UNACCEPTABLE PERFORMANCE... ABSOLUTE PERFORMANCE STANDARDS
Federal agencies have the authority to set absolute standards for employees. Such standards must be applied reasonably, based on objective criteria, and communicated to the employee in advance. Guillebeau v. Department of the Navy, No. 03-3220 (Fed. Cir. March 24, 2004).

MILITARY DUTIES
The D.C. Circuit reversed the Authority and found that a proposal dealing with the assignment of military training duties during hours of civilian work does not come into conflict with 10 U.S.C. § 976(c). "[S]ection 976(c)(2) prohibits bargaining not on behalf of members of the National Guard, but rather on behalf of members of the National Guard 'who [are] serving on full-time National Guard duty.' Because the union's proposal applies exclusively to those military training duties that the Guard assigns to technicians during hours of civilian work and for civilian pay, it falls outside the terms of section 972(c)(2)." Association of Civilian Technicians, Wichita Air Capitol Chapter v. Federal Labor Relations Authority, No. 03-1141 (D.C. Cir. March 12, 2004). Review of 58 FLRA No. 9.

MANAGERIAL DISCRETION... EMPLOYEE REASSIGNMENT
The Federal Circuit ruled on MSPB's test for determining whether a removal based on refusal to accept a reassignment was reasonable. Frey v. Department of Labor, No. 03-3329 (Fed. Cir. March 3, 2004).

INAPPLICABILITY OF PRONG II OF BEP TEST TO REMEDIES PROVIDED FOR BY LAW ... SEXUAL HARASSMENT ... HOSTILE ENVIRONMENT
In rejecting the agency's exceptions claiming a remedy placing restrictions on the supervisor's interaction with the grievant flunked prong II of BEP because it didn't constitute a reconstruction of what management would have done if it had not violated Title VII, FLRA said the following: "[W]e hold that when an arbitrator issues a remedy for a violation of an applicable law such as Title VII, which provides for a remedy that affects management's rights under § 7106(a)(2)(A) of the Statute, it is not appropriate to apply prong II of BEP to assess whether the remedy is legal. Rather, the appropriate inquiry is whether the remedy is provided for by the relevant applicable law. . . ." Federal Bureau of Prisons, Metropolitan Detention Center, Guaynabo, Puerto Rico and American Federation of Government Employees, Council of Prison Locals, Local 4052, 0-AR-3701, March 31, 2004, 59 FLRA No. 141.

DE MINIMIS TEST APPLIES TO ALL CHANGES IN CONDITIONS OF EMPLOYMENT
Citing decisions under the Executive Order 11491 labor-management relations program and NLRB decisions (esp. Peerless Food Products, Inc., 236 NLRB 161 (1978)) under the National Labor Relations Act, the Authority (Member Pope dissenting) extended the application of the de minimis test to changes in conditions of employment that are substantively negotiable. "No interests are served by requiring 'bargaining over every single management action, no matter how slight the impact of the action[.]'" Social Security Administration, Office of Hearings and Appeals, Charleston, South Carolina and Association of Administrative Law Judges, International Federation of Professional and Technical Engineers, AFL-CIO, AT-CA-0093, February 19, 2004, 59 FLRA No. 118.

USING GROUND RULES TO EXPAND THE SCOPE OF I&I BARGAINING
An agency has no obligation to bargain over a ground rule exceeding the scope of impact and implementation bargaining. "[I]f unions could condition impact and implementation bargaining on the negotiation of unrelated matters, the increased bargaining power available would exceed the latitude given unions by Congress in that scheme. The resultant delay would serve no useful purpose in accomplishing the statutory goal of an effective and efficient Government." Customs Service and National Treasury Employees Union, 0-AR-3636, February 27, 2004, 59 FLRA No. 128.

REASONABLE ACCOMMODATION
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.