Significant Cases

Table of Contents

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.

FLRA WILL NO LONGER APPLY THE "ABROGATION" TEST IN REVIEWING ARBITRATION AWARDS.  In a split decision the Authority announced that the Customs Service (37 FLRA No. 20) abrogation framework will no longer be followed when reviewing awards in which arbitrators enforce contractual provisions negotiated pursuant to § 7106(b)(3). In determining whether an arbitrator's enforcement of a contractual "arrangement" is authorized, Chairman Cabaniss and Member Armendariz indicated that they will apply an "excessive interference" rather than an "abrogation" standard. Member Pope, on the other hand, indicated that she will determine whether the award "effectively abrogates" the exercise of management's rights. U.S. Department of Justice, Federal Bureau of Prisons, Federal Transfer Center, Oklahoma City, Oklahoma and American Federation of Government Employees, Local 171, 0-AR-3438, September 30, 2002, 58 FLRA No. 21.

FLEXIPLACE FOR UNION REP ON 100% OFFICIAL TIME .  The Authority turned down the union's exceptions to an award in which the arbitrator denied a grievance alleging that the agency violated provisions of (1) the collective bargaining agreement and (2) a flexiplace agreement when it denied the request of a union official on 100% official time to be placed on flexiplace two days per pay period to perform union representational work at his home. American Federation of Government Employees, Local 3911 and United States Environmental Protection Agency, 0-AR-3495, September 19, 2002, 58 FLRA No. 20.

UNIT EXCLUSIONS ... SECURITY WORK ... PERSONNEL .  The union's application for review challenged the Regional Director's decision, in a unit clarification case, to exclude 21 attorney positions from the bargaining unit on the ground that 4 of the employees were engaged in security work within the meaning of§ 7112(b)(6)because their "work includes regular use of, or access to, classified information" and the other 17 were engaged in internal personnel work within the meaning of § 7112(b)(3). The Authority denied the union's application with respect to the RD''s "security work" determinations and, citing 58 FLRA No. 3, directed the parties to file briefs on the "personnel work" issue. United States Department of Justice, Immigration and Naturalization Service, Washington, D.C. and American Federation of Government Employees, Local 511, AFL-CIO, WA-RP-00085, August 26, 2002, 58 FLRA No. 5.

FILLING UNIT POSITIONS ... INTERVIEWING CANDIDATES ... UNION OBSERVER ... RIGHT TO SELECT .  The Authority (Member Pope dissenting) found nonnegotiable a proposal allowing the union to have an observer present at "performance based interviews" (PBIs)--i.e., interviews designed to obtain behavioral examples of the knowledge, skills, and abilities of properly rated and ranked candidates for bargaining unit vacancies--because such interviews are part of management's internal deliberations integrally related to its right to select. Member Pope disagreed because, among other things, at least one participant in the discussions--the candidate being interviewed--is not a management official or a management designee. American Federation of Government Employees, National VA Council 53 and U. S. Department of Veterans Affairs, Vista Clinic, Vista, CA, 0-NG-2624, August 12, 2002, 58 FLRA No. 4.

I&I ULP ... "COVERED BY" DOCTRINE ... CONTRACTUAL DUTY TO BARGAIN .  The Authority (Chairman Cabaniss dissenting in part) turned down agency exceptions to an award in which the arbitrator, holding that the "covered by" doctrine didn't apply to contractual (as opposed to statutory) duty-to-bargain issues, found that the agency violated the agreement when it refused to bargain on the impact and implementation of its decision to change holiday work schedules. U. S. Department of Defense, National Guard Bureau, Adjutant General, Kansas National Guard and Association of Civilian Technicians, Wichita Air Capitol Chapter, Local 4, 0-AR-3443, July 19, 2002, 57 FLRA No. 199.

MANDATORY INCENTIVE AWARDS.  In ordering the parties to adopt the employer's proposal under which all monetary awards are to be given at the discretion of management, the Impasses Panel said that"[p]hilosophically,the Panel believes that limitations upon the discretion to distribute performance and incentive awards should not be unilaterally imposed upon management." Department of Defense, Defense Logistics Agency, Defense Distribution Depot, Susquehanna, New Cumberland, PA and Local 2004, American Federation of Government Employees, AFL-CIO, Case No. 02 FSIP 89, August 23, 2002.

PROCEDURAL ERROR .   The Merit Systems Protection Board continues to hold that: (1) the notice requirement under 5 U.S.C. § 4303(c)(1) is an employee's procedural entitlement, and is subject to a harmful error analysis; and (2) harmful error cannot be presumed. An appellant must prove that any procedural error substantially prejudiced his rights by possibly affecting the agency's decision. Donald M. Salter v. Department of the Treasury, DA0432000380-I-2, August 27, 2002.

AWOL/WORKERS COMPENSATION .  An adverse action based on AWOL cannot be sustained when OWCP determines that the employee was entitled to compensation benefits as a result of a work-related injury for the period charged as AWOL. Brown v. National Archives and Records, BN075299044-R-1, July 31, 2002.

DISABILITY RETIREMENT ... REASONABLE ACCOMMODATION ... WORKPLACE VIOLENCE .  The employee's actions near and after her removal did not support a finding that she was incapable of filing and pursing a disability retirement application and accordingly the Board declined to order the agency to file on her behalf. Evidence did not show that the employee was disabled by reason of her bipolar illness. Neither the Rehabilitation Act nor the Americans with Disabilities Act immunize disabled employees from being disciplined for misconduct in the workplace, provided the agency would impose the same discipline on an employee without a disability. Bailey v. Department of Defense, No. AT0752000849-1-2, July 18, 2002.

TIMELINESS.  In order for an employee to have time limits waived or extended because of a medical problem, they need not show that they were incapacitated but only that they "suffered from an illness during the filing period that "affected" or "impaired" [their] ability to file timely." Ronald L. Gatlin v. Office of Personnel Management, AT831E000846-M-1, April 5, 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..