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Dewey Publications Inc.
News and Case Alert
Issue #10-3
TABLE OF CONTENTS

American Civil Service Law Series
2018

A Guide to Merit Systems Protection Board Law and Practice
By: Broida

IN-STOCK


A Guide to Federal Labor Relations Authority Law and Practice
By: Broida

PRE-ORDER

A Guide to Federal Sector Equal Employment Law and Practice
By: Hadley

PRE-ORDER

MSPB Case Summaries
By: Broida & Davis

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Security Clearance
Law and Procedure
Security Clearance Law and Procedure
By: Fitch & Kuntz
Price: $225.00
Sku: 18SCLP
Edition: 4th/2018
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MSPB Charges & Penalties
MSPB Charges and Penalties
By: Fowler & Vitaro
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Consolidated Federal Sector EEO Update 2004-2018
Consolidated Federal Sector EEO Update 2004-2018
By: Gilbert & Sumner
Price: $250.00
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Edition: 9th/2018
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DOCTRINAL SWINGS AT FLRA

New FLRA members and new decisional trends-not favoring enhanced bargaining and trending to less deference to arbitrators' awards.


MID-TERM CHANGES

Consider first bargaining obligations resulting from mid-term changes.

5 USC 7103(a)(12) tells us that collective bargaining involves negotiations of conditions of employment affecting employees. Subsection (a)(14) defines conditions of employment to include personnel policies, practices and matters affecting working conditions.

Are working conditions different from conditions of employment? In DHS, C&BP and AFGE Local 1929, 70 FLRA 501 (2018) (Member DuBester dissenting), involving an arbitrator's award stating management improperly failed to bargain an alteration in work routines, the Authority said that because the terms "conditions of employment" and "working conditions" are used in the same definitional paragraph, they have to be different, although it is hard to say from the Authority's decision what that difference happens to be. The Authority's result-there was no duty to negotiate-depended on analysis of precedent identifying when a change in workload is negotiable. The result could also as readily have been justified under the "de minimis" doctrine. Having creating a semantic riddle, the Authority should have provided the answer. The National Labor Relations Act speaks to negotiation of "rates of pay, wages, hours of employment, or other conditions of employment," with no mention of working conditions. The language in the FSLMRA is redundant, but the phrasing suggests no material distinction between the terms, a point made by Member DuBester.


PROCEDURAL ARBITRABILITY DISPUTES AND THE "ESSENCE" EXCEPTION

Reviewing an arbitration award resolving an arbitrability issue in favor of the union--a dispute over a contract limit on the time for an FMCS panel request-SBA and AFGE Local 3841, 70 FLRA 525 (2018) (Member DuBester concurring in part and dissenting in part), reversed prior doctrine and announced that the "essence" exception may challenge an award that resolves a procedural arbitrability issue. In short, if a procedural provision is unambiguous, the Authority expects the arbitrator to enforce the provision as written. In SBA, the Authority also stated that past practice may not be applied by an arbitrator to override clear contract language. Expect greater scrutiny by the Authority of arbitration awards involving procedural disputes.


ULP/GRIEVANCE ELECTIONS

Clarifying or modifying the law governing elections of remedies to prevent duplicative contract and ULP charges over failures to bargain changes in employment conditions, Dept. of Navy, Navy Region Mid-Atlantic and IBPO Local 800, 70 FLRA 512 (2018) (Member DuBester dissenting), considered whether the earlier-filed ULP "issues are nonetheless substantially similar to the alleged violation of the parties' agreement," whether the grievance presents a contract claim "derived from the statutory claim raised in its unsuccessful ULP charges," or both filings involve "the same basic issue." The Authority's intent is to avoid duplicative filings across both grievance and ULP processes for a failure to bargain and its consequences.


HOLD THE PRESS

By request of the author, we alert readers that FLRA is now issuing decisions redirecting the law, reflecting changes in Authority membership. We are holding off our ordinary publication date for a couple of weeks to capture as many new decisions as possible in A Guide to Federal Labor Relations Authority Law and Practice, 2018

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