Our Regular Reminder

This is a reminder to all our union clients of the various services available through our firm. Most of our retainer agreements provide for unlimited legal advice, on-site visits and filing and processing of unfair labor practice charges. Please do not hesitate to contact us if you would like to have one of us conduct training, meet with employees or review a case for arbitration or MSPB. We are also just a phone call or a fax away if you need help or feedback researching any legal issue on federal sector employment. Check out our web site at hftp://minahan.wld.com.

AWOL and Indefinite Suspension Reversed

We are pleased to report a favorable decision by Arbitrator Gary Axon on a case in which Barrie represented an SSA employee in Seattle. The union that covers these employees is AFGE Local 3937. The employee, who was also a full-time union representative, was charged AWOL and suspended indefinitely after he was incarcerated on an off-duty criminal charge. Arbitrator Axon ruled on December 22, 2001, that the employee's request for approved leave should not have been denied, because the employee was unable to pay the high bail initially set by the court and because the agency had already decided not to let the employee return to work anyway. Arbitrator Axon also ruled that the indefinite suspension imposed on the employee due to the criminal charge was improper because the employee had not been convicted, he was entitled to a presumption of innocence, and there was no showing by the agency that the employee was a danger in the workplace or that the off-duty charges against him had any impact on his job.

Reprisal for Age Complaints

The D.C. Circuit resolved an important issue in Forman v. Small, 87 FEP Cases 526 (D.C. Cir. 2001). The age discrimination statute applicable to federal employees prohibits age discrimination but says nothing about reprisal for making age discrimination complaints. The government has often argued that this means there is no such thing as a reprisal case grounded on the prior filing of an age discrimination complaint. The D.C. Circuit in Forman disagreed. The Court said nothing in the law suggests that Congress intended the federal workplace to be less free of age discrimination than the private workplace. It is difficult to imagine how a workplace could be free from discrimination based on age, said the Court, if a federal employer could discharge or take other adverse action against employees for complaining about age discrimination.

Watch This One: Age Discrimination

Speaking of age discrimination, the Supreme Court has agreed to decide an important question on which the circuit courts are almost evenly divided. The question is whether "disparate impact" cases are viable in the age discrimination arena. A disparate impact claim is one that relies more on statistics than on direct proof of discrimination in an individual case. For example, the Supreme Court once ruled that an employer's requirement for all job applicants to have a high school diploma amounted to race discrimination because of its disparate impact on Africa n-American applicants in that particular area, who were much less likely to have a high school diploma than white applicants. The Supreme Court ruled that when this kind of disparate impact is shown, the employer has the burden of proving that its requirement is justified by business necessity. The case the Supreme Court has agreed to hear is Adams v. Florida Power Corporation. The case involves 117 former employees of the company who were fired during a series of reorganizations. They say that more than 70 percent of the workers selected for discharge were over 40 years of age, which should be enough to support a "disparate impact" claim. The Eleventh Circuit ruled that the "disparate impact" theory is not available in age discrimination cases. The Supreme Court will now decide whether or not to agree with this.

Watch This One: Scope of Bargaining

A recent decision by the D.C. Circuit has not gotten much attention, but it could lead to a long-overdue reevaluation of the scope of bargaining in the federal sector. The problem is the FLRA's historical inability to distinguish expenditures that are prohibited by law from those that have no specific law authorizing them. The case is Association of Civilian Technicians, Puerto Rico Army Chapter v. FLRA, 39 GERR 1312 (D.C. Cir. 2001). The union made a proposal that if the agency has to cancel previously approved leave it will reimburse the employee for hotel and airline cancellation charges incurred in connection with the canceled leave. The FLRA found the proposal to be nonnegotiable, referring to Comptroller General decisions saying that such expenditures were not covered by the Travel Expenses Act (5 USC 5702). The Union explained that it wasn't basing its proposal on that Act but rather on the broad authorization in the labor statute that allows agencies and unions to negotiate over personnel policies and working conditions. The union's point was that even though no statute specifically allowed this expenditure, no statute prohibited it either, so it should be open for bargaining. The D.C. Circuit agreed with the union that the FLRA misunderstood its argument and sent the case back to FLRA for reconsideration. The D.C. Circuit said FLRA was wrong to conclude that the expenditure proposed by the union was prohibited by law and ordered the FLRA to take another look at whether the general law authorizing collective bargaining in the federal sector is enough to make the proposal negotiable. This decision could go a long way toward clarifying the negotiability of any union proposals calling for agencies to approve expenditures on behalf of a union or its employees.

Career Ladder Promotions

Many labor contracts require that employees who are eligible for non-competitive promotions after a certain waiting period be promoted immediately if they meet all qualifications for promotion at the end of that waiting period. The decision in Social Security Administration, 57 FLRA No. 93 (2001) involved an agency's challenge to an arbitrator's award of retroactive promotion and back pay to a number of employees. The agency argued that the arbitrator exceeded his authority in determining whether the employees had the minimum qualifications to be promoted. The FLRA disagreed, saying that where a labor contract requires prompt promotion upon meeting certain minimum qualifications, a labor arbitrator has full authority to decide whether those qualifications have been met.

Settlement Agreements and "Public Policy"

There is sometimes a tension between enforcing a settlement agreement and the needs of "good government." This conflict is obvious if the settlement agreement calls for the agency to do something that is actually prohibited by law and such agreements are routinely ruled invalid. The more difficult cases involve agreements that are not prohibited by law but that judges think are a bad idea and might cause more problems than they solve. For example, the Federal Circuit has more than once expressed its discomfort with settlement agreements where an agency promises to change a removal to a resignation and tell prospective employers that the employee voluntary resigned. The Federal Circuit has not ruled these agreements invalid, though it has suggested that it might someday. The MSPB's December 10, 2001, decision in Gizzarelli v. Dept. of the Army struck down part of a settlement agreement on "public policy" grounds. The agreement required the agency to release only certain information about the employee in response to future inquiries and nothing else. The employee later applied for a position with another agency and his original employer gave information to OPM during its background check about the employee's criminal activity. The employee filed a petition for enforcement with the MSPB, saying this violated the promise in the settlement agreement not to reveal derogatory information. The MSPB agreed that the agency violated the settlement agreement but it also refused to enforce that part of the agreement on public policy grounds. The MSPB ruled that a settlement agreement should not be allowed to keep a federal agency from withholding criminal history records from OPM during a background investigation.