Our Regular Reminder

We are pleased to report an arbitration decision in favor of an officer of one of our clients, the United Power Trades Organization. Arbitrator David Gaba ruled on May 30, 2003, that the officer's annual performance rating was invalid and must be raised, since he was not told that his performance was slipping before he got his annual rating. Significantly, the Arbitrator also ruled that the lower performance rating was in reprisal for the officer's Union activities. He directed the Agency to raise the overall rating to "excellent." U.S. Army Corps of Engineers, Northwestern Division. The brief we submitted to the Arbitrator in that case surveys the law and case decisions on performance appraisals and proof of anti-union reprisal. Clients who think

this brief might help them on their own cases can contact us and we will e-mail a copy.

Congratulations to Leo Spell of AFGE Local 3981 for winning an arbitration case involving employee exposure to tobacco smoke. This union represents employees at the Federal Correctional Institution in Jesup, Georgia, who are exposed to smoking by inmates in confined areas. Arbitrator Bairstow issued an award on May 27, 2003, ordering the Agency to negotiate with the Union over the payment of hazard pay to the affected employees. The Arbitrator relied in part on Department of Veterans Affairs, 43 FLRA 414 (1991), in which the Authority ruled that hazard pay for GS employees exposed to tobacco smoke is negotiable.

The Supreme Court issued an important EEO decision on June 9, 2003, in Desert Palace, Inc. v. Costa. The case involved the type of evidence necessary to shift the burden of proof to the employer to show that it did not discriminate against the employee. For many years, most courts had assumed that only "direct" evidence would be enough to accomplish this. For example, if the supervisor who decided to fire the employee or not promote the employee made some disparaging remarks about women or minorities, this would be "direct proof" of discrimination and would require the employer to show that it would have made the same employment decision even in the absence of discrimination. The Supreme Court ruled that direct evidence is not required. According to the Court, any evidence, direct or indirect, that shows that an employee's protected status was one of a number of motivating factors for the personnel action is sufficient. Ms. Costa was the only woman working in a warehouse and was fired for getting into an argument with a male co-worker. She introduced evidence that she was treated less favorably than men in the assignment of overtime and received harsher discipline than men for the same conduct. The Supreme Court ruled this was enough to require the employer to prove that she would have been fired anyway even if she were not a woman.

The decision in U.S. Penitentiary, Terre Haute, Indiana, 58 FLRA 327 (2003), involved an old part of the Fair Labor Standards Act called the "Portal-to-Portal Act." The employees, who are prison guards, argued that they should be compensated from the time they report to the prison entrance to the time that they reach their work stations inside the security perimeter. The Authority disagreed, saying that the FLSA does not allow for employees to be paid for time spent traveling to and from the actual place of performance of their principal activities, even if it is on the employer's premises.

The decision in Ft. Carson, Colorado, 58 FLRA 244 (2002), involved employees who are FLSA – exempt who claimed stand-by pay under Title 5 of the U.S. Code. The employees were required to remain in an on-call status, ready to report back to work if paged. The FLRA concluded that their off-duty time could not be considered "hours of work" and so they were not entitled to stand-by pay. The Authority ruled that the employees were not substantially restricted in their off-duty activities since they were free to leave their living quarters so long as they left a phone number where they could be reached.

The decision in Blue Grass Army Depot, 58 FLRA 314 (2003), involved an employee who was held financially liable for damages he caused to a government owned truck. The employee filed a grievance and argued that he was not negligent in connection with the accident. The Arbitrator agreed and ordered the agency to rescind the employee's financial liability. The FLRA upheld the award.

The Americans with Disabilities Act (ADA), requires employers to consider reassigning a disabled employee who can no longer perform her job. Many employers argue that "consideration" is all that is required and that if a better-qualified candidate is available for a particular vacancy they can refuse to reassign a disabled employee to the vacancy. The EEOC ruled in Smith v. White, EEOC No. 03A20073 (May 15, 2003), that this is not true. According to the EEOC, if a disabled employee who can no longer perform her job for medical reasons meets the basic qualifications for a vacant position, the employee must be reassigned to that position.