Significant Cases

COURT DECISIONS
	FORMAL DISCUSSION ... MEDIATION OF FORMAL EEO COMPLAINT
FLRA DECISIONS
	CONTRACTING OUT ... RIGHT TO RETAIN EMPLOYEES
	REIMBURSEMENT FOR EXPENSES DUE TO CANCELED LEAVE
	"COVERED BY" ... I&I BARGAINING ... EXPIRED AGREEMENT
MSPB DECISIONS
	SEX DISCRIMINATION…SETTLEMENT AGREEMENTS
	ATTORNEY FEES

FORMAL DISCUSSION ... MEDIATION OF FORMAL EEO COMPLAINT. The D.C., reaffirmed its view that § 7103(a)(9)'s broad definition of "grievance" encompasses both complaints filed under the negotiated grievance procedure and those filed under alternative statutory procedures. It did not find, in the case at bar, a direct conflict between the "formal discussion" rights of the union under § 7114(a)(2)(A) and the rights of an employee victim of discrimination, given that there was no evidence that the employee objected to union presence at the mediation proceeding. But it added that "[w]e do not foreclose the possibility that an employee's objection to union presence could create a 'direct' conflict that should be resolved in favor of the employee as described in footnote 12 of NTEU. 774 F.2d at 1189, n. 12. As there is no conflict present in the case before us, the FLRA's construction is permissible." Department of the Air Force, 436th Airlift Wing, Dover Air Force Base v. Federal Labor Relations Authority, No. 01-1373 (D.C. Cir. January 17, 2003). Review of 57 FLRA No. 65.

CONTRACTING OUT ... RIGHT TO RETAIN EMPLOYEES . 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.

REIMBURSEMENT FOR EXPENSES DUE TO CANCELED LEAVE FLRA again--but for different reasons than it did in 56 FLRA No. 57--found nonnegotiable a disapproved provision requiring the agency to reimburse employees for certain losses of funds (e.g., for airline, theater and sporting event tickets) resulting from the agency's cancellation of previously approved leave. Association of Civilian Technicians, Puerto Rico Army Chapter and National Guard Bureau, Puerto Rico National Guard, San Juan, Puerto Rico, 0-NG-2519, January 24, 2003, 58 FLRA No. 75.

"COVERED BY" ... I&I BARGAINING ... EXPIRED AGREEMENT In a split decision (Member Pope dissenting), the Authority dismissed a complaint alleging that the activity committed a ULP when it refused to bargain over the impact and implementation of its decision to temporarily reassign two employees to different offices. It agreed with the ALJ that a provision on details in the expired agreement qualified as a "covered by" exception to the duty to bargain. "[T]he terms and conditions of employment affecting the mandatory subject of details established by the contract provisions continued after the expiration of the contract. In these circumstances, the Respondent could rely on a contractual 'covered by' defense to the same extent that it could during the term of the agreement." United States Border Patrol, Livermore Sector, Dublin, California and American Federation of Government Employees, National Border Patrol Council, Local 2730, AFL-CIO, SF-CA-00599, December 18, 2002, 58 FLRA No. 56.

SEX DISCRIMINATION…SETTLEMENT AGREEMENTS. In considering whether a penalty imposed was discriminatory, the similarity of comparative employees' conduct is controlling, rather that the charges the agency chose to bring against the employees. Spahn v. Dept. of Justice, 93 MSPR 195 (Jan 9, 2003).

ATTORNEY FEES. The appellant is not the "prevailing party" for an award of attorney fees when the administrative judge dismisses the appeal as moot. Carmen I. Mulero-Echevarria v. OPM, No. NY-844E-00-0340-A-1 (December 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..