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
		JURISDICTION ... PROCEDURAL MISTAKES ... FUTILITY DOCTRINE
		JURISDICTION ... CARTER v. GIBBS OVERRULED
		FAILURE TO OBEY A DIRECT ORDER ... PENALTY ... ANTHRAX VACCINATION
	FLRA DECISIONS
		ARBITRATOR CAN'T ENFORCE AN AGENCY'S SELF-IMPOSED LIMITATION ON ITS RIGHT TO DETERMINE THE AGENCY'S ORGANIZATION
		SECURITY WORK ... PROTECTION AND PRESERVATION OF THE ECONOMIC AND PRODUCTIVE STRENGTH OF THE U.S.
	MSPB DECISIONS
		ATTORNEY FEES/SANCTIONS
		WHISTLEBLOWER PROTECTION ACT ... JURISDICTION

JURISDICTION ... PROCEDURAL MISTAKES ... FUTILITY DOCTRINE. The 10th Circuit dismissed, on the ground it lacked jurisdiction, the agency's petition for review of FLRA's decision to adopt (without precedential significance) an ALJ's holding that the agency committed a ULP when it didn't afford the union an opportunity to be present at a formal discussion concerning the investigation of formal EEO complaints. In the process, it rejected the agency's attempt to excuse its procedural mistakes in filing untimely exceptions to the ALJ's recommended decision by arguing that it would have been futile, given FLRA's precedent, to raise its exceptions. The court, citing the Supreme Court's decision in United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33 (1952), said that "L.A. Tucker stands for the proposition that a party may not consider it to be futile to lodge an objection before an administrative body simply because the body has precedent which contradicts the party's position." Tinker AFB, Oklahoma City Logistics Center, Oklahoma City, Oklahoma v. Federal Labor Relations Authority, No. 01-9528/02-9515 (10th Cir. Nov. 4, 2002).

JURISDICTION ... CARTER v. GIBBS OVERRULED. Relying on the "plain language" of § 7121(a)(1), as amended in 1994, the Federal Circuit abandons the position it took in Carter v. Gibbs, 909 F.2d 1452 (Fed. Cir. 1990), where it had interpreted § 7121(a)(1) as precluding judicial remedies for matters (except for certain specified statutory options) that have not been explicitly excluded from the negotiated grievance procedure. Robert O. Mudge v. United States, No. 02-5024 (Fed. Cir., Oct. 17, 2002).

FAILURE TO OBEY A DIRECT ORDER ... PENALTY ... ANTHRAX VACCINATION. The Navy did not exceed its authority or otherwise abuse its discretion by ordering the appellants to undergo anthrax vaccination. Joseph v. Mazares, Jr. and Michael R. Testman v. Department of Navy, No. 01-337-3338 (Fed. Cir. Sept. 11, 2002).

ARBITRATOR CAN'T ENFORCE AN AGENCY'S SELF-IMPOSED LIMITATION ON ITS RIGHT TO DETERMINE THE AGENCY'S ORGANIZATION. FLRA set aside an award in which the arbitrator enforced an FAA order specifying the supervisory relationships or lines of authority on the midnight shift at certain locations. Since the award affected management's 7106(a)(1) right to determine its organization, and since § 7106(a)(1) rights aren't subject to the "applicable law" exception that applies to § 7106(a)(2) nights, the Authority held that "the FAA Order does not constitute an external limitation on the exercise of the Agency's right to determine the organizational structure of the midnight shift that is enforceable in arbitration." United States Department of Transportation, Federal Aviation Administration and National Air Traffic Controllers Association, 0-AR-3432, November 7, 2002, 58 FLRA No. 43.

SECURITY WORK ... PROTECTION AND PRESERVATION OF THE ECONOMIC AND PRODUCTIVE STRENGTH OF THE U.S. The Authority, noting the absence of precedent, granted in part the agency's application for review of an Acting Regional Director's unit clarification decision in which she rejected the agency's claim that certain SSA employees perform "security work that is directly related to the protection and preservation of the economic and productive strength of the United States." Briefs are to be filed addressing two questions: (1) "Whether, and how, the security work performed by the incumbents involves 'national security' as that phrase is defined in Oak Ridge, 4 FLRA at 655-56." (2) "If the security work performed by the incumbents involves national security, then does it 'directly affect' national security, as that phrase is defined in Oak Ridge, 4 FLRA at 655-56, and, if so, how?" Social Security Administration, Baltimore, Maryland and American Federation of Government Employees, AFL-CIO, WA-RP-90035, November 1, 2002, 58 FLRA No. 42

ATTORNEY FEES/SANCTIONS. An appellant can recover "consultation" fees for a conference with a lawyer even if that attorney is ultimately not retained as the appellant's representative. The Board has the authority to issue sanctions against agency employees for failure to comply with Board orders. Phillip E. Mudrich v. Department of the Navy, MSPB DC-0432-01-0147-X-1, September 20, 2002.

WHISTLEBLOWER PROTECTION ACT ... JURISDICTION. The Board has jurisdiction over an Individual Right of Action (IRA) appeal if (1) the appellant has exhausted his Office of Special Counsel (OSC) remedies and makes non-frivolous allegations that he made a disclosure protected under section 2302(b)(8) and (2) the disclosure was a contributing factor in the agency's decision to take or fail to take a personnel action as defined by 5 U.S.C. § 2302(a). Mark S. Rusin v. Department of the Treasury, MSPB CH-1221-00-0028-W-1, September 4, 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..