Federal Labor Relations Authority Case Law Update

1. Federal Labor Relations Authority Case Law Update 49th NFFE NATIONAL CONVENTION Portland, Oregon October 2, 2012 Peter A. Sutton, Regional Director FLRA Chicago Region

2. 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 on-site 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.

3. 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.

4. 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.

5. 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).

6. 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.

7. 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.

8. 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.

9. 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.

10. 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).

11. 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.

12. 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.

13. 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.

14. 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.

15. 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 itdenied union representatives the opportunity to be represented at the interviews of the excepted service ees. .

16. 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.

17. 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.

18. 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.”

19. 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.