PARKING ... CONTRACT INTERPRETATION
Finding FLRA's interpretation of the contract "entirely untenable,"
the D.C. Circuit reversed FLRA's dismissal of one of two refusal-to-bargain
ULP complaints. (FLRA, based on its interpretation of the contract's
provisions on midterm bargaining procedures, had found that the
VA Medical Center's changes in parking policy weren't implemented
until after the period for timely submission of proposals had
run.) The court affirmed, however, FLRA's dismissal of the second
complaint, agreeing that patient, as opposed to employee, parking
is a permissive subject of bargaining dealing with the means of
performing the agency's work, and that there was no duty to bargain
on impact and implementation because the Medical Center's decision
to let patients park in a designated "employee lot"
had a de minimis impact. National Association of Government
Employees, Local R5-136 v. Federal Labor Relations Authority,
No. 03-1127 (D.C. Cir. April 6, 2004).
JUSTIFIED DISCRIMINATION ... APPARENT
CONFLICT OF INTEREST ... ยง 7120(e)
FLRA turned down union exceptions to an award in which the arbitrator
denied a grievance alleging that the Congressional Research Service
of the Library of Congress violated the CBA and the Statute when
it reassigned to another analyst work performed for Congress (dealing
with collective bargaining issues as they related to the Department
of Homeland Security) by an analyst who was the president of the
Congressional Research Employees Association, IFPTE. The arbitrator
had found that the reassignment of work was justified because
it was necessary to avoid an apparent conflict of interest. The
Authority concluded, among other things, that "the Arbitrator's
finding of an apparent conflict of interest is consistent with
the Authority's precedent interpreting and applying §7120(e)."
Congressional Research Employees Association, IFPTE, Local
75 and Library of Congress, 0-AR-3777, May 28, 2004, 59 FLRA
No. 175.
INFORMATION DISCLOSURE ... NEGOTIABILITY
... ASSIGN WORK
In a split decision (Member Pope dissenting), proposals requiring
the agency to provide a great deal of information are nonnegotiable
because they affect the right to assign work. (No claim was made
that the proposals were §7106(b)(2) procedures or §7106(b)(3)
appropriate arrangements.) "The Agency argues, and the Union
does not dispute, that the Agency 'would have to remove several
employees from their regularly assigned duties for several weeks
to collect, collate and redact approximately 9,800 documents containing
confidential law enforcement and privacy information.'" National
Federation of Federal Employees, Locals 951 and 2152, International
Association of Machinists and Aerospace Workers and Department
of Interior, Bureau of Land Management, California State Office,
Sacramento, California, 0-NG-2682 and -2685, May 13, 2004,
59 FLRA No. 170.
RESTRICTING USE OF CELL PHONES
-
In a negotiability decision, the Authority
held that proposals seeking to create exceptions to the agency's
policy of prohibiting inspectors from carrying any wireless
communication devices while on duty in primary and secondary
inspection areas excessively interfered with the right to determine
internal security practices. "[A]llowing employees to carry
such devices will increase the risk that inspectors will be
distracted from their duties in inspecting individuals and cargo
and detecting terrorists, drug-smuggling or other illicit activity."
National Treasury Employees Union and Department of Homeland
Security, 0-NG-2733, April 22, 2004, 59 FLRA No. 154.
-
In an unfair labor practice case, it held that the agency did
not change conditions of employment when -- on discovering that
an immigration inspector had used a personal cell phone in an
attempt to allow drug smugglers to enter the U. S. without being
inspected -- it issued interim guidelines reaffirming its policy
of prohibiting cell phones and pagers in primary and secondary
inspection areas. However, the agency committed a ULP when the
agency didn't respond to the union's request to rescind the interim
guidelines. Department of Homeland Security and National Treasury
Employees Union, WA-CA-02-0485, May 6, 2004, 59 FLRA No. 165.
FORMAL DISCUSSIONS ... EEO INVESTIGATIONS
BY CONTRACTORS
The Authority, relying on EEOC guidance with respect to the Americans
with Disabilities Act (ADA), set aside that portion of an award
directing the agency to assign a parking place as a reasonable
accommodation because it was contrary to the Rehabilitation Act
of 1973. "As the breakdown in the interactive process is traceable
to the failure of the grievant to update the information on her
disability, . . . the burden of that breakdown falls on the grievant
and precludes her from claiming that the Agency failed to provide
her a reasonable accommodation." Department of the Army, Corps
of Engineers, Huntington District, Huntington, West Virginia and
American Federation of Government Employees, Local 3729, 0-AR-3751,
March 31, 2004, 59 FLRA No. 142.
PAY ... SOLE AND EXCLUSIVE DISCRETION
In a split decision (Member Pope dissenting), the Authority found
nonnegotiable a proposal requiring that relocated employees continue
to receive, for three years after their relocation, the geographical-based
pay of the office from which transferred (if it is higher than
that of the area to which the employee is transferred). In the
majority's view, the Comptroller of the Currency has sole and
exclusive discretion to fix employees' compensation. National
Treasury Employees Union and Department of the Treasury, Office
of the Comptroller of the Currency, Washington, D.C., 0-NG-2730,
April 12, 2004, 59 FLRA No. 148.
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