May 1997

Register Now!

The Presidents' Conference is fast approaching! It will be held here in Lakewood on June 27, and 28, 1997. Quite a few registrations have come in but we are still trying to hold it to a small group. We will do everything possible to make sure that clients get a "saved space" at the Conference. Anyone who has not registered yet should do so as soon as possible. Registration flyers and the Conference agenda may be obtained by calling our office.

Compliance Win

We were pleased with the recent decision by the MSPB in Washington, D.C. in favor of one of clients. She had appealed her separation to the MSPB but the Agency maintained that she had resigned. The parties settled with an agreement that she would be reinstated but the agreement was unclear as to whether back pay was owed to her. The MSPB said that her reinstatement automatically entitled her to back pay since the Agency treated her separation as a resignation and never gave her any due process rights (advance notice, opportunity to reply and decision). Barton v. Dept. of the Air Force (April 11, 1997).

First Amendment Speech

The Third Circuit has ruled that informal complaints to higher level management about sexual harassment of a public employee amount to protected speech under the First Amendment. The Court said that such complaints touch on matters of public concern to all citizens. Azzaro v. County of Allegagny 73 FEP Cases 930 (3rd Cir. 1997).

FLRA Decisions

Looking at the FLRA, would you ever guess that we had a two term Democrat in the White House?

Defense Contract Audit Agency, 52 FLRA No. 118 (1997) dealt with a union's effort to enforce a partnership agreement wherein the Agency promised to bargain over section 7106(b)(1) topics. The arbitrator refused to enforce the agreement. The Authority began by noting that the statute itself set forth "permissive" subjects of bargaining and so did not compel negotiations (what about the Executive Order?). As to the arbitrator's award, the Authority found that it was completely up to the arbitrator as to how he interpreted the partnership agreement.

In Department of Veterans Affairs, 52 FLRA No. 109 (1997) the Authority refused to enforce an agreement between two unions to allow one union to take over the representation of another. The Authority said this could be accomplished only through a representation election.

The Authority issued a "magic words" decision in VA Medical Center, Martinsburg, Wes Virginia, 52 FLRA No. 96 (1997). The case involved an arbitrator's decision to raise a grievant's performance rating to "highly successful. " The arbitrator's decision was reversed. The Authority said that arbitrators who want to grant this remedy must not only make a finding that there has been a violation of law, regulation or the labor contract but they must also specifically recite that if the violation had not occurred the grievant would have received the higher rating. The Authority said that it was not enough that the arbitrator determined that the agency did not notify the grievant of his performance deficiencies so as to provide him an opportunity to improve his performance. The arbitrator should have gone ahead to recite the "magic words" that if these violations did not occur, the performance rating would have been higher.

MSPB Decisions

The MSPB issued a couple of significant whistleblower decisions. In Hupka v. Dept. of Defense, 35 GERR 624 (1997) the Board explained that informal complaints about alleged violations of the Privacy Act can still amount to whistleblower disclosures even though they might be protected under another section of the law prohibiting reprisal for filing complaints, grievances or appeals.

In Pashun v. Dept. of the Treasury, 35 GERR 625 (1997) the Board ruled that disclosures to agency investigators regarding alleged violations of regulations on the custody of handguns, failure to report an employee's arrest, intoxicated employees breaking into and vandalizing his room, and nepotism were whistleblower disclosures.

EEOC Decisions

In Randel v. Dept. of the Navy, EEOC No. 03960070 (1996) the Commission ruled that an employee's medical documentation describing a handicapping psychological condition should not have been rejected by the agency. Where authentic documentation is submitted, the Agency cannot treat the employee as though he has no handicap; it must inquire further to get additional information if it doubts what the employee has submitted.

In Turner v. Dept. of the Interior, EEOC No. 05940844 (1996) the Commission upheld a complaint about a hostile environment against Native Americans. Even though none of the racist remarks were made directly to the complainant, the Commission determined that the workplace was permeated with ridicule and insult based on national origin.

In Edwards v. U.S. Postal Service, EEOC No. 05950708 (1996) the Commission reaffirmed that employees participating or representing in the EEO process are entitled to reasonable amounts of official time. The employee was not scheduled to work on the day of his EEO hearing but requested a revision of his work schedule in order that he could be in a pay status. The Commission agreed this was a reasonable request and directed the agency to pay him at an overtime rate for the time he spent in the hearing.

A significant decision was issued by the Eleventh Circuit in Harris v. H&W Contracting Co., 102 F. 3d 516 (11th Cir. 1996). The Court ruled that an employee with a medical condition may be entitled to the protections of the ADA even where the condition is controlled by medication. The employee had a psychological condition which was ordinarily kept under control but she had an unexpected panic attack followed by an eight day stay in the hospital when a medication error occurred.