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
		PENALTY ... PRIOR DISCIPLINE
		WEINGARTEN EXAM ... OIG CRIMINAL INVESTIGATIONS
		WHISTLEBLOWING ... JURISDICTION
	FLRA DECISIONS
		VETERANS READJUSTMENT APPOINTMENT ... TIME IN GRADE REQUIREMENTS
		APPROPRIATE UNIT ... COMMUNITY OF INTEREST
		CONDITIONAL SELECTION ... DRUG TESTING ... PROPERTY INTEREST ... DUE PROCESS
		DAMAGES UNDER THE PRIVACY ACT
		FAILURE TO RECOGNIZE DESIGNATED REPRESENTATIVE
		COMPENSATION FOR INCREASED COMMUTING TIME
	MSPB DECISIONS
		CONSTRUCTIVE SUSPENSION
		EXCEPTED SERVICE ... LEAVE WITHOUT PAY

PENALTY ... PRIOR DISCIPLINE.  The Supreme Court held that the Merit Systems Protection Board may rely on an employee's prior disciplinary action in determining the appropriateness of a current penalty even when the prior discipline is undergoing review in another forum. USPS v. Gregory, Supreme Court, No. 00-758, November 13, 2001.

WEINGARTEN EXAM ... OIG CRIMINAL INVESTIGATIONS.   The D.C. Circuit, interpreting and applying the Supreme Court's decision in NASA v. FLRA, 527 U.S. 229 (1999), upheld the Authority's decision, in 56 FLRA No. 87, that the Department of Justice's Office of Inspector General (OIG) violated the Weingarten rule when a bargaining unit employee's request for union representation was refused. The court rejected the agency's contention that the OIG is not a "representative of the agency" when conducting a criminal investigation. Department of Justice and Office of Inspector General, Department of Justice v. FLRA, 266 F.3d 778 (D.C. Cir., 2001).

WHISTLEBLOWING ... JURISDICTION.  The Federal Circuit held that an employee's complaints made in his or her normal course of duties to a supervisor about the supervisor's conduct are not protected disclosures. Huffman v. OPM, No. 00-3184 (Fed. Cir., August 15, 2001).

VETERANS READJUSTMENT APPOINTMENT ... TIME IN GRADE REQUIREMENTS.  FLRA turned down agency exceptions to an award directing a promotion retroactive to the date of the reclassification of a position, finding that OPM's time-in-grade requirements don't apply because grievant had been promoted to an excepted service position under a veterans readjustment appointment pursuant to 5 CFR Part 307. Although the DVA, by agency regulation, had extended OPM's time-in-grade requirements to its excepted service employees, the agency regulation was superseded by a conflicting provision in the collective bargaining agreement. Department of Veterans Affairs, Alaska Health Care System, Anchorage, Alaska and American Federation of Government Employees, Local 3028, 0-AR-3418, November 20, 2001, 57 FLRA No. 111.

APPROPRIATE UNIT ... COMMUNITY OF INTEREST.  The Authority, noting that "[f]or a petitioned-for bargaining unit to be appropriate, the employees at issue must have significant employment concerns or personnel issues that are different or unique from those of other employees[,]" turned down the union's application for review of a Regional Director's determination that a proposed unit of protection rangers was not appropriate because the employees at issue do not have a separate community of interest apart from other employees at the Lake Mead National Recreation Area. Department of Interior, National Park Service, Lake Mead National Recreation Area and Fraternal Order of Police, First Federal Lodge I-F, SF-RP-00052, November 2, 2001, 57 FLRA No. 109.

CONDITIONAL SELECTION ... DRUG TESTING ... PROPERTY INTEREST ... DUE PROCESS.  In turning down union exceptions to an award in which the arbitrator found that the results of the grievant's pre-employment drug test were a proper basis for not selecting him for a permanent position, the Authority rejected the union's claim that the grievant had a property interest in the position. Although statements by management officials supported the conclusion that the grievant had been conditionally selected for promotion subject to passing a pre-employment drug test, FLRA said that under such circumstances "there is no basis to conclude that the grievant had a property interest in the position." National Association of Government Employees, Local R4-75 and Department of the Interior, National Park Service, Asheville, North Carolina, 0-AR-3395, October 5, 2001, 57 FLRA No. 101.

DAMAGES UNDER THE PRIVACY ACT.  Although the arbitrator found that the agency violated the Privacy Act when, among other things, the grievant's personnel file was put in the custody of a co-worker, he concluded he was without authority to act on the union's request for damages. The Authority, Chairman Cabaniss dissenting, found the latter part of the award deficient and remanded the case to the parties for resubmission to the arbitrator for a decision on the merits of the grievant's claim for damages under the Privacy Act. American Federation of Government Employees, Local 987 and Department of the Air Force, Air Force Materiel Command, Robins Air Force Base, Georgia, 0-AR-3324, September 28, 2001, 57 FLRA No. 97.

FAILURE TO RECOGNIZE DESIGNATED REPRESENTATIVE.  The Authority disagreed with the ALJ, who recommended dismissal of the complaint, and instead found that the agency violated § 7116(a)(1) and (5) when it notified the union that it would not permit an attorney to attend a step 2 grievance meeting. FLRA disagreed with the ALJ's interpretation of the agreement as well as with his waiver theory. Regarding the latter, it said: "the mere fact that an arbitration clause provides the sole mechanism for resolving contract disputes does not obviate a party's right to make claims of statutory violations through the unfair labor practice procedures[.]" Department of Veterans Affairs and National Association of Government Employees, Local R5-136, SEIU, AFL-CIO, AT-CA-90578, September 26, 2001, 57 FLRA No. 92.

COMPENSATION FOR INCREASED COMMUTING TIME.  FLRA turned down agency exceptions to an award in which the arbitrator, finding that a contract provision was an "express provision" that permitted compensation for commute travel under the Portal-to-Portal Act, and ordered, among other things, that the grievants, who had been temporarily assigned to the Seattle office, be compensated for the resulting increase in travel time. In a concurring opinion, Chairman Cabaniss noted that the agency would have prevailed had it timely made its argument concerning OPM regulations to the arbitrator. Internal Revenue Service and National Treasury Employees Union, 0-AR-3351, August 17, 2001, 57 FLRA No. 81.

CONSTRUCTIVE SUSPENSION.  The Merit Systems Protection Board held that the test for determining involuntariness is a high one and not assigning an employee sufficient work does not justify the employee to absent himself from the worksite. An absence under such circumstances does not constitute a constructive suspension. Gerges v. Navy, BN0752990097-I-1, September 10, 2001.

EXCEPTED SERVICE ... LEAVE WITHOUT PAY.  The Merit Systems Protection Board holds that all time in a leave without pay status counts toward completion of the one-year of current and continuous service necessary for a preference eligible employee in the excepted service to have adverse action rights. Campbell v. United States Postal Service, AT-0752-0002320I1, June 21, 2001

Questions or comments may be emailed to lmr@opm.gov, faxed to (202) 606-2613, or mailed to the U.S. Office of Personnel Management, Room 7H28, Theodore Roosevelt Building, 1900 E Street, NW., Washington, DC 20415-2000..