MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

We are pleased to report that Barrie received a favorable decision from Arbitrator Ronald Hoh on the termination of an employee at Hill Air Force Base, Utah. The employee worked as part of a team to transport missiles (without the warheads) between Montana and Utah. The agency fired him on the basis that he was not attentive when watching the missile and sometimes left the missile to get a meal or use the restroom. The arbitrator found that the employee did nothing different than the more experienced employees and ordered the employee reinstated with a lesser penalty.

We thank Lorraine Tuliano of AFGE Local 2113 for bringing a recently enacted security law to our attention: 10 USC 986. This law contains an absolute prohibition on certain persons holding security clearances. Among them are persons convicted of a crime and sentenced to prison for more than one year and persons who are unlawful users of a controlled substance.

Some recently reported FLRA decisions are showing that the AFGE Locals with the Bureau of Prisons are doing a good job negotiating contracts and taking cases to arbitration.

In Federal Correctional Institution, El Reno, Oklahoma, 59 FLRA No. 90 (2003), the arbitrator ruled that the agency violated the labor contract by searching an employee's desk and work station without having a union representative present. The Authority agreed with the union that this portion of the labor contract was legal since it allowed management to search at any time if it had an overriding exigency. Since the arbitrator found no overriding exigency existed in this case, the Authority upheld the arbitrator's award.

In Federal Correctional Complex, Beaumont, Texas, 58 FLRA No. 75 (2003), an arbitrator concluded that the agency violated the labor contract by placing an employee on home duty without just cause. The Authority upheld the finding of a violation, saying there was nothing wrong about the arbitrator basing the violation on general contract language requiring employees to be treated fairly and equitably. The union almost won the whole case, as the arbitrator ordered the employee made whole for lost overtime and shift differential. The Authority set aside this portion of the award, however, saying that the arbitrator had not explained how the employee's placement on home duty was directly connected to a loss of overtime or shift differential. This is an important reminder for all unions to make the "but for" showing in arbitration – demonstrate to the arbitrator a direct connection between the violation of law, regulation or the labor contract and the loss of pay or benefits.

Not everything went right for the unions at BOP, however. A very contentious issue has been the extent to which management can vacate posts to save on salary. In Federal Correctional Institution, La Tuna, Texas, 59 FLRA No. 52 (2003), an arbitrator had prohibited management from vacating posts except in emergencies. The Authority set aside the award, concluding that it excessively interfered with the right to assign work.

Promotion cases can be tricky to win at arbitration but as long as you follow the basic rules, you have a good chance. We recommend to all clients that they read the decision in Department of Labor, 59 FLRA No. 84 (2003). This is a decision in which an arbitrator's award of a retroactive promotion was upheld in all respects. It is particularly helpful to see how the Authority raises and then resolves the key legal points in a case like this. If you're taking a grievance involving a promotion to arbitration, you should read this the day before the arbitration hearing.

Another case out of the Department of Labor shows just how much you can get from a "small" remedy if you are persistent. The case is Department of Labor, 59 FLRA No. 98 (2004). The employee previously settled a grievance in return for a promise of priority consideration. Priority consideration is often considered to be a weak remedy since management must simply offer some honest reason for not choosing the employee for the next vacancy. In this case, however, the union was convinced that management gave the employee no honest consideration and took the case to arbitration. The arbitrator agreed and found that the appropriate remedy was a retroactive promotion. In other words, he found that "but for" management's failure to give the grievant honest consideration, the grievant would actually have been chosen for the position. The FLRA upheld the award in all respects, saying the employee was entitled to the position and to backpay.

Title 38 professionals in the VA have little in the way of meaningful remedies for being terminated from employment. In Talukdar v. VA Medical Center, Fargo, North Dakota, two VA doctors were ordered back to work with backpay and interest by the Department of Labor. It turns out that the Department of Labor enforces a statute involving the hiring of immigrant laborers. The two doctors were cooperating in a Department of Labor investigation into whether foreign workers at the facility were underpaid. After they were fired, they convinced an administrative law judge of the Department of Labor that it was due to their participation in the Department of Labor investigation.

It's nice to know that in these dark times for employees and unions, the FLRA will still issue an appropriate remedy now and then. In Defense Commissary Agency, 58 FLRA No. 77 (2003), management unilaterally removed stools from the workstations of bargaining unit cashiers. The judge found a violation but decided not to order status quo ante relief. The Authority reversed and found that the status quo ante remedy was warranted.

In INS, Los Angeles, California, 59 FLRA No. 56, management unilaterally terminated a 4-10 work schedule. The Authority agreed with the union that the 4-10 work schedule should be reestablished immediately pending the completion of negotiations with the union.

Many people know that the Americans with Disabilities Act (ADA) does not protect current users of illegal drugs, even if they are addicted. It does, however, protect former users of illegal drugs from discrimination based on their past usage of drugs. This was illustrated in Hernandez v. Hughes Missile Systems, 15 AD Cases 609 (9^th Cir. 2004). The employee successfully completed a rehabilitation program and had been "clean" for some time. The court said that the employer's refusal to rehire him on the basis of his drug usage would violate the ADA.

Many courts have made it all but impossible to prove any kind of discrimination in connection with discipline by saying that the employee may not compare himself with anyone except another employee whose circumstances are identical to his. Under this reasoning, an employee who was fired for smoking in the workplace could not compare himself to another employee who received only a reprimand for the same thing because the first employee was smoking a Marlboro and the second employee was smoking a Kent! In Wheeler v. Aventis Pharmaceuticals, 93 FEP Cases 641 (8^th Cir. 2004) a black female employee was told she had no basis to compare herself to a white female employee. The black female was fired for teasing a male coworker and grabbing at his private parts. The white female "flashed" her breasts and received no discipline at all. The court admitted that both employees were involved in sexual "horseplay" but that the two incidents could not be compared at all. So, if your going to get involved in this kind of horseplay, is it better to expose yourself or is it better not to be a black female?