MINAHAN AND SHAPIRO, P.C. Attorneys at Law

The "invisible hand" was coined by the English economist Adam Smith in his 1776 classic, The Wealth of Nations. In his day, the King controlled the economy from the top down. Mr. Smith urged that economic forces should be allowed to operate on their own without interference by the state and the result would be that all rational sellers and rational buyers pursuing their own self-interest would lead to prosperity for all. Adam, if you can still hear us the invisible hand isn't invisible! The hand of the CEO that gave all those employees their pink slips is not invisible. The hand of the Senator who introduced a bill to fund millions of dollars of subsidies for agribusiness by reducing benefits for food stamps is not invisible. The hand of the Wal-Mart executive who signed a deal to import a large portion of his inventory from China, produced under wage and labor conditions that would be illegal in this country so he can continue to pay his own employees minimum wage, is not invisible.

The rich aren't getting richer, the middle class isn't being squeezed out of existence and working families aren't being driven into poverty because of the "invisible hand" of free market economics. Instead, it's the same old Golden Rule that's applied since the dawn of civilization: "them that's got the gold makes the rules!" We have to wake up and decide as a society what kind of country we want to live in. How low should airfares be? How cheap should Wal-Mart's wares be? So low and so cheap that they depress the standard of living for working families everywhere? We need to recommit ourselves to another principle coined in 1776 on the other side of the Atlantic. Abraham Lincoln called it, "government of the people, by the people and for the people."

It had to happen. Now the Administration can't even agree with itself on a ruling favoring federal employees. Way back in 1978, Congress provided for a Special Panel to convene if the EEOC and the MSPB ever disagreed on the same case. The Special Panel has convened only once, back in the 1980's, when it issued the landmark Ignacio v. U.S. Postal Service decision endorsing the then-radical idea that disabled employees who can no longer perform their jobs have a right to be considered for reassignment to other vacant positions within their medical restrictions. Now, the Special Panel will convene for a second time, in Boots v. U.S. Postal Service, EEOC No. 03A40060. Mr. Boots was removed from his job as a truck driver for medical reasons because he was taking anti-seizure medication. Because persons taking this medication do not qualify for a commercial driver's license under DOT regulations, Mr. Boots was removed from employment. After the MSPB upheld the removal, he appealed to EEOC. EEOC pointed out that the DOT regulations are applicable only to private sector employers and that the Postal Service had simply chosen to adopt them as its own procedures. Given that the Postal Service was not bound by the DOT regulations EEOC ruled that it should have conducted an individualized assessment of Mr. Boots to see whether the medication posed any threat to him or others that could not be eliminated or reduced by reasonable accommodation. The case was returned to MSPB so that it could agree or disagree with the EEOC decision. Ever since Ignacio, the MSPB has agreed with every EEOC decision on discrimination law that differed from its own. Here, the MSPB feels that EEOC misinterpreted discrimination law, even though Ignacio held that MSPB must defer to EEOC's judgments on discrimination law, just as EEOC must defer to MSPB's judgments on civil service law. A Special Panel will now be convened to resolve this inter-agency conflict.

It's about time. Over 20 years ago in 24 FLRA No. 99, the Authority ruled that a ULP charge alleging that an agency has not complied with an arbitrator's award will not be considered timely unless it is filed within 6 months of the date of the award. This nonsense persisted until December 17, 2004, when the D.C. Circuit ruled in NTEU v. FLRA, 42 GERR 245. It took that long for the Court to reach the common sense conclusion that a union can't file a ULP charge until an employer has done something the union thinks is a ULP. The Court said that the arbitrator had directed the agency to provide the union with certain information within 45 days after his award. Based on this, the Court said that the earliest the 6 month filing period could start to run was day 46, not the date of the arbitrator's award.

The FLRA has long ruled that if a particular change in working conditions represents the exercise of a management right (such that the union is limited to impact and implementation bargaining) no bargaining will be required if the change itself is de minimis in nature, meaning that it does not significantly affect personnel policies or working conditions. With regard to changes that are not the exercise of a management right and so are negotiable in themselves, such as whether to change policies or practices on employee parking, workplace design and ergonomics or whether or not to establish an alternative work schedule, the Authority maintained for many years that these changes are not subject to a de minimis exception and that federal agencies must bargain with the recognized union before implementing such changes. The Authority abandoned that rule last year, and the D.C. Circuit just upheld that decision. Association of Administrative Law Judges v. FLRA, 43 GERR 267 (2005). We have no objection to the de minimis rule in principle. In practice, however, it is disturbing to see what the courts think is de minimis. The rule echoes the application of the increasingly popular "adverse action doctrine" in EEOC cases, under which "minor" matters such as permanent reassignments, lowered performance ratings and defamatory statements have been dismissed. The courts say that, even if these actions are discriminatory, they are so unimportant that they don't affect conditions of employment. The Association of Administrative Law Judges decision involved 6 employees who enjoyed reserved parking spaces. The Agency unilaterally revoked 4 of those reserved spaces. To the Republicans who issue these kinds of decisions, a reserved parking space is truly de minimis since they already have the money to pay for them or the chauffeur drops them off at the main entrance before parking the limo. For the vast majority of federal employees, reserved parking spaces are anything but de minimis.

As the result of a 1997 decision by our fascist Supreme Court, the Fifth Amendment's requirement that the government must always afford its employees due process before suspending or firing them was watered-down to "almost always" in those situations where there is a need for immediate action and the employee is suspended, and not fired. The MSPB eagerly adopted Gilbert v. Homar in Rawls v. U.S. Postal Service, 94 MSPR 614 (2003), where it upheld an indefinite suspension imposed on an employee with no prior notice or opportunity to respond. The employee had been arrested and charged with attempted first-degree murder (he was later convicted of "reckless endangerment") and the notice suspending him informed him that he could file a grievance within 14 days. The MSPB said this post-suspension due process was enough to comply with the Fifth Amendment. The MSPB never got around to wrestling with the fact that Mr. Homar received not just an opportunity to file a grievance, but the evidence against him (the police report) and an in-person meeting with the deciding official less than a month after his suspension began. It is exactly in this way that our fundamental rights are watered down: case by case like homeopathic medicine, where after enough cases the right has faded so much, you can't see if it still exists. It is also exactly in this way that the interests of the employer become so superior to the rights of employees that courts won't even impose the minimal hardship of requiring the employer to place an employee on paid administrative leave, if it can't abide him in the work place, for the short time it will take to afford him his due process rights.

The MSPB issued a couple of interesting decisions recently on disability retirement applications.

• In Harpole v. OPM (MSPB March 4, 2005), OPM argued that, because of the limitations placed on the MSPB's power to review security clearance issues in the Egan case, it could not consider a statement of reasons (SOR) by the agency on why the employee's security clearance was revoked in the process of deciding the employee's disability retirement application. MSPB disagreed, saying its review of the SOR was conducted solely to evaluate the effect of the employee's medical condition on her ability to perform her job and that this did not require the MSPB to second-guess her agency's reasons for revoking her security clearance .
• The employee in Hardy v. OPM (MSPB March 17, 2005), was removed from employment for excessive absences from work. The MSPB said that it couldn't overturn OPM's denial of her disability retirement application because the employee was removed for excessive absences and because the employee did not demonstrate that any medical condition or disability was the cause of her absences. In an aside typical for this Board, the decision noted there was no need to inquire into whether the employee needed assistance in her MSPB appeal due to mental problems. Although no one represented her, the Board noted her "relative coherence" in her testimony at the hearing. It is chilling to think that mentally disabled individuals deserve no help when applying for disability benefits as long as they sound "relatively coherent."