July 1997

Great Conference!

We would like to thank all of our clients who attended this year's "new style" Presidents' Conference. The smaller and more informal format contributed to a great interchange of ideas among the participants, and we learned a lot as well. We will keep experimenting with new ways of putting on these conferences and we welcome your input.

Our Recent Cases

Barrie recently won an arbitration case at Robins Air Force Base, Georgia, involving an employee who had been fired for making threatening statements. The arbitrator said that the only reason management thought he was a threat was that he had been diagnosed with post-traumatic stress disorder as result of his military service. . . Dan finally got a ruling from an MSPB judge on a series of RIF appeals he filed on behalf of U.S. Geological Survey scientists who were separated in 1995. The MSPB Judge ruled in favor of a couple of the appellants but rejected the rest of the appeals on the basis that the RIF had been conducted in a legitimate manner. An appeal to the full Board will be filed soon.

Clarification on "Mid-Term" Bargaining

The D.C. Circuit recently affirmed the FLRA's confusing decision in INS Del Rio, Texas, 51 FLRA 768 (1996). The Court criticized the decision as "at best cryptic. " Some had read the decision to mean that a union has no right to initiate bargaining after the original term of a contract expires. The Court clarified that the only problem with the union's request to bargain was that it did not come from the national level of the union. After the original term of a contract expires in a consolidated nationwide unit, the Court said, any request by the union to negotiate should come from the national level. AFGE Local 2366 v. FLRA, 35 GERR 818 (D.C. Cir. 1997).

Reward for Employee's Suggestion

An interesting decision by a district court in Pennsylvania ruled that the Government created a contract with one of its employees when it adopted his suggestion for saving money. The court said that the agency suggestion program could be read to guarantee the employee a certain amount of money once his suggestion was adopted. Cooley v. United States, 35 GERR 857, (E.D. Pa. 1997).

Attorney's Fees for Leave Disputes

The FLRA issued a helpful decision for unions who want to recover attorney's fees when they prevail on disputes involving leave and other related benefits. The union won a grievance seeking the conversion of annual leave to administrative leave when a facility was closed due to weather. The arbitrator ruled that no attorney's fees were payable since no back pay was awarded, only leave. The Authority disagreed, saying that recovery of employment benefits such as leave is enough to allow an arbitrator to award attorney's fees. The Authority sent the case back to the arbitrator to decide whether an award of attorney's fees in that particular case was "in the interest of justice." Ft. Eustis, Virginia, 52 FLRA No. 142 (1997).

Claim for Disability Does Not Bar Handicap Claim

One of the most hotly contested issues in handicap discrimination law these days is whether an employee has a right to maintain a claim for handicap discrimination if he has already filed an application for disability benefits. A number of courts have dismissed EEO complaints in these circumstances, reasoning that the employee's application for disability benefits is an admission that he cannot be accommodated and so he must have no EEO case. The D.C. Circuit has joined those courts who believe this reasoning is wrong. The Court correctly concluded that a claim for disability benefits has nothing to do with whether an employee could have continued to work with reasonable accommodation and so the handicap discrimination claim was allowed to proceed. Swanks v. Washington Metro Transit Authority, 6 A.D. Cases 1544 (D.C. Cir. 1997).

A Real Bypass

The FLRA has issued a number of decisions refusing to find violations where agency management has bypassed the union and conducted surveys with individual employees. Thus, it was a pleasant surprise to see the Authority's decision in Bureau of Indian Affairs, 52 FLRA No. 134 (1997), which involved an agency which met with bargaining unit employees and solicited their opinions on three possible ways to address its budget shortfall. The Authority ruled that management improperly bypassed the union and effectively engaged in bargaining with employees directly.

New Regs on Comp Time for Wage Grade Employees

Public Law 104-201 allows the Government to pay comp time instead of overtime to wage grade employees. OPM issued regulations implementing this change on May 23, 1997. They may be found at 62 Fed. Reg. 28305. The new regulations provide for comp time instead of overtime only at the employee's request and prohibit agencies from coercing employees into choosing comp time instead of overtime.