INTERFERENCE
A proposal allowing employees to take work assignments home in order to complete an assignment on a weekend or during the evening and be compensated with compensatory time or overtime excessively interferes with the right to assign work. "Although the Agency would retain the right to deny an employee's request to take work home, the proposal would operate to severely restrict the Agency's right to do so." Professional Airways Systems Specialists and Department of Transportation, Federal Aviation Administration, Kansas City, Missouri, 0-NG-2702, December 8, 2003, 59 FLRA No. 79.

ASSIGNMENT AND REASSIGNMENT BY SENIORITY
In a split decision (Chairman Cabaniss dissenting), the Authority found that a proposal requiring the selection of the most senior secretary bidding on a vacant team position excessively interferes with management's rights to assign work and assign employees. "We find particularly burdensome the proposal's requirement that only seniority be considered when assigning and reassigning unit secretaries. In this regard, the proposal provides no circumstance in which the Agency could determine--based on experience, length of service, or some other factor--that one secretary is better qualified for a particular assignment than another." American Federation of Government Employees, Local 3933 and Department of Justice, Federal Bureau of Prisons, Federal Prison Camp, Duluth, Minnesota, 0-NG-2706, December 8, 2003, 59 FLRA No. 78.

UNLAWFUL PERFORMANCE AWARDS
FLRA turned down union exceptions to an award in which the arbitrator found that performance awards for nonuse of sick leave, being selected as a preceptor, longevity, and obtaining a higher degree were contrary to law and regulation. FLRA agreed that such awards are contrary to law because they aren't performance based. "The law and regulations governing awards only authorize awards for an employee's superior performance or activity, and the Union does not cite to any other authority that would permit an agency to make an expenditure for awards such as those created [by a committee of agency and union representatives]. . . . In addition, the OPM regulations limit the Agency's discretion in giving awards for performance based activities and the Agency may not take action inconsistent with the regulations." American Federation of Government Employees and Department of Veterans Affairs, Medical Center, Asheville, North Carolina, 0-AR-3711, November 28, 2003, 59 FLRA No. 74.