A recent FLRA decision shows that it is sometimes a good idea to pursue an unfair labor practice issue through the arbitration process rather than the ULP process. The case involved an agency's implementation of a new qualification standard without completing bargaining with the union. Instead of filing a ULP charge, the union filed a grievance on its own behalf and took the case to arbitration. The arbitrator ruled that the agency made a mistake by implementing its proposal after the parties reached an impasse. The arbitrator interpreted the parties' labor contract to require the agency either to make a declaration of non-negotiability or to make a request to the Federal Service Impasses Panel for assistance. U.S. Dept. of Labor57 FLRA No. 146 (2002).

The Authority's decision in HHS, Centers for Medicare and Medicaid Services, 57 FLRA No.147 (2002) involved the "flexiplace" provisions of the parties' labor contract, under which employees are allowed to work at home under certain circumstances. An employee filed a grievance and the arbitrator ordered the agency to grant the employee's request. On appeal, the agency argued this interfered with its right to assign work. The FLRA disagreed, ruling that the geographical location where the work of a position is performed does not involve the assignment of work.

The MSPB has consistently ruled that it is improper for a deciding official in a disciplinary action to rely on prior instances of alleged misconduct in deciding what penalty to impose if the proposal letter itself does not refer to the prior misconduct. In Biniak v. Social Security Administration, 90 MSPR 682 (2002), the Board explained that this error does not necessarily mean the employee will win his appeal. In that case, the deciding official improperly relied on past discipline in deciding to remove an employee on charges of misuse of government equipment. The Board ruled that it can remedy this error by evaluating the mitigating and aggravating factors on its own, without regard to the prior discipline. The Board upheld the employee's removal on the basis that the charges against him were so serious that they warranted removal from employment in themselves even if the employee's record of prior discipline was clean.

• In Bristol v. Clear Creek Count , 281 F. 3d 1148 (10th Cir. 2002), the court had to decide when a position is "vacant" for purposes of considering reassignment for a disabled employee. The court ruled that this question should be examined at the point in time when the employee asks for a reasonable accommodation. A vacancy need not exist on that date, said the court, so long as the employer knows that a job opening will become available in the immediate future.
• Many disability discrimination cases -involve requests by employees for nonstandard work schedules. If the employee requests a completely unstructured work schedule, this is likely to be rejected on the basis that it would prevent the employee from performing the essential elements of the job. In Breen v. Dept. of Transportation, 40 GERR 352 (D.C. Cir. 2002), however, the court ruled that a request for a specific type of unconventional work schedule could be a reasonable accommodation. The employee in that case suffered from a psychological disorder and asked for one hour "quiet time" to be built into her tour of duty, by extending her shift for one hour each day in return for one day off every two weeks. The lower court rejected this proposal right away on the basis that it would prevent the employee from performing the essential functions of her position. The appeals court disagreed and sent the case back to the lower court for the presentation of evidence by both sides as to whether this accommodation would be an undue hardship on the employer.
• The Supreme Court's evisceration of the ADA has profoundly affected the lower courts. One federal district judge in Massachusetts even ruled that a woman with one arm who was rejected for an emergency medical technician job was not disabled. According to the judge, she could lift as well as anybody else with her one good arm! Fortunately, the appeals court said "you gotta be kidding" and reversed the decision. Gillon v. Fallon Ambulance Service, 12 AD Cases 1633 (1 st Cir. 2002). Who would have thought in 1990 when the ADA was enacted that it would be a major victory 12 years later to get a ruling that a person with one arm is covered by the ADA?