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NEWS AND CASE ALERT
May 11th, 2021 | Issue #13-04
TABLE OF CONTENTS
FLRA AGAIN ATTEMPTS TO DISTINGUISH OR DEFINE WORKING CONDITIONS AND CONDITIONS OF EMPLOYMENT
In Memoriam
Ernest C. Hadley
New 2021 Dewey Books
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.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email.

FLRA AGAIN ATTEMPTS TO DISTINGUISH OR DEFINE WORKING CONDITIONS AND CONDITIONS OF EMPLOYMENT
An arbitrator decided the agency breached a provision of the contract requiring it to notify the union and offer an opportunity to bargain over changes in matters affecting conditions of employment. Without notice, the agency canceled a health services contract that established health units at agency facilities for use by employees for specified purposes. The arbitrator directed the agency to restore the contract to provide health service units. On exceptions by the agency, FLRA overruled precedent and determined that the decision to stop providing access to health service units did not affect the circumstances of employee’s daily job performance and, as a result, was not a change requiring notice and bargaining. Concurring with the result reached by the majority, Member Abbott suggested that the availability of the health units was a convenience, not a condition of employment. Dissenting, Chairman DuBester argued:
Sorting through the debris of the majority’s decision, it remains to be seen precisely what type of change would satisfy its new test. What is clear, however, is that the majority has yet to provide a plausible rationale for discarding our long-standing precedent governing this matter. . . . And given the absence of any such rationale, it is not surprising that the majority struggles mightily to explain why the Agency’s elimination of the health service units did not affect the employees’ working conditions.
. . .
My colleague also concludes that the parties should be precluded from bargaining over the provision of on-site health care services because taxpayers should not be asked to fund these services, and because providing these services erodes the Agency’s ability to efficiently manage its resources. At the outset, my colleague’s argument fails to take into account that providing these services to employees arguably promotes efficiency by reducing the amount of time they must spend away from work to obtain the same services. And by making these services readily available, agencies can reduce absences due to illness, thereby obviating the need for employees to use their paid sick leave in the first place.
But more fundamentally, my colleague fails to realize that his concern regarding the efficacy of providing these services is precisely the type of issue that an agency can raise during collective bargaining with the exclusive representative. By removing this issue from the scope of bargaining under our Statute, today’s decision prevents this process from happening based solely on the majority’s own perception of what is in the Agency’s best interest.
OK. But we, the extensive editorial staff at the Case Alert, don’t get it. Healthcare benefits and plans have been forever negotiable, with the possible exception of benefits for retirees. See Allied Chemical Workers V. Pittsburgh Glass, 404 U.S. 157 (1971). An applicant for employment with a health condition needing occasional, speedy monitoring or treatment might well select an employer, including the NLRB, based on availability of an on-site health unit. FLRA’s decision was short on the factual description of the operation of NLRB’s health units, but surely the availability of some level of immediate medical attention affects well-being of employees and their ability safely to perform work. Since the refusal-to-bargain may well have sufficiently implicated a ULP charge, it may well be that the NLRBU will be pursuing this case into court.
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2020. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. Major topics include the nature of arbitration, the collective bargaining agreement, arbitrability, grievances, hearings, management rights, contract interpretation, common substantive arbitration topics, settlement, remedies, counsel fee and damages.

By: Broida & Davis
Edition: 12th/2021
This encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2021 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically. Major topics include adverse and performance actions, arbitration/collective bargaining issues, attorney fees, Board procedure, jurisdiction and judicial review, defenses, discrimination, evidence, harmful error, hearings, mitigation, PPPs, retirement, reemployment, remedies, RIFs, settlements, substantive offenses, timeliness, USERRA and VEOA.
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A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2020 and a chart of significant awards. Major topics include equitable and compensatory damages, proving damages, mitigation and offset, back pay, collateral source rule, tax consequences, settlement, managing discovery, calculating damages, and attorney.
This text guides practitioners, HR specialists, and supervisors and managers through the complexities of adverse and performance-based actions with discussion of the governing statutes, regulations, and cases from the MSPB and Federal Circuit and practical advice, strategies, and best practices for navigating these disciplinary processes. Major topics include discussion of the Civil Service Reform Act, statutory and regulatory requirements of adverse actions, the agency’s administrative process in taking adverse actions, substantive rights in performance-based actions, and the agency’s administrative process in taking performance-based actions.
In Memoriam
Ernest C. Hadley
Irreverent to his friends (and others), schooled and practiced in public interest law, husband and partner to Annie, a generous and involved dad for their children, friend to animals, connoisseur of art and food and spirits, Ernie Hadley, who passed away April 8, 2021, at home in Lunenburg, Canada, was a teacher, writer, and practitioner of federal sector employment law, a great friend and patient and supportive professional colleague of this publisher, a publisher in his own right, a radically quick wit, and quick to abjure run-on sentences. A leader in the legal profession and an innovative entrepreneur, Ernie will be much missed. Our condolences to Annie and children Jasmine, Luke, and Mairead.

-Peter Broida

View All of the American Civil Service Law Series online at: deweypub.com/acsls

The EEO Guide offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners.

The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration.

The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law.

This comprehensive text digests notable Commission and federal court employment discrimination cases from 2003 through early 2020 and reviews EEO laws, regulations, guidance, and recent trends.

Condenses MSPB and Federal Circuit decisions from 1999 through early 2020 into concise, usable summaries. Cases are arranged by subject matter areas of Board jurisprudence and further categorized alphabetically.

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