JURISDICTION ... HEARINGS ... WHISTLEBLOWING. The Federal Circuit reaffirms that an appellant is entitled to a hearing before the Merit Systems Protection Board (MSPB) only after jurisdiction before MSPB has been established. Spencer v. Navy, No. 02-3344 (Fed. Cir. May 6, 2003).

ADEQUACY OF NOTICE ... BARGAINING WAIVER. The D.C. Circuit upheld the Authority's decision in Customs Service, 57 FLRA No. 151, where FLRA set aside an arbitration award and held, contrary to the arbitrator, that the union received adequate notice of a proposed change in working conditions and waived its right to bargain over the change when it failed to request negotiations. Although the court found "compelling" the union's contention that FLRA erred in finding a bargaining waiver where the union had filed a grievance after receiving notice of the proposed change, the court said it had no authority to consider that argument because it never was raised before the Authority. National Treasury Employees Union, Chapter 161 v. Federal Labor Relations Authority, No. 02-1153 (D.C. Cir. April 25, 2003.)

JURISDICTION ... APPEAL RIGHTS. The MSPB has jurisdiction when an employee meets the definition of "employee" provided by 5 U.S.C. 7511(a) (1) (I) or (ii). Ann M. McCormick v. Department of the Air Force, No. 02-3031 (Fed. Cir. Oct. 4, 2002).

COMPRESSED SCHEDULE ESTABLISHED BY PAST PRACTICE ... HOLIDAY HOURS. FLRA turned down exceptions to an award in which the arbitrator, after finding that the parties had established, by past practice, a compressed work schedule for unit employees, held that the agency violated law, regulation, and the parties' agreement by paying employees working on compressed schedules for only 8 hours of work on holidays. "We find the Agency's claim that, under 5 U.S.C. § 6130, compressed work schedules can only exist in collective bargaining units through negotiation to be unavailing." American Federation of Government Employees, Local 2128 and U.S. Department of Defense, Defense Contract Management Agency, District West, Hurst, Texas, 0-AR-2003, May 6, 2003, 58 FLRA No. 129.

NAMING UNIT EMPLOYEES TO COMMITTEES AND TRAINING SESSIONS. A proposal allowing the union to select unit employees to attend training sessions and to serve on committees, be they curriculum development committees or committees involving personnel policies, is outside the duty to bargain because it affects management's rights. Although that portion of the proposal dealing with curriculum development committees is a permissive subject of bargaining under § 7106(b)(1), given that the union did not make a request for severance of the proposal as permitted by 5 CFR 2424.2(h), FLRA had to conclude that the proposal is outside the duty to bargain in its entirety. Federal Education Association, Stateside Region and U.S. Department of Defense, Education Activity, Pensacola, Florida, 0-NG-2603, April 11, 2003, 58 FLRA No. 113.

PERFORMANCE RATING ... DEFICIENT REMEDIES ... BEP PRONG II RECONSTRUCTION. Although FLRA affirms an arbitrator's cancellation of a disputed performance rating because the arbitrator had found violations of a negotiated regulation, it sets aside the remedies (extending grievant's prior appraisal under a different rating system and approving training) because they did not satisfying Prong II of the BEP test--i.e., they did not constitute a reconstruction of what management would have done had it provided effective feedback at the midyear review and had the senior rater not attended the performance review. The agency is instead ordered to reevaluate the grievant in accordance with the regulation. Department of the Army, Army Aviation and Missile Command, Redstone Arsenal, Alabama and American Federation of Government Employees, Local 1858, 0-AR-3492, March 31, 2003, 58 FLRA No. 97.

PERFORMANCE-BASED ACTIONS ... PERFORMANCE STANDARDS. The Merit Systems Protection Board (MSPB) found the agency properly removed the appellant for failing to complete the majority of the projects assigned to her, holding that an absolute performance standard may be valid where the employee is aware the standard is not applied in an absolute manner. Cynthia A. Guillebeau v. Department of Navy, AT-0432-00-0542-I-2, March 28, 2003.