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 Number 136 July 2000 COURT DECISIONS | FLRA | MSPB
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. COURT DECISIONS CLARIFICATION OF UNIT ... STANDING. The 9th Circuit, holding that it has jurisdiction to review petitions filed under 5 USC 7111, found that 5 CFR 2422.2, which denies individuals standing to file clarification-of-unit petitions under 5 USC 7111(b)(2), is an invalid regulation because inconsistent with the express language of the LMR statute. Jeffrey W. Eisinger v. Federal Labor Relations Authority, No. 98-70766 (9th Cir. July 17, 2000). Review of 54 FLRA No. 58. MITIGATION/PENALTY. Prior disciplinary actions that are subject to current challenge may not be used to support the reasonableness of a penalty. Maria A. Gregory v. United States Postal Service, No. 00-3123 (Fed. Cir. May 15, 2000). FLRA DECISIONS THREATS ... FITNESS-FOR-DUTY REGULATIONS ... JUST CAUSE. Although FLRA initially (in 53 FLRA No. 160) remanded an award setting aside a 14-day suspension for making threats because it was unable to determine whether the arbitrator held that the agency improperly failed to order (or to offer) a fitness-for-duty exam, it found a sufficient basis, independent of the arbitrator's concern regarding such an exam, to affirm the award, thereby avoiding any need to address OPM's claim, in its amicus brief, that both the arbitrator and the Authority in its initial decision misconstrued 5 CFR 339.302. Federal Trade Commission and American Federation of Government Employees, Local 2211, 0-AR-2900-001, June 22, 2000, 56 FLRA No. 68. OFFICIAL TIME ... LOBBYING CONGRESS ... PENDING v. DESIRED LEGISLATION. FLRA, noting that section 8012 of the 1999 DOD Appropriations Act prohibits use of appropriated funds to influence congressional actions on "legislation or appropriation matters pending before Congress" (emphasis added), and noting that the disapproved provision deals with official time to lobby Congress on "desired" (but not "pending") legislation, holds that the provision doesn't violate any law and orders the agency to rescind its disapproval of the provision. Association of Civilian Technicians, Razorback Chapter 117 and Arkansas National Guard, 0-NG-2498, June 6, 2000, 56 FLRA No. 62. VIDEOTAPING INTERVIEWS ... INTERNAL SECURITY PRACTICES ... I&I ULP. Citing 52 FLRA No. 2 (use of covert video cameras) and 18 FLRA No. 97 (use of sworn statements and polygraph tests), FLRA held that videotaping interviews is "an investigative technique to obtain truthful and reliable information in the conduct of employee investigative interviews. This use of the videotape to discern truth via body language or the demeanor of the witness in investigative interview is as legitimate as obtaining 'truthful and reliable' information through a polygraph test." Although the decision is reserved to management, FLRA found that the agency was guilty of an impact and implementation (I&I) ULP when it didn't notify the union of its decision to videotape a couple of interviews. As part of the remedy, it ordered the agency to furnish the union, on its request, with copies of the videotapes. Treasury, Customs Service and National Treasury Employees Union, Chapters 143 and 168, DA-CA-60047 and 8, May 16, 2000, 56 FLRA No. 56. BARGAINING MISCONDUCT ... NOT RESPONDING TO BARGAINING REQUEST. In finding that the agency committed an impact-and-implementation (I&I) ULP when it implemented changes in the agency's body search policy without responding to the union's bargaining request, the Authority rejected the agency's post-implementation statement that, in the absence of negotiable I&I proposals, the agency was free to implement the policy. "When an agency does not respond to a union's request to bargain, it is not necessary for the Authority to resolve the negotiability of the union's proposals in order to find that unilateral implementation of a change in working conditions violates the Statute." Immigration and Naturalization Service, WA-CA-80124, May 5, 2000, 56 FLRA No. 50. MSPB DECISIONS WHISTLEBLOWING ... JURISDICTION. The Merit Systems Protection Board broadens its interpretation of what constitutes whistleblowing under the Whistleblower Protection Act. Ganski v. Interior, PH122198011-M-1, May 4, 2000. JURISDICTION ... INVOLUNTARY RETIREMENT. To establish that a disability retirement application was involuntary, and therefore to establish Board jurisdiction, an appellant must prove that the agency failed to reasonably accommodate his or her disabling condition. With regard to reassignment as an accommodation, there must be evidence that vacant positions existed and that the appellant indicated to the agency that he or she wanted to continue working, rather than retire. James Rule v. Department of Veterans Affairs, 85 MSPR 388 (March 7, 2000) Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930.
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