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 Number 137 September 2000 COURT DECISIONS | FLRA | MSPB
COURT DECISIONS FAIR REPRESENTATION ... GENERAL COUNSEL DECISION NOT TO ISSUE A COMPLAINT. The 2nd Circuit held that it has no subject matter jurisdiction over an individual's petition to review a decision by the Authority's General Counsel to not issue an unfair labor practice complaint involving the duty of fair representation. The court noted that "[i]t was the General Counsel, . . . not the Authority, that made the final decision not to issue a complaint on petitioner's unfair labor practice charge. There is thus no 'final order of the Authority' . . . before us . . . ." Samuel M. Rizzitelli v. Federal Labor Relations Authority, Docket No. 00-4011 (2nd Cir. May 17, 2000). FLRA DECISIONS EEO INVESTIGATOR INTERROGATION OF UNION STEWARD. FLRA disagreed with the ALJ and held that the agency committed a ULP when the agency's EEO investigator interrogated a union steward concerning a unit employee's statements to the steward and when the local EEO coordinator presented the steward with a settlement agreement concerning a supervisor's EEO complaint against the steward. Because the agency assigns individuals from other locations to conduct EEO investigations at the site involved in this case, FLRA ordered that copies of the notice be distributed nationwide to all of the agency's EEO investigators. There is, however, no nationwide posting of the notice. Department of Veterans Affairs and American Federation of Government Employees, Local 1687, CH-CA-80325, September 26, 2000, 56 FLRA No. 117. DISCIPLINE ... DENIAL OF TDY ASSIGNMENT ... BEP TEST. FLRA turned down agency exceptions to an award in which the arbitrator sustained a grievance alleging that the agency violated the contract's provisions requiring rotation of temporary duty assignments when, without explanation, it passed over the grievant in making temporary duty assignments. The arbitrator found that the action was based on allegations of improper conduct during a previous TDY assignment, which were more appropriately handled under the agency's disciplinary procedures, and ordered the grievant made whole for any lost pay and benefits. FLRA found that the BEP test didn't apply because enforcement of the contract's TDY rotation procedure didn't affect the right to assign work. Department of Defense, Defense Logistics Agency, Defense Distribution Center, Distribution Depot Red River, Texarkana, Texas and National Association of Government Employees, Local R14-52, 0-AR-3276, September 26, 2000, 56 FLRA No. 116. PERFORMANCE RATING FORMULA ... EXCESSIVE INTERFERENCE. Proposals establishing the levels of performance needed to achieve a particular summary rating excess-ively interfere with the right to direct employees and assign work. Moreover, "even if the parties bargained over the formula in the past, there is no basis to conclude that such previous bargaining renders future bargaining mandatory." American Federation of Government Employees, Local 225 and Department of the Army, Armament Research, Development and Engineering Center, Picatinny Arsenal, New Jersey, September 25, 2000, 56 FLRA No. 115. PERFORMANCE RATING ... LIMITATION ON REVIEWING OFFICIAL'S AUTHORITY. FLRA turned down the agency's exceptions to an award in which the arbitrator—relying on witness testimony, documentary evidence, and the grievant's past performance—held that the reviewing official's lowering of the rating given the grievant by the first line supervisor was improper, and ordered that the grievant's performance rating be restored to "outstanding." Department of Agriculture, Farm Service Agency, Oklahoma State Office, Stillwater, Oklahoma and American Federation of Government Employees, Local 3354, 0-AR-3295, September 22, 2000, 56 FLRA No. 112. PERFORMANCE REQUIREMENTS ... DISCIPLINE. A proposal precluding the agency from taking disciplinary or performance-based actions based on assessments of performance under the agency's Quality Assessment Program is nonnegotiable because it interferes with the right to discipline. Portions of another proposal, requiring the agency to negotiate acceptable quality levels whenever they are changed, interferes with the rights to direct and assign work. The union's "appropriate arrangement" claims aren't addressed because it failed to supply arguments and authorities supporting such a claim. American Federation of Government Employees, Local 1709 and Department of the Air Force, Dover Air Force Base, Dover, Delaware, 0-NG-2523, August 11, 2000, 56 FLRA No. 86. MSPB DECISIONS RETROACTIVE APPEAL RIGHTS ... JURISDICTION. Where Congress retroactively grants appeal rights to the Merit Systems Protection Board (MSPB), the Board will take jurisdiction of otherwise untimely appeals. In the Wendell H. Ford Aviation Investment and Reform Act, Congress reversed itself and granted Board jurisdiction over appeals by Federal Aviation Administration (FAA) employees retroactive to April 1996. Marc Miller v. Department of Transportation, DE-0752-00-0280-I-1, July 12, 2000. DUE PROCESS ... EX PARTE COMMUNICATIONS ... HARMFUL ERROR. Ex parte information considered by a deciding official is not material when it does not warrant a different outcome, and therefore does not require reversal. Daniel Powers v. Department of the Treasury, BN-0752-99-0048-I-1, July 5, 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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