Slide 1

Report
Federal Labor Relations Authority
Case Law Update
49th NFFE NATIONAL CONVENTION
Portland, Oregon
October 2, 2012
Peter A. Sutton, Regional Director
FLRA Chicago Region
 NAIL v. FLRA, 680 F.3d 839 (D.C. Cir. 2012), aff’g, 65 FLRA
1052(2011).
 Navy negotiated an agreement with its two unions
regarding the allocation of parking spaces at the facility.
Under the agreement, the employees represented by the
two unions received priority over tenant employees
working at the facility.
 When Navy discovered that agreement would result in
certain tenant employees who were represented by a third
union that was not a party to the agreement having no onsite parking, it decided not to implement the agreement.
 No ULP because agreement defined the parking privileges
of employees in another bargaining unit and was thus
contrary to law.
 Soc. Sec. Adm., ODAR, 66 FLRA 787(2012).
 Agency attorney handling arbitration case for agency
negotiated a settlement of the grievance with the
Union.
 Agency later refused to sign and implement the
grievance settlement claiming its attorney lacked
authority to settle the case.
 No ULP because Agency attorney did not have actual or
apparent authority to settle the case.
 FDIC, SF Region, 65 FLRA 102 (2010)(Chairman Pope
concurring in part).
 BEP, 53 FLRA 146 reconstruction requirement for
arbitration remedies eliminated.
 Arbitrators have broad discretion to fashion remedies
for meritorious grievances and the Statute gives
deference to arbitrator’s choice of remedies.
 Standard is whether arbitrator’s award is reasonably
related to the contract violation and the harm being
remedied.
 EPA, 65 FLRA 113(2010)(Member Beck concurring).
 Excessive interference standard eliminated for
arbitration review of awards enforcing appropriate
arrangements provisions.
 Awards now will be evaluated under the abrogation
(waiver) standard set forth in Customs Service, 37 FLRA
309 (1990).
 Bureau of Public Debt, 65 FLRA 509
(2011)(Member Beck dissenting).
 Abrogation standard will applied on review of agency
head disapprovals of appropriate arrangements
provisions.
 Excessive interference test continues to apply in
negotiability cases involving proposals that have not
yet been agreed to.
 Provisions at issue in Public Debt, 65 FLRA 509.
 Performance expectations must be communicated in
writing to employees on details before they can be
held accountable.
 In cases of suspected leave abuse, agency must first
counsel the employee before issuing a leave
restriction letter.
 U.S. Dept. of the Air Force v. FLRA, 680 F.3d 826 (D.C.
Cir. 2012), aff’g, 65 FLRA 911 (2011).
 RIF Proposals at issue:
A. If agency determines a CS unit employee will be displaced by RIF and a
VRA unit employee with less seniority occupies a similar position, agency
will convert VRA position to a term appointment that expires before RIF
effective date.
B. Agency will only fill new positions with VRA appointees if position would
not be affected by the RIF.
 Proposal A is negotiable because it does not restrict agency’s right to
conduct a RIF, or limit the agency’s discretion to decided which positions
to cut. Proposal only took effect after agency had made its RIF
determinations.
 Proposal B is a negotiable appropriate arrangement because it does not
excessively interfere with management’s right.
 AFGE Local 3928, 66 FLRA 175 (2011)(Member Beck
dissenting).
 Agency employees are organized into teams consisting of 1
supervisor and 8-10 employees. A division consists of
several teams and has 40-50 employees. Agency decided to
realign and announced employees would select seating
assignments only from the seats assigned to the their team.
 Union proposed that employees select seating according to
their seniority within their assigned division rather than
assigned team.
 Agency did not demonstrate how locating employees by
teams is directly and integrally related to its mission or how
proposal affects it right to determine its administrative and
functional structure.
 EPA, Region 7, Kansas City and AFGE Local 907, Case Nos.
12 FSIP 79 & 81 (June 6, 2012).
 Mediation-arbitration proceeding over whether 38 staff
attorneys should have private offices and the size of their
work space at a new location.
 Agency proposed each staff attorney will have 80 square feet
and depending on nature of their work either a work station
with panels 7 feet high (15 attorneys) or 4 feet high (23
attorneys).
 Union proposed the each staff attorney get a 96 square foot
private office.
 Resolution: Agency to provide each staff attorney with 80
square feet and a work station with the 7 foot panels (called
the DIRTT).
 HHS, FDA, Center for Veterinary Medicine and NTEU
Chapter 282, Case No. 12 FSIP 27 (May 4, 2012).
 Impasse over office selection procedure for unit employees
assigned to agency’s Metro North Park facility.
 Union proposed that parties follow their May 2010 MOU
addressing office selection procedures at agency’s White Oak
facility. The White OAK MOU assigned offices by seniority.
