On January 4, 2013, Carol Waller Pope's term as Chairman and Member of the Federal Labor Relations Authority expired. Ernie DuBester, now Chairman, is the sole member at the Authority. With only one member, the Authority lacks the quorum needed to issue final decisions in arbitration, negotiability, representation and unfair labor practice cases. When a quorum is reestablished, the Authority can begin issuing decisions again.

In the meantime, Dewey is pleased to announce that Peter Broida's newest edition of A Guide to Federal Labor Relations Authority Law and Practice (2013) is now available. With a quorum last year, the Authority issued significant decisions on representation, negotiations and negotiability, arbitration, ULPs and more. We highlight a few here.

Representation: VA Lovell Federal Health Care Center and NNU, 66 FLRA 870 (2012), found appropriate a unit resulting from a merger of a VA facility (including Title 38 medical personnel) with a Navy facility (including Title 5 personnel).

Negotiations and Negotiability: AFGE Local 1401 and Dept. of Air Force, Joint Base Andrews, 67 FLRA 34 (2012), found that an agency may only assert the bargaining defense when specific proposals are advanced. An agency may not preempt bargaining by refusing to entertain proposals concerning changes in working conditions that the agency contends are justified by a compelling need. DHS C&BP and AFGE Local 1929, 67 FLRA 46 (2012), found that withdrawing access to agency computers by an employee who is placed on administrative duties pending the outcome of a misconduct investigation is subject to impact negotiations, not decision bargaining.

Arbitration: Dept. of Treasury, IRS, St. Louis and NTEU Chapter 14, 67 FLRA 101 (2012), reiterated that employees, who did not actually work overtime, may nevertheless receive backpay where their failure to work overtime resulted because the agency violated the parties' agreement. "If an award sufficiently identifies the specific circumstances under which employees are entitled to backpay, there is no additional requirement that the Arbitrator identify specific employees entitled to the remedy. U.S. Dep't of the Treasury, U.S. Customs Serv., El Paso, Tex., 55 FLRA 553, 560 (1999)."

ULPs: Dept. of Agric., FSIS and Nat'l. Joint Council of Food Inspec. Locals, AFGE, 66 FLRA 720 (2012), found that an agency may implement a change to correct an unlawful practice without substantive bargaining, but the agency must provide the union with notice and an opportunity to bargain impact and implementation of the change.

For further discussion of these cases and topics, see A Guide to Federal Labor Relations Authority Law and Practice by Broida and Collective Bargaining for the Federal Sector by Ferris.

Last week, the EEOC published four documents addressing how the ADA applies to applicants and employees who have or had cancer, diabetes, epilepsy, and "intellectual disabilities." Questions regarding these four disabilities in particular are some of the most posed to the EEOC. This new guidance covers the most frequently asked questions by employers.

For each disabling condition, the guidance includes discussion on obtaining, using, and disclosing medical information; forms of accommodations; concerns about safety; harassment; retaliation; and how to file a charge. The information is fairly detailed and specific to each condition.

This is a great resource for mangers and supervisors, personnel specialists and representatives.

Click on the conditions listed below to be taken to the corresponding Q&A sheet at eeoc.gov:

    Cancer
    Diabetes
    Epilepsy
    Intellectual Disabilities

For more on the Americans with Disabilities Act, see Dewey's newest release Consolidated Federal Sector EEO Update by Vitaro, Goodfriend & Gilbert. Also available: A Guide to Federal Sector Disability Discrimination Law and Practice by Hadley and Federal Sector Disability Discrimination Law Deskbook by Gilbert.

Recently, General Counsel for the FLRA, Julia Atkins Clark, published a research tool entitled "Representation Case Law Outline." Designed for representatives researching representation case issues, it contains "a collection of representation case law developed under the Federal Service Labor-Management Relations Statute." Presented in a question and answer format, this outline is hyperlinked to cited FLRA decisions, statutory provisions, and regulatory text.

An "Unfair Labor Practice Case Law Outline" is also available on the FLRA's website. Fully hyperlinked like its "Representation" counterpart, this outline also contains a table of contents, making it more user friendly, and the information is imparted in a true outline, rather than question and answer, format.

For more FLRA and collective bargaining research tools, see Principles of Federal Sector Arbitration Law by Broida and Davis, Labor Relations for Supervisors and Managers by Corum, and A Guide to Federal Sector Labor Arbitration by Hadley.

Last week, Jenny Yang was sworn in as Commissioner of the EEOC. Her appointment returns the Commission to its full five members.

Yang arrives with plenty of subject matter experience as a former partner at Cohen Milstein and senior trial attorney in the Civil Rights Division of the Department of Justice.

Don't forget that the Court of Appeals for the Federal Circuit sitting en banc will hear oral arguments in the matter of Berry v. Conyers, 2011-3207, on Friday, May 24, 2013, 10:00 A.M. Courtroom 201.