SOLE AND EXCLUSIVE DISCRETION CONFERRED BY GOVERNMENT-WIDE REGULATIONS. The Authority (Member Pope dissenting in part) held that 11 of 12 disapproved provisions (some of which had been ordered by FSIP) dealing with financial disclosure determinations were outside the duty to bargain because inconsistent with the Government-wide regulations of the Office of Government Ethics (OGE). In reaching its conclusions, the Authority deferred to OGE's interpretation of its regulations as giving agencies sole and exclusive discretion to make the determinations required by OGE's regulations, thus barring collective bargaining over the exercise of that discretion. It announced that the Authority's contrary conclusion in POPA II, 53 FLRA at 655-56, will no longer be followed. Patent Office Professional Association and Patent and Trademark Office, 0-NG-2613, September 30, 2003, 59 FLRA No. 50.

PERSONNEL WORK. The Authority, disagreeing with the Regional Director, held that "§7112(b)(3) excludes all employees performing personnel work, in other than a purely clerical capacity, concerning other employees of the same agency irrespective of whether those other employees are included in the bargaining unit at issue." Although noting that several agencies submitted briefs arguing that employees performing non-clerical personnel work for any agency in the Government should be excluded from bargaining units, FLRA did not address this issue because its resolution "is not necessary to decide this case[.]" Department of the Army, North Central Civilian Personnel Operation Center, Rock Island, Illinois and American Federation of Government Employees, Local 15, AFL-CIO, CH-RP-01-0033, September 30, 59 FLRA No. 45.

SECURITY WORK ... SECURITY SYSTEMS DIRECTLY RELATED TO THE PROTECTION AND PRESERVATION OF THE ECONOMIC AND PRODUCTIVE STRENGTH OF THE U.S. In a split decision, FLRA reversed the Regional Director and found that incumbents of the disputed Physical Security Specialist (PSS) and Electronics Technician (ET) positions are engaged in §7112(b)(6) security work directly affecting national security and are therefore excluded from the bargaining unit. "[T]he incumbents of the two PSS positions and the ET position perform work that involves the design, analyzing or monitoring of security systems for the security of, and access to, SSA's databases and physical facilities, and that these systems are directly related to the protection of the economic and productive strength of the Nation, including the security of the Government from sabotage, particularly its databases and physical facilities. . . " [Emphasis added.] Social Security Administration, Baltimore, MD and American Federation of Government Employees, WA-RP-90035, September 12, 2003, 59 FLRA No. 26.

WAIVER OF 2ND PRONG OF "COVERED BY" DOCTRINE IS A PERMISSIVE SUBJECT. In a split decision, FLRA held that the agency could elect not to bargain on union proposals having the effect of limiting the "covered by" doctrine only to matters specifically addressed in existing agreements. Member Pope dissented: Since she didn't view the "covered by" doctrine as being linked to any unilateral right under the LMR statute, she would have found the proposals a mandatory subject of bargaining. National Treasury Employees Union and U.S. Customs Service, Washington, DC, 0-NG-2637, September 25, 2003, 59 FLRA No. 35.

ELECTION OF FORUM ... DIFFERENT LEGAL THEORIES. FLRA turned down the agency's claim that an arbitration award sustaining in part a union grievance challenging the agency's refusal to schedule certain cases for arbitration, violated §7116(d)'s ban on two bites at the apple, because the union had earlier filed a ULP charge (subsequently dismissed by the Regional Director) on the same matter. Although the factual predicate of the grievance was the same as the factual predicate of the ULP, the legal theories were different. "[T]he Authority has drawn a clear distinction between legal theories supporting allegations of statutory violations and allegations of contract violations, finding that the theories are not substantially similar for purposes of §7116(d)." Department of Labor and American Federation of Government Employees, Local 12, 0-AR-3436, September 5, 2003, 59 FLRA No. 21.

PROBATIONARY PERIOD ... WAIVER OF RIGHTS. Just as the Federal Circuit has held that an employee may waive his statutory right to appeal an action in a last-chance settlement agreement (see McCall v. US Postal Service, 839 F.2d 664 (Fed. Cir. 1988)), likewise an individual may waive any right to appeal when he accepts a position subject to a probationary period. James Ramos v. Department of Justice, SF-315H-01-0499-I-1, September 30, 2003.

DISCRIMINATION ... REASSIGNMENT WITHOUT INTERACTIVE PROCESS. The agency subjected the complainant to disability discrimination when it reassigned her to another facility without engaging in the required interactive process to determine whether her condition could be accommodated in her present position. Coe v. US Postal Service, Equal Employment Opportunity Commission, Appeal No. 01A20972, August 12, 2003.