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Dewey Publications Inc.
News and Case Alert
Issue #1-5
In this issue...
New Book Annoucements!
Obama Makes EEO and FLRA Nominations...
Guidance From Former FLRA General counsel Restored to Website
FLRA: Past Practices and Back Pay Awards for Union Representatives...
Dewey's "Best of" Series
MSPB and EEO Law in a Nutshell!

Best of the Board by Peter Broida and Best of the Commission by Ernest Hadley are indispensable guides for all representatives, attorneys, and specialists.

Best of the Board reviews the Board's appellate process and seminal Board and Federal Circuit decisions from 1978 to the present. Topics covered include adverse actions, performance-based cases, reduction-in-force appeals, enforcement petitions, counsel fee determinations, issues of discrimination, harmful error, and prohibited personnel practices, and the Board's functions and adjudication procedures. As a basic reference, Best of the Board provides a comprehensive but concise introduction to the basics of Board operations and case law and is a useful adjunct to A Guide to MSPB Law and Practice.

About the author: Peter Broida is a long time practitioner before the Board, a lecturer on MSPB practice, and an author of comprehensive treatises on the law and procedure of the MSPB.

Best of the Commission explores the development of federal sector EEO law through landmark Commission and US Supreme Court decisions. Subjects discussed include disparate treatment and direct evidence cases, hostile environment harassment litigation, disability discrimination law, and reprisal issues. Used as a basic reference or refresher training on the fundamentals of federal sector EEO law, Best of the Commission is a must have book.

About the author: Ernest Hadley is a longtime practitioner before the EEOC, a lecturer on EEOC practice, and prolific author on EEOC law and practice.
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Send us your comments and topics of interest.

Dear _________,

Welcome to the fifth edition of Dewey's News and Case Alert. As always, Dewey aims to cover the topics you want to read about, and our objective is to tailor the information contained herein to our customers needs. E-mail your topic or case suggestions and comments.

-Dewey Publications Inc.


On July 16, 2009, the President nominated Jacqueline A. Berrien to Chair the Equal Employment Opportunity Commission. Ms. Berrien has an impressive background in civil rights, but no federal sector experience.

Also, on June 4, 2009, President Obama nominated Ernie DuBester as a Member of the FLRA, and Julia A. Clark as the General Counsel of the FLRA. Ms. Clark's nomination is particularly significant in that the Authority has been without a General Counsel for a while now meaning that, although Unfair Labor Practices charges may be filed and investigated, ULP complaints cannot be issued.

All nominees await Senate confirmation.

The Authority recently restored to its website Guidance memos written by the former General Counsel and his staff. These memos, very useful guides on various aspects of FLRA law, were removed from the website a few years ago. The following memos may be of particular interest to our readers:
While a little dated and not binding on the Authority, the memos are still instructive and provide helpful guidance on their respective FLRA topics.
FLRA: Past Practices and Back Pay Awards for Union Representatives
IRS v. NTEU, 63 FLRA No. 61 (March 24, 2009)

The FLRA sustained a backpay award for union representatives who were denied official time for representational duties performed while telecommuting, a custom authorized by past practice.

NTEU filed a grievance alleging violations of the parties' agreement and federal laws and regulations when the agency barred union representatives from using official time while telecommuting. The grievance was not resolved and was submitted to arbitration.

While the new agreement was silent as to official time by telecommuters, the arbitrator found a past practice of union representatives performing representational duties while telecommuting, that the parties' previous agreement formalized this practice, and during negotiations of the new agreement, the agency verbally agreed "to take no action to change the practice." Prior to the effective date of the new agreement, however, the agency advised its time coordinators nationwide to disallow official time by telecommuting union representatives. The arbitrator concluded that the agency's actions violated the parties' oral and written agreements, directed the agency to allow the use of official time by union representatives while telecommuting and awarded back pay, among other remedies.

On exception, the agency argued that the award was contrary to the law regarding telecommuting, specifically the decision in AFGE, National Council of HUD Locals 222, 60 FLRA 311 (2004) (HUD), and contrary to Authority precedent forbidding unlawful or illegal past practices. The Authority disagreed:

As the Authority explained in HUD, § 359 sets forth the statutory basis for an agency to establish a telecommuting program for employees to perform "officially assigned duties at home or [an]other work site . . . ." HUD, 60 FLRA at 313 (quoting H.R. Conf. Rep. No. 106-940, § 359 at 151). Relying on longstanding precedent, which holds that the performance of representational duties does not involve the "work" of an agency, the Authority held that § 359 does not provide authorization for union representatives on official time to telecommute. Id. Applying this same rationale, § 359 also does not prohibit union representatives from using official time while telecommuting because it has no connection to the issue of official time. Id. In recent cases, the Authority has emphasized that neither HUD nor § 359 bars union representatives from using official time while telecommuting. See United States Envtl. Prot. Agency, 63 FLRA 30, 33 (2008) (EPA) ("§ 359 . . . does not prohibit union representatives from performing representational duties on official time from remote locations") (emphasis in original); United States Dep't of Agric., Food Safety & Inspection Serv., 62 FLRA 364, 367 (2008) ("§ 359 . . . does not prohibit union representatives from performing representational duties on official time in their homes"). As the Arbitrator's Initial Award accords with Authority precedent on this matter, we find that the Agency has not established that it is contrary to § 359 or HUD and we deny the Agency's exception. For the same reason, we deny the Agency's exception that the practice of allowing the use of official time while telecommuting is contrary to law. We note, in this regard, that the Agency does not contest the Arbitrator's finding that the parties had a past practice, which they verbally agreed to continue, of allowing Union representatives to use official time while telecommuting.

Rejecting the agency's argument that, with regard to the backpay award, "making employees whole for time used to perform nonduty activities, including representational activities, is contrary to, 5 U.S.C. § 5541, et seq., which governs premium pay for Federal employees" and is tantamount to an award of overtime, the Authority further noted:

In this case, the Arbitrator found that employees who used nonduty time to perform representational activities were entitled to backpay because they were affected by an unjustified or unwarranted personnel action that resulted in a reduction in pay. ... There is no evidence or other basis on which to conclude that the Arbitrator's award of backpay encompassed overtime. Consistent with Rural Development [United States Dep't of Agric., Rural Dev., Wash., D.C., 60 FLRA 527, 529 (2004)], any employee who performed representational duties during nonduty time and who has not been properly compensated for that work is entitled to backpay at the straight-time rate.

Learn more about past practices and remedies before the FLRA with these titles, A Guide to the FLRA Law and Practice by Broida, A Guide to Principles of Federal Sector Arbitration by Broida and Davis, and Federal Labor Arbitration Practice: An Advocate's Guide by Bosland.
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