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NEWS AND CASE ALERT
June 14th, 2023 | Issue #15-04
TABLE OF CONTENTS
SUPREME COURT AFFIRMS FLRA ULP COVERAGE OF NATIONAL GUARD DUAL-STATUS TECHNICIANS
FLRA PRECLUDES NEGOTIABILITY OF SITE OF OFFICIAL DUTY STATION
FOR PURPOSES OF LOCALITY PAY DETERMINATION
INTERESTING READING
We offer legal reference books and audiovisual training on federal civil service, equal employment, and labor law, for attorneys, unions, arbitrators, managers, and agency personnel offices. A small business for over 39 years.
Read the full archive of over 100+ News and Case Alerts online at: deweypub.com/email
NEW RELEASES
In two volumes, Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and constraints on arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details)
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2022. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. (more details)
An authoritative examination of the FMLA, this book includes citations and analysis of governing statutes, regulations and case law. (more details)
Prehearing and post-hearing motions, as well as rules of motion practice are studied in this newly updated practical and helpful guidebook. The authors examine motions presented to the Board and the Commission separately, paying special consideration to how to most effectively use motions for the desired result. (more details)
SUPREME COURT AFFIRMS FLRA ULP COVERAGE OF NATIONAL GUARD DUAL-STATUS TECHNICIANS
Everyone knows what the national guard is, right? OK. Some people do. What about dual-status technicians? Described as “rare birds” in an earlier Supreme Court case, Babcock v. Kijakazi, 595 U. S. ___, ___ (2022), DSTs serve as civilian employees engaged in organizing, administering, instructing, training, or providing maintenance and repair of supplies to assist the National Guard. As a condition of that employment, they must maintain membership in the National Guard and wear a uniform while working. Except when participating as National Guard members in part-time drills, training, or active-duty deployment, DSTs work full time in a civilian capacity and receive federal civil-service pay.

In DOD, Ohio National Guard and AFGE, 71 FLRA 82 (2020), a ULP case, FLRA determined the NG violated the statute when it abrogated its labor contract—not just diminished its protections, but refused to abide by its grievance procedure, official time provisions, and union dues allotment provisions. Adopting a decision of its ALJ, FLRA ordered a posting and corrective action. The ALJ rejected the NG’s arguments that DTS were not employees, and that the NG was not an agency under the FSLMRS. The NG’s petition for review of the FLRA decision was denied by the Sixth Circuit in 2021. On the case traveled to the Supreme Court.

After review of Executive Order law predating the Reform Act and parsing the statutes defining federal agencies and interconnecting federal employees and DOD NG personnel, the Court opined:
Indeed, it would be passing strange if dual-status technicians, who qualify as employees under the Statute, were supervised by an entity not required to safeguard the rights guaranteed employees under the Statute. §7102 (providing that “each employee shall be protected in the exercise of ” his right to join or refrain from joining a labor association) and 7103(a)(2)(A) (defining an “‘employee’” as “an individual . . . employed in an agency”).
The ULP determination was affirmed. FLRA prevailed in its construction of the statute—proving, for once, that (with credit to the late Jim Croce) “You don't tug on superman's cape. You don't spit into the wind. You don't pull the mask off that old lone ranger. And you don't mess around with Jim.”

Ohio Adjutant General’s Department v. FLRA, ___S.Ct.___ (May 18, 2023)
2023 PRE-ORDERS
Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2023 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details)
Updated annually, the EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details)
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. Major topics include jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, prohibited personnel practices, retirement, attorney fees, settlement, remedies, and judicial review.(more details)
Designed for all who work on conduct and performance issues and those who litigate cases, this book serves as a quick reference to federal employment litigation questions. Answers are provided in an easy to read and thorough manner. (more details)
FLRA PRECLUDES NEGOTIABILITY OF SITE OF OFFICIAL DUTY STATION FOR PURPOSES OF LOCALITY PAY DETERMINATION
The negotiability case involved employees who travel the country to perform inspections. HUD had assigned their official duty station in accordance with the vacancy announcement leading to the appointments. Then HUD changed the duty stations to be the employees’ home locations. The union sought negotiations on proposals seeking to equalize the locality pay with what amounted to any higher rate under the earlier official duty station determination.

FLRA rejected negotiability of the proposals, relying on the OPM government-wide regulation stating that the official worksite is the location where the work activities of the employee’s position of record are based, as determined by the employing agency—not based on past assignment locations. We await future word from FLRA on employees in telework status.

AFGE Council 2222 and DHUD, Real Estate Assessment Center Office, 73 FLRA 567 (June 7, 2023)
The Dewey Publications Podcast
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View a detailed list of all past episodes at deweypub.com/podcast
INTERESTING READING
The bureaucracy of Congress—
Jesse M. Cross, Federal Bureaucratic Studies, 80 Wash. & Lee L. Rev. 229 (Spring 2023)