JURISDICTION ... CIVILIAN TECHNICIANS

     FOURTH AMENDMENT

     PRIVACY ACT ... MEDICAL INFORMATION

     ORAL AGREEMENT ... § 7106(b) PROVISION ... SHIFT ASSIGNMENTS

     FLEXIPLACE ... NO EMERGENCY

     REASONABLE ACCOMMODATION ... DOCTOR'S RECOMMENDATION

     FORMAL DISCUSSIONS ... MEDIATION OF FORMAL EEO COMPLAINT ... CONFIDENTIALITY AGREEMENTS

     FILLING VACANCY ... EXCEED AUTHORITY ... IMPROPER REMEDY

     MSPB JURISDICTION ... INVALID ELECTION

     ALJs ... CONSTRUCTIVE REMOVALS ... MSPB JURISDICTION

JURISDICTION ... CIVILIAN TECHNICIANS. The 5th Circuit held that not only are civilian technicians Federal employees by virtue of the National Guard Technicians Act, but "that the AG [Adjutant General]--as an employer of these federal employees--along with the MSNG [Mississippi National Guard] and MSANG [Mississippi Army National Guard], which organizations operate under the AG's authority and direction, are federal executive agencies for the purpose of FSLMRA [Federal Service Labor-Management Relations Act], and consequently are subject to the jurisdiction of the FLRA." Major General James H. Lipscomb III, et al. v. FLRA, et al., No. 02-60060 (5th Cir. June 24, 2003).

FOURTH AMENDMENT. The Federal Circuit holds that it was unreasonable under the Fourth Amendment to search an employee's car based solely on an anonymous tip. Derrick A. Wiley v. Department of Justice, No. 02-3044 (Fed. Cir. May 12, 2003).

PRIVACY ACT ... MEDICAL INFORMATION. FLRA turned down union exceptions to an award in which the arbitrator held that 5 U.S.C. § 552a(b)(1) and (8) sanctioned the agency physician's disclosure of medical information to the grievant's physician, where the former needed to know why a discrepancy existed between his assessment of the grievant's condition and that of the grievant's personal physician. The Privacy Act exception was dismissed because the union neither alleged nor demonstrated that the release of the information had an adverse effect on the grievant. American Federation of Government Employees, Local 1592 and Department of the Air Force, Ogden Air Logistics Center, Hill AFB, Utah, 0-AR-3560, June 9, 2003, 58 FLRA No. 145.

ORAL AGREEMENT ... § 7106(b) PROVISION ... SHIFT ASSIGNMENTS. FLRA set aside an award in which the arbitrator awarded overtime pay to two grievants after finding that the agency, in assigning a military guard to cover two vacant shifts, had violated an oral agreement requiring that half of vacant guard shifts be assigned to civilian guards on overtime and half to a military guard. The award didn't satisfy prong I of the BEP framework because there was no basis in the record for finding that the oral agreement, as interpreted by the arbitrator, was negotiated under § 7106(b). Department of the Navy, Naval Computer and Telecommunications Area Master Station, Atlantic Detachment Cutler, Cutler, Maine and American Federation of Government Employees, Local 2635, 0-AR-3603, June 4, 2003, 58 FLRA No. 140.

FLEXIPLACE ... NO EMERGENCY. FLRA turned down the agency's exceptions to an award in which the arbitrator rejected the agency's claim that the agency's suspension of a flexiplace program was protected by its § 7106(a)(2)(D) right to take whatever actions necessary to carry out the agency's mission in emergencies. The agency's increasingly heavy workload did not rise to the level of an emergency within the meaning of § 7106(a)(2)(D). Department of Veterans Affairs, VA Regional Office, St. Petersburg, Florida and American Federation of Government Employees, Local 1594, 0-AR-3582, May 16, 2003, 58 FLRA No. 133.

REASONABLE ACCOMMODATION ... DOCTOR'S RECOMMENDATION. An award in which the arbitrator found that the agency failed to reasonably accommodate the grievant's disability was set aside. FLRA said that "[e]ven if the Agency did not provide the accommodation suggested by the doctor, this would not establish that the grievant was unable to perform the essential functions of her job with the accommodation, or that the accommodation was otherwise unreasonable." Department of the Treasury, Internal Revenue Service, Austin Service Center and National Treasury Employees Union, Chapter 72, 0-AR-3486, May 16, 2003, 58 FLRA No. 132.

FORMAL DISCUSSIONS ... MEDIATION OF FORMAL EEO COMPLAINT ... CONFIDENTIALITY AGREEMENTS. In a split decision (Chairman Cabaniss dissenting) involving a stipulated case, FLRA found that the agency committed a formal discussion ULP when it didn't notify the union and afford it an opportunity to be present at mediated meetings that resulted in a settlement agreement. In his concurring opinion, Member Armendariz said that he expected union representatives to sign confidentiality agreements covering the mediation of EEO complaints. Department of the Air Force, Luke AFB, Arizona and American Federation of Government Employees, Local 1547, AFL-CIO, DE-CA-00309, May 15, 2003, 58 FLRA No. 131.

FILLING VACANCY ... EXCEED AUTHORITY ... IMPROPER REMEDY. Although the arbitrator found there was no evidence that the selection was tainted or that the selectee received preferential treatment (and thus let the selection stand), he found that the agency violated its Diversity Action Plan (DAP) by failing to interview qualified candidates for the position and awarded the union $10,000 for this violation. The Authority (member Pope dissenting) found that the arbitrator had exceeded his authority when, after finding that the selection wasn't defective, he went on to find a violation of the DAP, and set aside the award. Member Pope found that the arbitrator didn't exceed his authority, but concluded the remedy for violating the DAP was contrary to law (an issue the majority found unnecessary to address) because there was no statutory authorization for such an award. Environmental Protection Agency, Chicago, Illinois and American Federation of Government Employees, Local 704, 0-AR-3522, April 25, 2003, 58 FLRA No. 122.

MSPB JURISDICTION ... INVALID ELECTION. The union filed a grievance on behalf of the appellant after the agency had decided to remove him, but before the effective date of the removal. The appellant later filed an appeal with the Board after the effective date of the removal, challenging the severity of the penalty and alleging that the agency had discriminated against him on the basis of race, sex, and age. Although the AJ, noting that a grievance had been filed before the appeal, dismissed the appeal for lack of jurisdiction, the Board reversed, noting that "[n]o election under 7121(d) or (e) can occur before the effective date of the appealable action." Daryl S. Jackson v. Department of the Army, CH-072-02-0217-1-1 (July 1, 2003).

ALJs ... CONSTRUCTIVE REMOVALS ... MSPB JURISDICTION. The Merit Systems Protection Board overturns its case law and holds that an administrative law judge cannot be constructively removed from a position unless the judge is actually taken out of the position. Tunik v. SSA, CB7521000020-T-1, June 27, 2003.