 Agency proposed that parties use a different formula that
favored grade over seniority.
 FSIP directed parties to apply White Oak MOU for the Metro
North Park facility as agency did not show cause why White
Oak MOU should not be imposed.
 Social Security Admin., Baltimore, Md., 66 FLRA 569
(2012) (Member DuBester dissenting in part).
 Arbitrator found agency violated Statute and CBA by
unilaterally implementing new electronic application system
for internal vacancies.
 FLRA set aside the Statutory violation finding that CBA’s
Merit Promotion Plan article covered the matter. “A
reasonable reader would … conclude that Article 26 settles
the matters of how employees apply for positions…”
 FLRA upheld the contract violation and remedy which
directed agency to repost current vacancies and accept
paper applications.
 U.S. Dep’t of the Air Force, Luke AFB, 66 FLRA 159
(2011).
 Agency violated Statute by refusing to bargain over
union proposals on procedures for assignment of
mechanics in the engine shop. Agency claimed matter
was covered by the CBA, an MOU, and an Agency
Manual.
 CBA articles simply referred to management’s rights.
 The MOU addressed the competitive procedures for
filling vacancies—an entirely different subject.
 The Manual was an Agency issued document and was
not a bargained agreement.
 NTEU, 66 FLRA 577(2012), appeal filed, No. 12-1234
(D.C. Cir.)
 Arbitrator found that agency violated the Statute and CBA
by not providing the union with notice and an opportunity
to bargain over an increase in workload.
 FLRA set aside the Statutory violation finding because
record did not show that the increase in workload was a
change in a policy, practice, or procedure affecting unit
employees’ conditions of employment.
 FLRA upheld contract violation and remedy that directed
agency to bargain with the union.
 NTEU, 66 FLRA 506 (2012), appeal filed, No. 12-1199
(D.C. Cir.).
 Arbitrator found that IRS did not violate §7114(a)(2)(B) when it did
not allow union representatives the opportunity to attend OPM
background interviews of new competitive and excepted service ees.
 FLRA found that when interviewing competitive service ees, who
are subject to OPM suitability determinations, investigators are
legally independent and therefore NOT IRS representatives.
 FLRA further found that when interviewing excepted service ees,
who are not subject to OPM suitability determinations, investigators
are “acting under the [IRS’s] authority” and ARE IRS representatives.
 Thus IRS violated §7114(a)(2)(B) when it denied union
representatives the opportunity to be represented at the interviews
of the excepted service ees.
.
 DHS, Customs and Border Prot., 66 FLRA 892(2012).
 FLRA found that Union proposal to extend CBA’s
procedural protections concerning Weingarten
interviews to DHS-OIG investigations was negotiable.
 FLRA respectfully disagrees with NRC v. FLRA, 25 F.3d 229
(4th Cir. 1994) (NRC) which found no duty to bargain over
any OIG investigative procedures. Instead, FLRA will
assess whether proposal is contrary to specific terms of
the IG Act.
 Agency did not meet its regulatory burden to
demonstrate that proposal was contrary to the IG Act.
 U.S. DOJ, Fed. Bureau of Prisons, Fed. Corr.
Complex, Tucson, Ariz., 66 FLRA 517 (2012).
 Arbitrator found that agency violated CBA by failing to
deduct union members’ dental allotments from their pay
and ordered agency to reimburse union for missed
payments.
 Agency appealed arguing the reimbursement remedy
violated sovereign immunity doctrine.
 FLRA found remedy was an equitable monetary award
which is not barred by sovereign immunity.
 Alternatively, sovereign immunity doesn’t apply
because the remedy concerns employee funds (payroll
allotments) not agency funds.
 Dep’t of the Treasury, IRS Atlanta, 66 FLRA 295
(2011) (Chairman Pope dissenting in part).
 Arbitrator held that Agency violated Statute and CBA when it
discontinued inviting Union to weekly team meetings.
Ordered SQA and posting.
 Agency excepted only to remedy on essence, exceeds
authority, and contrary to law grounds.
 FLRA dismissed under § 2429.5. “…no indication that the
Agency ever argued to the Arbitrator … that a status quo ante
remedy would fail to draw its essence from the agreement,
exceed the Arbitrator’s authority, or be contrary to law.”
 AFGE Local 1164, 66 FLRA 74 (2011).
 Arbitrator upheld Agency’s reprimand of Union official who
attached to a grievance unsanitized Privacy Act-covered
documents.
 Union filed exceptions arguing award violates the Statute.
 FLRA denies exceptions. Arbitrator properly found that Union
official’s disclosure of the documents violated the Privacy
Act.
 Because Union official made an unlawful Privacy Act
disclosure, his conduct exceeds the bounds of protected
activity.

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