Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.

EXECUTIVE ORDER DELEGATING TO FLRA AUTHORITY TO REMOVE FSIP MEMBERS

On November 12, 2019, President Trump issued a Presidential Memorandum on the "Delegation of Removal Authority Over the Federal Service Impasses Panel," delegating to FLRA the power under 5 USC 7119Ic) to remove the chairman and other FSIP members appointed by the President under 5 USC 7119(c)(2). The criteria for removal were stated to include whether FSIP members' decisions are consistent with an "effective and efficient Government", and "any other factors that the FLRA may consider appropriate." FLRA is required to report to the President the reasons for its actions.

Why was this done? What due process is there for FSIP members? Do they get a hearing? Is there any judicial review? Is the president's statutory authority delegable to what is constituted as an independent federal agency? These questions may be answered in the fullness of time.

INFORMATION REQUESTS UNION PREVAILS

VAMC Decatur and NFFE Local 2102, 71 FLRA 428 (Nov. 26, 2019), a ULP decision, found the VA on the losing end of a complaint by the FLRA GC when the agency failed to provide sufficiently specific information on the results of an agency investigation into bargaining unit members' complaints to VA officials that managers were engaged in fraud and intimidation as to a program designed to benefit homeless veterans. One or more managers were disciplined, but the agency declined to provide specifics in response to the Union's information request. Privacy interests did not excuse the lapses in the VA's response to that request.

Rejecting as and excuse repeated requests by management to the Union for greater specificity in its requests, FLRA explained:

In many cases, a union will not be aware of the contents of a requested document, and the degree of specificity required of a union must take that into account. . . . We reject the argument that a union has failed to articulate its need with requisite specificity, where, as here, the information request referenced a specific agency action and specified that the union needed the information to assess: (1) whether the agency violated established policies, and (2) whether to file a grievance, even though the union did not explain exactly how the information would enable it to determine whether to file a grievance. The Authority has emphasized that such information is necessary because arbitration can function properly only when the grievance procedures leading to it are able to sift out unmeritorious grievances.

As to privacy interests:

[C]onsidering the nature and scope of the wrongdoing at issue, as well as the fact that the disciplined employees were management officials, we discern no error in the Judge's finding that identification of those individuals would "further the public interest in ensuring that 'disciplinary measures imposed are adequate, and that those who are accountable are dealt with in an appropriate manner.'" The Agency's bare assertion that it "took appropriate discipline against the managers who were recommended discipline" is insufficient to serve that purpose.

D.C. CIRCUIT LAMPOONS FLRA NEGOTIABILITY DECISION

Want a break from the tedium of FLRA decisions (we cannot include MSPB decisions, since there are none) and verbose texts on civil service law in minuscule type?

Read NTEU v. FLRA, D.C. Cir. 18-1250 (D.C. Cir. Nov. 22, 2019), in which the court unpacks the "haphazardly comma'd" dispositive sentence of the FLRA decision, rejects as "flatly wrong" the Authority's analysis of a GSA Travel Regulation, and sends the case back for more work by the Authority (and likely the parties to the negotiability dispute). Application of common sense to federal sector labor relations is rare. That's why the decision is worth reading, and it is written with style and wit.