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
		FLAGRANT MISCONDUCT ... ASSAULTIVE BEHAVIOR
		VOLUNTARY LEAVE TRANSFER PROGRAM
		SUNDAY DIFFERENTIAL ... SECTION 704 EMPLOYEES
	FLRA DECISIONS
		ON-AIR COMMENTS ... CHAPTER 75 v. CHAPTER 43 ... PROHIBITED PERSONNEL PRACTICE
		USING NGP TO COLLECT ARBITRATION FEES
		SECURITY WORK ... ACCESS TO CLASSIFIED MATERIAL
		CONTRACTING OUT ... COMMERCIAL ACTIVITIES STUDY ... PRE-DECISIONAL DISCLOSURE OF MEO ... § 7114(b)(4) PARTICULARIZED NEED/COUNTERVAIL-ING INTERESTS TEST OF NEED ... OMB CIRCULAR A-76 AS "PROHIBITED BY LAW" LIMITATION ON DISCLOSURE
		CHANGE IN PAST PRACTICE ... EEO PACKAGES ... REFUSAL TO BARGAIN JURISDICTION ... CONDITION OF EMPLOYMENT ... DE MINIMIS
		ADEQUATE NOTICE ... BARGAINING WAIVER ... SET ASIDE AWARDS
	MSPB DECISIONS
		CONSEQUENTIAL DAMAGES

FLAGRANT MISCONDUCT ... ASSAULTIVE BEHAVIOR.  The D.C. Circuit reversed the Authority's split decision (Member Cabaniss dissenting) in 57 FLRA No. 25, where the majority had found that the local union president did not engage in flagrant misconduct when he made threatening gestures and angry remarks while standing "belly to belly" with a supervisor. "[I]t is not reasonable," said the court, "to suppose that Congress considered it permissible and immune from consequence for an employee to commit an assault and battery against a co-worker while ranting, raving and out of control. No employee, including a union official acting in a representational capacity, has the right to put another in fear of being struck or to commit a battery in order to 'present the views of the labor organization' and 'engage in collective bargaining.' 5 U.S.C. § 7102. If the FLRA's 'flagrant misconduct' standard permits such conduct, as the FLRA held it did here, then that standard is an unreasonable interpretation of the limits of §' 7102." Department of the Air Force, 315th Airlift Wing v. Federal Labor Relations Authority, No. 01-1275 (D.C. Cir. July 12, 2002).

VOLUNTARY LEAVE TRANSFER PROGRAM.  The Voluntary Leave Transfer Program does not prohibit an otherwise proper removal of an employee, even if an employing agency has approved an employee's participation in the program and the employee has a positive transferred leave balance. E. Paul Jones v. Department of Transportation, No. 01-3276 (Fed. Cir., July 9, 2002).

SUNDAY DIFFERENTIAL ... SECTION 704 EMPLOYEES.  In disagreeing with the Authority's holding in 56 FLRA No. 51, the 9th Circuit held that agreement on where to locate a reference to Sunday differential pay in the contract does not constitute evidence that Sunday differential pay was a "subject of negotiation" in accordance with prevailing rates and practices. Negotiation, at least for the purposes of section 704(a), is more than a process: it is about something. Department of the Interior, Bureau of Reclamation, Yuma Area Office v. Federal Labor Relations Authority, No. 00-70862 (9th Cir. January 30, 2002).

ON-AIR COMMENTS ... CHAPTER 75 v. CHAPTER 43 ... PROHIBITED PERSONNEL PRACTICE.  The Authority turned down the agency's claim that the arbitrator misapplied Lovshin v. Navy, 767 F.2d 826 (Fed. Cir. 1985) (Lovshin) when, in a clarified award, he held that the agency committed a prohibited personnel practice when it charged the grievant under Chapter 75 for misconduct that was "based solely on performance that is governed by and meets the critical elements set forth for the employee's position." FLRA said that "by charging the grievant with misconduct that turned out to be based solely on conduct that met her critical performance standards, [the agency] did in fact seek to discipline the grievant for failing to perform better than the standards communicated to her pursuant to Chapter 43." United States Information Agency, Broadcasting Board of Governors and American Federation of Government Employees, Local 1812, 0-AR-3435, July 10, 2002, 57 FLRA No. 195.

