MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

In a private sector case that may have some implications for the federal sector, the Second Circuit ruled that the New York Department of Corrections violated the ADA by requiring corrections officers to submit general diagnoses as a precondition to returning to work following certain medical absences. Conroy v. New York State Dept. of Correctional Services, 41 GERR 686 (2^nd Cir. 2003). The Court noted that the ADA generally prohibits inquiries into whether an employee has a disability and the general diagnosis required by this employer's policy would have forced this particular employee to reveal his asthma and severe pulmonary obstructive disease. The Court noted that such inquiries may be justified by "business necessity" but they must be very carefully tailored to the requirements of the particular job. In other words, the medical inquiry is only appropriate if it directly relates to the essential functions necessary to perform the job.

Trying to file grievances for bargaining unit employees based on temporary service as a supervisor is always a challenge, since supervisors have no access to the grievance procedure. The FLRA found a solution in Bureau of Engraving and Printing, 58 FLRA No. 96 (2003). The employee grieved that he was not paid at a special supervisory rate while attending training. The Arbitrator ruled in his favor. The FLRA upheld the award, saying that the grievance was not actually filed until after the employee returned to the bargaining unit and that the grievant's claim for the extra pay did not arise until the training was over

Another private sector case may come in handy in the federal sector. The decision in Jano Graphics Inc., 172 LRRM 1292 (2003), involved an employer that made changes to working conditions after reaching impasse in contract negotiations with the Union. The employer submitted its "best and final offer" and proposed that the Union submit that offer to unit employees for a ratification vote. The NLRB ruled that this was the internal business of the Union and the employer had no right to make this proposal. It concluded that the implementation of the "best and final offer" was an unfair labor practice.

A recent FLRA decision may give federal agencies some ideas about how to avoid negotiating over hazard pay for GS employees. The law says that no hazard pay is available to a GS employee if the hazard or hardship has been taken into account in classifying the position. In Dept. of Navy, 58 FLRA No. 89 (2003), the Union and management disagreed over whether a hazard had been taken into account in classifying the grade level of certain police officer positions. The Authority ruled that it could not resolve this disagreement since classification matters are excluded from proceedings under the labor statute. One possible result might be the need to seek a ruling from OPM on the classification dispute.

A couple of recent decisions illustrate the boundaries of a Union's duty of fair representation. In Mulvihill v. Top-Flite Golf Company, 172 LRRM 3041 (1^st Cir. 2003), a Union member sued his Union for refusing to take his case to arbitration. The Court ruled that there was no breach of the duty of fair representation since the Union had thoroughly inquired into the evidence against the employee and concluded that he was guilty of the charge of sexual harassment and not likely to win at arbitration.

On the other hand, it is important to take grievants along to grievance meetings if at all possible. In Mail Handlers Local 307, 172 LRRM 1195 (2003), the Labor Contract provided that the grievant had a right to attend grievance meetings. The Union knew the grievant wanted to attend and yet the Union proceeded to hold the meeting without the grievant present. The NLRB ruled this violated the Union's duty of fair representation.

Two recent decisions show different interpretations of the timely filing requirement for EEO complaints. In Cherosky v. Henderson, 14 AD Cases 673 (9^th Cir. 2003), an action by a Postal employee was dismissed as untimely even though he claimed that the employer's refusal to provide him with an accommodation for his disability was a continuing violation. The Court disagreed and said that his deadline to file the EEO complaint was 45 days after the employer denied his request for this accommodation.

On the other hand, a delay in filing an age discrimination complaint was excused in Jones v. Dillard's Inc., 92 FEP Cases 28 (11^th Cir. 2003). The employee was laid off but later learned that her old position had been reinstated. The Court ruled that she did not have to file a complaint of age discrimination until she learned the age of her replacement.