October 1997

Union-Initiated Bargaining: Is There Anything Left?

In theory, unions have the same right to initiate bargaining over proposed changes in working conditions as do employers. In practice, FLRA continues to fire torpedoes into this right, which has been sinking fast. No bargaining will be allowed if the topic to be addressed is already "covered by" the labor contract. Social Security Administration, 47 FLRA No. 99 (1993). This rule applies even if the original term of the contract has expired, since most contract articles continue by operation at law until a new contract is signed. We learned in INS Del Rio, Texas, 51 FLRA No. 68 (1996) that there is no "midterm" bargaining after the original term of a contract expires; unions had better be careful to use the magic words "union initiated bargaining" if they want to open negotiations in that situation. Now, a new wrinkle appears in Department of Veterans Affairs, 53 FLRA No. 32 (1997). There, the Authority held that a federal agency does not commit an unfair labor practice by refusing to bargain over particular proposals advanced by a union in union initiated bargaining. Since it is only the union, not management, trying to make a change, then no ULP exists unless the proposals being advanced by the union have already been ruled negotiable in prior FLRA decisions. Absent this kind of direct conflict with prior decisions, the union's only recourse in a union initiated bargaining situation is to file a negotiability appeal, not a ULP charge. The union can then wait the customary two to three years to find out if its proposals are negotiable. By then, most unions will have a new term contract anyway!

OIG/ "Weingarten" Rights

We now have the makings of a "war in the circuits" reminiscent of the old names and home addresses battle. The issue is whether outside investigators, such as an Inspector General's office or Office of Internal Affairs, are required to respect employees' "Weingarten" right to Union representation during investigative interviews. The Third Circuit says yes. The D.C. Circuit says no. The Eleventh Circuit recently said yes. In FLRA v. NASA, 35 GERR 1215 (11th Cir. 1997), the Court ruled that a NASA-OIG investigator was a 11 representative of the agency" even though he was not employed by the subdivision of NASA that had the bargaining relationship with the union. Less than a month later, the Second Circuit weighed in with a yes and no answer. In FLRA v. Dept. of Justice, 35 GERR 1282 (2nd Cir. 1997) the Court ruled that the DOJ-OIG was subject to the requirement to grant "Weingarten" rights even though OIG employees themselves are excluded from the Statute. However, the Court found no violation because the OIG was investigating a criminal matter having nothing to do with subjects open to collective bargaining. Of course, the topic under investigation is not supposed to mean anything; the key is whether the employee reasonably fears disciplinary action. Oh well. We will have to see what all the other Circuits say.

EEO Rulings

An encouraging decision was issued recently here in Colorado in Deavenport v. MCI Telecommunications, 74 FEP Cases 1238 (D.Colo. 1997). Judge Babcock disagreed with many recent decisions which have ruled that employees cannot bring Title VII claims unless an "ultimate employment decision" against them has been taken. He said that the law banning reprisal is broad enough to allow employees to bring lawsuits for threats, harassment, warnings and "minor" personnel actions like bad appraisals... More and more federal employees are filing their EEO cases in federal court these days, which means more and more federal courts are trying to find ways to dismiss them on jurisdictional or procedural grounds. It is especially important for employees to "exhaust" their administrative remedies before going to court. In Fitzgerald v. Secretary of Veterans Affairs, 35 GERR 1244 (5th Cir. 1997), the Court found that the employee was not entitled to reject the Agency's offer of "full relief." Employees often reject such offers if they do not include compensatory damages for emotional distress. The court noted that the employee had failed to request this type of relief at any point in the administrative process. Therefore, when the Agency offered full relief without compensatory damages it effectively gave him everything he asked for, allowing the agency to dismiss his complaint.

MSPB Cases

We field a lot of questions these days about employees who believe they were forced into a leave status. This is probably because light duty work and vacant positions for handicapped employees are drying up as federal agencies continue to "downsize. " Federal employees who have been forced into a leave status for more than 14 days can argue that they have been subjected to a "constructive suspension" appealable to MSPB. However, the only way to be sure that a claim like this will work is for the employer to initiate the leave. In other words, there must be positive evidence that the employer has placed the employee on leave without the employee requesting it, or that the employer has prevented the employee from working. In Dobler v. U.S. Postal Service, 35 GERR 1182 (Fed. Cir. 1997), for example, the agency ran out of light duty work for the employee. The employee was medically incapable of returning to his regular job and so he applied for sick leave. Even though the employee was put in this difficult position, the court agreed with MSPB that he had not been constructively suspended because the Postal Service did not tell him he could not return to his regular job. These cases get even trickier when an EEO violation is claimed. For example, what if Mr. Dobler had been able to prove that the Postal Service violated the Rehabilitation Act by taking away his light duty assignment? Would the EEO violation create a constructive suspension even if Mr. Dobler put himself on leave? We have been experimenting with cases like this and ask any clients with similar situations to give us a call . . . The Federal Circuit continues to issue strong rulings favoring enforcement of settlement agreements in MSPB appeals. In Thomas v. Dept. of Housing and Urban Developing 35GERR1214(Fed.Cir. 1997), the employee had settled an MSPB appeal by promising to resign in two years in exchange for an agency promise not to disclose adverse information about him. The agency broke that promise but MSPB ruled that the employee was still required to resign because he had signed a binding agreement to do so. The Federal Circuit disagreed, saying that the breach of the confidentiality provision went to the heart of the bargain and the court ruled that Mr. Thomas should have been allowed to withdraw his resignation.