Select Issue:
 Number 138 December 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 DISCRIMINATION. A plaintiff's prima facie case of discrimination, combined with additional evidence that proves the respondent's offered explanation is false, may support a finding of unlawful discrimination. Reeves v. Sanderson Plumbing Products, Inc. 120 S. Ct. 2097 (2000). TECHNICIAN PAY WHILE ON ACTIVE DUTY. The D.C. Circuit agrees with the Authority's decision in 55 FLRA No. 153 and finds that 10 U.S.C. 976(c) prohibits bargaining on a proposal on how technicians will be paid while on active duty. Association of Civilian Technicians, Schenectady Chapter v. Federal Labor Relations Authority, No. 99-1476 (D.C. Cir. Nov. 7, 2000). FLRA DECISIONS FAIR HEARING ... OFFICIAL TIME. FLRA vacated that portion of the award granting official time because the arbitrator did not conduct a fair hearing with respect to that issue. "[B]y failing to provide the Agency with an opportunity to respond to the official time issue raised [for the first time] by the Union's post-hearing brief, the Arbitrator prejudiced the Agency in a manner that affected the fairness of the proceeding as to that issue." General Services Administration, Region 9, Los Angeles, California and American Federation of Government Employees, Council 236, 0-AR-3298, December 8, 2000, 56 FLRA No. 164. WORK AREA RESTRICTION ... BEP TEST ... PROPHYLACTIC APPROPRIATE ARRANGEMENT. FLRA turned down agency exceptions to an award in which the arbitrator ordered the agency to remove the work area restrictions it placed on the grievant. Although the award affected management's right to assign work, FLRA found that the arbitrator was enforcing a contract provision requiring all personnel actions to be free of discrimination or reprisal, which constituted a prophylactic appropriate arrangement designed to protect unit employees from discrimination or retaliation. Department of Veterans Affairs Medical Center, Coatesville, Pennsylvania and National Association of Government Employees, Local R3-35, 0-AR-3258, November 30, 2000, 56 FLRA No. 161. LUNCH PERIOD ... PAST PRACTICE ... INAPPROPRIATE REMEDY. Although the arbitrator found that a practice inconsistent with the contract did not modify the terms of the agreement (which the agency violated when it formalized the practice), his remedy ordering retroactive overtime or compensatory time was inappropriate because duty-free lunch periods aren't compensable under 5 CFR 551.441. Department of Justice, Federal Bureau of Prisons, Management and Specialty Training Center, Aurora, Colorado and American Federation of Government Employees, Council of Prison Locals C33, 0-AR-3288, November 30, 2000, 56 FLRA No. 158. NON-DUES ALLOTMENT. A proposal requiring the agency to deduct $2.00 from each biweekly paycheck of bargaining unit employees who have not joined the union (unless the employee submits a request that the deduction not be made) is contrary to 5 CFR 550.312(a) which allows an employee to make an allotment only if he or she "specifically designate[s] the allottee and the amount of the allotment." National Association of Government Employees, Local R7-51 and United States Department of the Navy, Naval Public Works Center, Great Lakes, Illinois, 0-NG-2550, November 29, 2000, 56 FLRA No. 157. "COVERED BY" DOCTRINE ... ADMINISTRATIVE LEAVE ... CHANGING A PAST PRACTICE. The agency committed a ULP when it changed a past practice of granting administrative leave to unit employees participating in the Florida Law Enforcement Games without notifying the union and giving it an opportunity to bargain over the change. In rejecting the agency's claim that the matter was covered by the contract, FLRA clarified the "covered by" doctrine, saying that the "third" or "intent" part of the test, "is not a separate, independent criterion. Rather, it is an integral component of that part of the 'covered by' analysis to determine whether the matter sought to be bargained is inseparably bound up with and thus is plainly an aspect of a subject covered by the contract." U. S. Customs Service, Customs Management Center, Miami, Florida and National Treasury Employees Union, Chapter 137, AT-CA-80566, September 29, 2000, 56 FLRA No. 136. MSPB DECISIONS REASONABLE ACCOMMODATION. In cases involving reasonable accommodation, the appellant bears the burden of proving that vacancies exist for possible reassignment and the agency must provide requested information on the status of vacant positions. Lillian F. Miller v. U.S. Postal Service, CH-0752-99-0342-I-1, March 21, 2000. Agencies having general questions concerning this publication, including suggestions for improvement, are encouraged to call Hal Fibish on (202) 606-2930.
|
