U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

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
		SETTLEMENT AGREEMENT
		WHISTLEBLOWING ... COVERAGE
	FLRA DECISIONS
		PROMOTION RERUN ... BEP TEST
		ATTORNEY FEES FOR OPPOSING "UNFOUNDED" EXCEPTIONS
		APPROPRIATE ARRANGEMENT ... WANDER GUARD BRACELETS FOR HIGH RISK PATIENTS
		PERFORMING HIGHER-GRADED DUTIES ... DEFICIENT AWARD
	MSPB DECISIONS
		WHISTLEBLOWING

SETTLEMENT AGREEMENT.  A settlement agreement may not impose obligations upon a third party without its consent. James E. Foreman v. Department of the Army, No. 00-3195 (Fed. Cir., February 23, 2001).

WHISTLEBLOWING ... COVERAGE.  The Federal Circuit upheld an arbitrator's decision on the two arguments presented: (1) the employee lacked a reasonable belief that he had knowledge of a violation of law, rule, regulation, etc., sufficient to invoke the Whistleblower Protection Act; and (2) the employee had no right to union representation during an agency interview because the investigation was in a preliminary or background stage and the agency lacked a individualized suspicion that the employee engaged in misconduct warranting disciplinary action. Salvatore Giove v. Department of Transportation, No. 99-3159 (Fed. Cir., October 31, 2000).

PROMOTION RERUN ... BEP TEST.  The Authority, Chairman Cabaniss dissenting in part, turned down agency exceptions to an award in which the arbitrator "clarified" the basis of his earlier award (in which he had directed the rerun of a promotion action using a rating panel that excluded all members of the previous panel and requiring the weight to be assigned to questions asked in the rerun interviews changed) by incorporating by reference then-Chairman Wasserman's dissent in 56 FLRA No. 48. Department of the Navy, Supervisor of Shipbuilding, Conversion and Repair, Newport News, VA and National Association of Government Employees, Local R4-2, 0-AR-3236 (56 FLRA 339 (2000)), March 29, 2001, 57 FLRA No. 12.

ATTORNEY FEES FOR OPPOSING "UNFOUNDED" EXCEPTIONS.  The Authority, citing MSPB and Federal Circuit decisions, turned down agency exceptions to an award of attorney fees for fees incurred in opposing agency exceptions to the arbitrator's initial award. Since the arbitrator had determined that the agency should have known that its exceptions to the arbitrator's initial award would be denied and were wholly unfounded, FLRA concluded that the award satisfied Allen criteria 2 and 5 and thus attorney fees were warranted in the interest of justice. Naval Undersea Warfare Center and National Association of Government Engineers, Federal Union of Scientists and Engineers, 0-AR-3253, March 29, 2001, 57 FLRA No. 11.

APPROPRIATE ARRANGEMENT ... WANDER GUARD BRACELETS FOR HIGH RISK PATIENTS.  Although a proposal requiring that high risk (usually mentally impaired) patients assigned to the acute care ward (ACW) be given wander guard bracelets affects management's right to determine internal security practices, it nonetheless is a negotiable appropriate arrangement. Because patients in the ACW are seriously ill and require significant time and attention and because the ACW is often short staffed, the risk of an ACW nurse not detecting a high risk patient leaving the ward is increased. This increased potential for lowered performance appraisals constitutes an adverse effect. Moreover, the proposal is sufficiently tailored and passes the excessive interference balancing test. National Federation of Federal Employees and Department of Veterans Affairs, 0-NG-2544, March 28, 2001, 57 FLRA No. 9.

PERFORMING HIGHER-GRADED DUTIES ... DEFICIENT AWARD.  The Authority set aside one portion of an award requiring the agency to compensate the grievant at a supervisory rate because the arbitrator failed to identify a non-discretionary policy set forth either in the agreement or elsewhere mandating temporary promotions for performing higher-graded duties. The other portion, requiring that the grievant be reassigned to her former position, is also set aside because such reassignment is moot because the grievant is no longer employed by the agency. Department of the Army, Headquarters, III Corps and Fort Hood and American Federation of Government Employees Local 1920, 0-AR-3252 (56 FLRA 544 (2000)), March 6, 2001, 56 FLRA No. 200.

WHISTLEBLOWING.  A Federal employee may make disclosures, which are protected under the Whistleblower Protection Act (WPA), even if the disclosures are part of the employee's job duties, provided the disclosures involve wrongdoing by Federal employees (as opposed to reports of possible breach of law or regulation by private parties). Eugene Johnson v. Department of Health and Human Services, DC1221000199-W-1 (August 21, 2000).