It's always encouraging when FLRA gives a real remedy for an unfair labor practice. Paul Hirokawa of our office gets a lot of the credit for pushing FLRA to get Hill Air Force Base in Utah to reimburse our client, AFGE Local 1592, almost $2,000.00 for the cost of an arbitration. The Union took an employee's grievance to arbitration not knowing that management bypassed the Union and met with the employee to settle the case. Since the employee already agreed to a settlement, the arbitrator dismissed the grievance. The FLRA judge ruled that without the bypass the Union would not have spent the money on arbitration and ordered management to pay the Union almost $2,000.00. The Air Force did not appeal the decision. Hill Air Force Base Utah, FLRA No. DE-CA-0036 (April 12, 2001).

It's rare that management's mistakes in investigating an employee play much of a role in winning a case. An exception is the decision VA Medical Center, Dublin, GA, 115 LA 198 (Cornelius, 2000). Management fired a physician's assistant for sexually harassing a female coworker. The arbitrator expressed great concern over the violation of so many of the grievants rights in the labor contract. Management failed to notify him of his right to Union representation in an investigation and of the nature of the charges against him. Management commissioned a board of investigation which proceeded to interview all the relevant witnesses without notifying the Union. On the charge of sexual harassment, the arbitrator found that the employee already had a flirtatious relationship and that the, one incident of touching was not so severe that it amounted to sexual harassment. In florid arbitral prose, arbitrator Cornelius said "if Rome was not built in a day and a full six days were required to complete the earthly environment, it is unclear how Grievant could have created an entire hostile working environment in a mere moment of thoughtlessness." Who else but a labor arbitrator could work classical history and the biblical creation myth into an ordinary grievance?

The key to any type of meaningful remedy in labor arbitration is the "but for" finding. An arbitrator needs to rule that "but for" the violation of a law, a regulation, or a section of the labor contract, the Grievant would have received a certain benefit, such as overtime pay, a promotion, or a higher performance rating. FLRA never requires arbitrators to explain this finding in any detail, they simply have to make the finding. Without the "but for" finding winning a case in arbitration can be a hollow victory. An example is Bureau of Indian Affairs, 56 FLRA No. 191 (2001). The arbitrator determined that management's denial of a within-grade increase and a career ladder promotion was based on illegal performance standards. Unfortunately, the arbitrator said he was unable to determine how management would have rated the grievant using proper standards and so he simply sent the case back to management to determine the grievant's eligibility for the within-grade increase and the promotion. The Union filed an appeal with FLRA, saying that a more meaningful remedy was required once the arbitrator found a violation of the law. The FLRA disagreed, on the basis that the arbitrator was unable to determine that the employee would have received a withingrade increase and a promotion if he had valid performance standards.

Unions often argue that even if an employee is guilty of misconduct, removal from employment is too harsh a penalty if the employee has no record of prior disciplinary

actions. The MSPB upheld the discharge of an employee for submitting fraudulent time and attendance records in Wooten v. OPM, 87 MSPR 680 (2001). The employee had no prior disciplinary actions. However, the employee had been issued a number of written warnings and counselings about the way he was recording his time and leave. Under these circumstances, the MSPB said he was on clear notice of the rules he was breaking and that there was little potential for his rehabilitation.

We discuss a lot of bad court decisions on disability discrimination in this newsletter. Finally, we have four good rulings in a row.

• Some courts have ruled that a person cannot be considered "disabled" within the meaning of the law unless her physical or mental impairment prevents her from doing almost any job. The 1 0th Circuit issued a surprisingly sensible decision in McKenzie v. Dovala, 242 F 3d 967 (1 0th Cir. 2001). The employee was regarded as incapable of working as a deputy sheriff. The employer argued that the employee was not a person with a disability because she was able to work in several other occupations, including caretaker, store clerk and resident counselor. The Court rejected this argument, saying that it was enough to show coverage under the ADA that the employee was precluded from working in the "class" of law enforcement jobs, "her prior and preferred field."