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NEWS AND CASE ALERT
February 10th, 2022 | Issue #14-02
TABLE OF CONTENTS
FLRA POLICY ISSUANCES
STRUCK DOWN
SUGGESTED READING

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

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. (more details)


The FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. Major topics include jurisdiction, unit determinations and elections; labor organizations; procedures and substantive limitations on and specific applications of negotiability determinations; the Federal Service Impasses Panel; ULPs and remedies; review of arbitration awards; and administrative reconsideration and judicial review. This authoritative text is a component of the American Civil Service Law Series.
FLRA POLICY ISSUANCES
STRUCK DOWN
In decisions days apart, panels of the D.C. Circuit vacated 2020 policy issuances from FLRA on the threshold level of changes in working conditions necessitating impact bargaining and the permissive or mandatory nature of zipper clauses restricting mid-term bargaining.

AFGE v. FLRA, No. 20-1398 (Jan. 28, 2022), considered the policy statement in OPM, 71 FLRA 977 (Sept. 30, 2020), ruling that zipper clauses restricting midterm bargaining are mandatory, not permissive, subjects of bargaining—meaning that if the parties cannot agree, FSIP decides the availability of midterm bargaining.
Tracing the history of FLRA decisions recognizing the statutory right to midterm bargaining, the court zeroed in on FLRA’s reversal of position in 2020 when in the policy statement FLRA determined the FLMRS did not require midterm bargaining, leaving it a mandatory subject of negotiations.

Of the failure of FLRA to provide proper public notice of the scope of its policy statement for purposes of public comment before it was issued, the court spoke of “The drive-by procedure and conclusory reasoning that produced the challenged Policy Statement . . . .” FLRA’s reasoning on the substance of the change in approach to midterm bargaining, the court said, was unreasoned, arbitrary, and capricious. The policy statement was vacated, leaving in place prior law making midterm bargaining a statutory right to be waived or limited at the union’s bargaining election.

AFGE v. FLRA, No. 20-1398 (Jan. 28. 2022)
There’s more.

AFGE v. FLRA, No. 20-1396 (Feb. 1, 2022), vacated FLRA’s policy statement in Dept. of Education, 71 FLRA 968 (2020), changing the threshold for impact bargaining from de minimis to "substantial impact on a condition of employment."

The court surveyed the long, long history (35 years long) of the de minimis bargaining standard and found no support in the FLRA’s reasoning that it should follow the private sector standard set by the NLRB—the reason being that the scope of private sector bargaining, which encompasses economic issues precluded from negotiation in the federal sector, cannot be used to narrow the remaining areas of federal sector bargaining (unless that result were compelled by clear statutory language). FLRA was criticized by not soliciting public comment on the change that was announced in the policy statement. FLRA was also criticized for relying on several of its decisions that did not support its position that the de minimis bargaining standard was inconsistently applied. For lack of reasoned decisionmaking, FLRA’s policy statement was vacated. We return to the de minimis bargaining threshold.

AFGE v. FLRA, No. 20-1396 (Feb. 1, 2022)

NEW RELEASE: HOT OFF THE PRESS

By: Fitch & Kuntz
Edition: 5th/2021
ISBN: 978-1-941825-96-9; 1-941825-96-6
Availability: IN-STOCK
This guide closely examines security clearance law and procedures, offering representatives a comprehensive analysis of case law, directives, adjudicative guidelines, regulations and statutes. There have been many changes in the security clearance arena including realignment of the NBIB into the DCSA; DOD’s memo streamlining security clearance practices; DOHA decisions addressing CBD; the Trusted Workforce 2.0 Initiative; SEAD-6 addressing continuous evaluation procedures; SEAD-2 governing polygraph use; and SEAD-8 addressing temporary or interim eligibility for a clearance; and the addition of MSPB, EEOC, and Department of Energy decisions pertaining to security clearances. Major topics include the history of security clearances, administrative procedures, hearing and personal appearances procedure, criminal procedure, the polygraph, appeals, cases analyses, and noteworthy court cases. (more details at www.deweypub.com/sclp)


Updated with cases through mid-2021, the Disability Deskbook is an extensive compilation of cases interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations and covers all disability related topics. Major topics include who is covered under the ADA, specific impairments, major life activities, "regarded as having a disability," "qualified individual with a disability," reasonable accommodation, undue hardship, direct threat defense, and disability related inquiries. (more details)


Written for federal supervisors and managers, a Guide to Ethics, Rules, and Responsibilities details and explains the primary rules governing ethics. Major topics include sources of ethics rules; gifts; financial conflicts; impartiality; seeking employment; misuse of position, property, time, vehicles, information; outside activities; reporting wrongdoing; social media postings; post-employment; supervisory liability; and enforcement. (more details)
Suggested Reading
From the Congressional Research Service—
Compilation of Federal Whistleblower Protection Statutes (Nov. 2021)

The Hatch Act: A Primer (April 2020)

The Senior Executive Service: An Overview (Jan. 2021)




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.


Newly updated this valuable text provides comprehensive coverage of harassment law based on sex, race and color, religion, disability, national origin, age and reprisal. The history of harassment law is rooted in sexual harassment law and cases. Each chapter begins with that history and then explains what the law is today and how/if it differs for the various bases. (more details)
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Newly updated, this guide provides practice notes and examples of provisions that are grouped by settlement topics. Major settlement provision topics include access to and return of agency property and access to facilities, actions upon and consequences of breach, cancellation or rescission of action, conditions of ongoing employment, construction of agreement, disclosure and maintenance of information, enforcement, financial considerations for the appellant, future employment, introductory clauses, leave status, performance, promotion, substituted employment actions, termination of appeal, waiver of rights, and miscellaneous settlement terms.

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A comprehensive examination of the arbitration process and advocacy. With discussion of strategies and practice tips, this how-to guide assists union and management advocates. Major topics include advocate selection, case investigation and evaluation, arbitrator selection, case preparation, prehearing practice, witness selection and preparation, hearing specifics: opening statements, creating a record, witness testimony, direction examination, cross-examination, exhibits, and closing arguments, and post-award practice.
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 2021 and reviews EEO laws, regulations, guidance, and recent trends.

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.

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