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

FLRA DECISIONS

• AGENCY CAN'T IMPOSE A COMPRESSED WORKWEEK UNDER WORK SCHEDULES ACT

• TERMINATING LOCAL BARGAINING

• SELF-DETERMINATION ELECTIONS ... OVERLAPPING APPROPRIATE UNITS

• ACTING WITHIN THE SCOPE OF ONE'S DUTIES

• BACKPAY NOT AN AUTOMATIC REMEDY FOR AN OVERTIME VIOLATION

• PRIORITY CONSIDERATION VIOLATION ... REMEDIES

• CALL-IN REQUIREMENTS ... AWOL ... INCARCERATION

• TELECOMMUTING ... UNION REPRESENTATIVES ON OFFICIAL TIME

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FLRA DECISIONS

AGENCY CAN'T IMPOSE A COMPRESSED WORKWEEK UNDER WORK SCHEDULES ACT. FLRA turned down agency exceptions to an award in which the arbitrator found the agency violated the Work Schedules Act when it unilaterally imposed a compressed workweek under the Work Schedules Act and awarded backpay and liquidated damages. "[N]othing in the Work Schedules Act authorizes unilateral action by an agency where bargaining unit employees are concerned." Department of Veterans Affairs, VA Pittsburgh Healthcare System and American Federation of Government Employees, Local 2028, 0-AR-3854, December 29, 2004, 60 FLRA No. 104.

TERMINATING LOCAL BARGAINING. In three closely-related cases involving the issue of whether there was a duty to bargain at the local level over changes in the assignment of inspectors, FLRA turned down union exceptions to an award in which the arbitrator held that there was no such duty and set aside two awards in which the arbitrators found that there was such a duty. In all three cases the Authority found that the negotiated duty to bargain at the local level (a permissive subject of bargaining, given that exclusive recognition is at the national level) had been properly terminated. NTEU, Chapter 137 and DHS, Customs & Border Protection, 0-AR-3823, December 17, 2004, 60 FLRA No. 96. DHS, Customs and Border Protection, Port of Seattle and NTEU, Chapter 139, 0-AR-3785, December 17, 2004, 60 FLRA No. 97. DHS, Customs and Border Protection and NTEU, 0-AR-3768, December 17, 2004, 60 FLRA No. 98.

SELF-DETERMINATION ELECTIONS ... OVERLAPPING APPROPRIATE UNITS. The Authority granted, in part, a union's application for review of a Regional Director's decision in which the RD, although finding appropriate three functional units and an all-inclusive region-wide unit, directed elections only for the functional units. Relying partly on private-sector case law, FLRA ordered self-determination elections "in which employees who could be represented in either the all-inclusive or functional units could choose both their unit configuration and representative[.]" Department of the Navy, Naval District of Washington and Int'l Ass'n of Firefighters, Fraternal Order of Police, American Federation of Government Employees, et al., WA-RP-04-0024, 0025, 0026, 0036, 0065, December 7, 2004, 60 FLRA No. 93.

ACTING WITHIN THE SCOPE OF ONE'S DUTIES. FLRA set aside, because mooted by a U.S. District Court decision, an award directing a factfinding hearing to determine whether an agency official was acting within the scope of his duties when he issued a memorandum to management officials that contained sensitive labor relations information which was subsequently leaked and that contained comments that prompted the union to charge the official with libel and slander. General Services Administration, Northeast and Caribbean Region, New York, New York and American Federation of Government Employees, Counsel 236, 0-AR-3779, November 30, 2004, 60 FLRA No. 89.

BACKPAY NOT AN AUTOMATIC REMEDY FOR AN OVERTIME VIOLATION. FLRA turned down the union's exceptions to an award in which the arbitrator, although finding that the agency violated the agreement in denying some employees the opportunity to work overtime, did not order a monetary remedy. FLRA said it "has never required an arbitrator to award backpay under the Back Pay Act to remedy an agreement violation . . . ." National Treasury Employees Union, Chapter 98 and U.S. Department of the Treasury, Internal Revenue Service, Memphis Accounting Management Center, Memphis, Tennessee, 0-AR-3815, 11/30/04, 60 FLRA No. 88.

PRIORITY CONSIDERATION VIOLATION ... REMEDIES. The arbitrator, after finding that the agency violated the agreement when it failed to select the grievant by means of priority consideration, ordered the agency to (1) place the grievant in the GS-7 career ladder position, (2) evaluate her after one year for the GS-9 level and promote her if she is qualified, and (3) grant back pay for the GS-9 position if the grievant is promoted after one year at the GS-7 level. FLRA (Member Pope dissenting in part), set aside that portion of the award ordering back pay contingent on the grievant's promotion to the GS-9 level after one year because it was inconsistent with the Back Pay Act. U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services and American Federation of Government Employees, Local 1923, 0-AR-3817, November 23, 2004, 60 FLRA No. 86.

CALL-IN REQUIREMENTS ... AWOL ... INCARCERATION. FLRA turned down agency exceptions to an award in which the arbitrator, although affirming the 5-day suspension imposed by the agency, found that because the grievant had been incarcerated for driving while intoxicated for 3 of the 4.5 days he was AWOL and was limited in his ability to communictate during that period, the grievant should be charged annual leave, if available, or LWOP for the period of the incarceration. U.S. Department of the AirForce, 72nd Mission Support Group, Tinker Air Force Base, Oklahoma and American Federation of Government Employees, Local 916, 0-AR-3841, November 19, 2004, 60 FLRA No. 85.

TELECOMMUTING ... UNION REPRESENTATIVES ON OFFICIAL TIME. FLRA holds that union representatives on official time are prohibited by law from telecommuting because "the performance of representational duties does not constitute the performance of 'officially assigned duties' within the meaning of ' 359 [of Public Law 106-346]." American Federation of Government Employees, National Council of HUD Locals 222, AFL-CIO and U.S. Department of Housing and Urban Development, Washington, DC, 0-AR-3811, October 8, 2004, 60 FLRA No. 68.