USING NGP TO COLLECT ARBITRATION FEES.  In a split decision, Member Pope dissenting, the Authority held that an arbitrator may not use the negotiated grievance and arbitration procedure to collect fees that he believes are owed to him by suggesting that a party to the agreement file a grievance on the arbitrator's behalf. Department of the Air Force, Seymour Johnson Air Force Base, North Carolina and National Association of Government Employees, Local R5-188, 0-AR-3425, June 14, 2002, 57 FLRA No. 182.

SECURITY WORK ... ACCESS TO CLASSIFIED MATERIAL.  FLRA turned down NFFE's application for review of a Regional Director's determination that 177 employees involved in an agency unit clarification request following a reorganization were engaged in security work because they had access to classified material. It reaffirmed its decision in Department of Justice, 52 FLRA No. 111, where it had revised its definition of "security work" to include access to classified information. Department of the Army, Corps of Engineers, Army Engineer Research Development Center, Vicksburg, Mississippi and American Federation of Federal Employees, Local 3310, AFL-CIO and National Federation of Federal Employees, Federal District 1, IAMAW, AFL-CIO and International Federation of Professional and Technical Engineers, Local 4, Chapter 1, AFL-CIO, CLC and International Federation of Professional and Technical Engineers, Local 1017, AFL-CIO, CLC, AT-RP-00038, WA-RP-00080, June 6, 2002, 57 FLRA No. 180

CONTRACTING OUT ... COMMERCIAL ACTIVITIES STUDY ... PRE-DECISIONAL DISCLOSURE OF MEO ... § 7114(b)(4) PARTICULARIZED NEED/COUNTERVAILING INTERESTS TEST OF NEED ... OMB CIRCULAR A-76 AS "PROHIBITED BY LAW" LIMITATION ON DISCLOSURE.   The Authority, Member Pope dissenting, found that disclosure wasn't "necessary" within the meaning of § 7114(b)(4) because the activity's countervailing interests in not furnishing the MEO before the activity announced its contracting out decision outweighed any legitimate interests the union may have had in pre-decisional disclosure. Moreover, OMB Circular A-76 (a "law" within the meaning of § 7114(b)(4)) prohibited release of the MEO before the activity announced its decision on the work under study. Department of the Army, Headquarters, Fort Monroe, Virginia and National Association of Government Employees, Local R4-11, SEIU, AFL-CIO, WA-CA-00395, May 24, 2002, 57 FLRA No. 176.

CHANGE IN PAST PRACTICE ... EEO PACKAGES ... REFUSAL TO BARGAIN JURISDICTION ... CONDITION OF EMPLOYMENT ... DE MINIMIS .  FLRA concluded the activity violated 5 U.S.C. § 7116(a)(1) and (5) when it didn't respond to a union request to bargain over the issue of when, and to whom, an EEO counseling package (consisting of blank forms and questionnaires, summaries of EEO law, and descriptions of the EEO complaint process) will be given by the activity's EEO office. Department of the Air Force, Luke Air Force Base, Arizona and American Federation of Government Employees, Local 1547, DE-CA-00216, April 16, 2002, 57 FLRA No. 155.

ADEQUATE NOTICE ... BARGAINING WAIVER ... SET ASIDE AWARDS.   The Authority set aside the arbitrator's interim and final awards in which the arbitrator, after finding that the agency didn't give the union adequate notice of a proposed change in working conditions (temporary discontinuance of ship boarding on overtime), awarded backpay. FLRA found: (1) that the union did, in fact, receive adequate notice; (2) that by its failure to request negotiations it had waived the right to bargain over the change; (3) that the arbitrator misinterpreted the contract; and (4) that the final award violated the Back Pay Act. Department of the Treasury, Customs Service, Port of New York and Newark and National Treasury Employees Union, Chapter 161, 0-AR-3384, March 20, 2002, 57 FLRA No. 151.

CONSEQUENTIAL DAMAGES.  On an issue of first impression, the Board held that future medical costs are recoverable under Title 5, U.S. Code, Section 1221(g)(1)(A)(ii), the expanded provisions of the Whistleblower Protection Act. Joan L. Pastor v. Department of Veterans Affairs, and Office of Personnel Management, and Office of Special Counsel, PH-1221-99-0089-B-2, June 28, 2002

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..