March 1997

Presidents' Conference: Register Now!

Accompanying this newsletter is a flyer for the June 27 - 28, 1997, Presidents' Conference. Because we are limiting attendance to 75 individuals, we are giving our Union clients a one month head start on registration before we open it up to the public. We hope you'll agree that the topics covered by our classes are timely and interesting. We think it will be the best Presidents' Conference in a long time. We look forward to seeing as many as you as possible at the conference.

FLRA Developments

The FLRA issued a series of key decisions affecting negotiations under the Executive Order on December 31, 1996. Each of the three decisions discusses the relationship between management's rights in Section 7106(a) and the right to bargain the "Executive Order topics" in 7106(b)(1). The cases also give specific examples of what types of proposals will be considered to fall under each subsection. Clients with questions about these cases are invited to call us. The cases are: Social Security Administration, 52 FLRA No. 78 (1996), Army Corps of Engineers, 52 FLRA No. 79 (1996) and Army Corps of Engineers, 52 FLRA No. 80 (1996). . . In upholding an arbitrator's award in favor of a union, FLRA has ruled that lobbying Congress can qualify for official time under a labor contract. Army Corps of Engineers, 52 FLRA No. 93 (1997). The FLRA expressly rejected management's reliance on 18 USC 1913, a criminal statute prohibiting the expenditure of appropriated funds for lobbying Congress. In FLRA's view, the statute authorizing negotiation over official time is more specific and allows for the use of official time not just in processing grievances or in collective bargaining but also in any matter that is representational. . . An appeals court has ruled that the FLRA was correct in finding that a union had a right under the data request law to obtain a disciplinary letter given to a supervisor. The union needed the letter to see whether an employee accused of the same misconduct got the same treatment. Department of the Air Force v. FLRA, 35 GERR 160 (D.C. Cir. 1997) . . . FLRA issued a precedent setting decision involving representational issues arising from agency reorganizations in Navy Supply Center, 52 FLRA No. 97 (1997). The decision deals with the issue whether a new election is required after a reorganization or whether the previously certified union can simply take over representation in a new organization.

MSPB Developments

In Powell v. Dept. of Justice, 35 GERR 195 (1997) the MSPB ruled that an employee was not guilty of making a threat when he said that he felt like killing three managers. The MSPB noted that the comment was made to an employee assistance counselor and that it was more an expression of frustration than a threat. . . Employee representatives need to take special note of the way that the 1994 Veterans Employment Act is being interpreted by the MSPB. As reported in prior newsletters, the MSPB has ruled that it has jurisdiction to entertain any complaint from a veteran who says that any personnel action taken against him was caused by resentment of his or her miliary service or military obligation. In Duncan v. U.S. Postal Service, 35 GERR 197 (1997) the MSPB ruled that a violation occurs if prior military service is a motivating factor in the action even if it is not the sole motivating factor.

EEO Developments

The Supreme Court ruled that the prohibition against reprisal for having filed an EEO complaint protects not only current employees but former employees. The result of the decision was to allow a discharged employee to pursue a claim that he was given a bad reference by his former employer because he filed an EEO complaint. Robinson v. Shell Oil Company, 72 FEP Cases 1856 (1997). . . . The 1 lth Circuit has issued a ruling which agrees with EEOC interpretations on the definition of a person with a disability. The Court declared that a person with a disability which is completely controlled by medication may nevertheless be protected by the law. Harris v. H&W Contracting Company, 6 A.D. Cases 460 (11th Cir. 1996).