November 1997

In Memoriam

Our law firm joins the American Federation of Government Employees and the entire union movement in mourning the death of AFGE National President John Sturdivant. Mr. Sturdivant fought a valiant battle against leukemia, successfully winning reelection just a few months ago. His enthusiasm and leadership will be missed but his vision of a just and compassionate workplace for all federal employees will live on.

Legal and Illegal Harassment

There has been quite a bit of discussion in the past few years about what type of conduct on an employer's part is serious enough to allow the employee to file a discrimination complaint. Now the EEOC joins the debate with Cobb v. Dept. of the Treasury, EEOC No. 05970077 (1977). The complainant alleged that an official of the agency called him a "troublemaker" and a bad union president. The complainant said this amounted to retaliation for prior EEO complaints. The EEOC dismissed the complaint because the conduct alleged was not sufficiently severe or pervasive to alter the conditions of the complainant's employment.

No Smoking

President Clinton issued Executive Order 13058 on August 9, 1997, the most restrictive antismoking measure to date. On October 20, 1997, GSA issued guidance to federal agencies designed to help them implement the Executive Order by the target date of August 9, 1998. In order to be in compliance with the Executive Order, GSA recommends that designated smoking areas be enclosed and exhausted directly to the outside, that any other smoking in interior space owned or leased by the government be banned and that smoking at doorways and in courtyards be banned if necessary to protect workers and visitors from exposure to second-hand smoke.

Government Reinvention - Not Yet

A recent decision from FLRA shows that we are a long way from the change in attitudes necessary for true government reinvention. In negotiations, the union made a proposal that employees who use less than four hours of sick leave every four months be allowed to take four hours of administrative leave as an incentive award. The FLRA said the proposal was non-negotiable since OPM regulations did not provide for time off from duty as a form of incentive award for superior accomplishment. VA Medical Center, Newington, Connecticut, 53 FLRA No. 37 (1997). A classic example of a local initiative proposing a creative solution for an old problem which is then shot down because some government-wide regulation doesn't cover it.

Law Enforcement Retirement Status

The Federal Circuit issued an important decision in Bingaman v. Dept. of the Treasury, 35 GERR 1330 (Fed. Cir. 1997) explaining the types of positions that are eligible for early retirement as law enforcement positions. The court said that a position's contribution to an agency's law enforcement mission is not enough and that the key is the physical demands and hazards created by direct involvement in criminal investigation. Some of the factors the court found important for conferring the early retirement option are frequent and direct contact with criminal suspects, authorization to carry a firearm, interrogation of witnesses and suspects, working for long periods without a break, being on call 24 hours a day and being required to maintain a certain level of physical fitness.

Other New Developments

OPM issued proposed rules governing the settlement of federal employee claims involving pay, travel and leave disputes. OPM has assumed the role formerly played by the Comptroller General of the General Accounting Office. The proposed regulations adopt GAO's policy that the claims procedure is not open to federal employees who can raise their claims through the grievance procedure of a labor contract. 62 Fed. Reg. 45060 (Aug. 25, 1997). . . The NLRB has ruled that it is an unfair labor practice to conduct videotape surveillance of protected union activities. The Board said that videotaping strikers has a tendency to threaten and intimidate them. National Steel and Ship Building Company 156 LRRM 1146 (1997). . . . The Tenth Circuit explained in Taken v. Oklahoma Corporation Commission, 35 GERR 1342 (10th Cir. 1997) that discrimination on the basis of a sexual affiliation is not necessarily sex discrimination. The plaintiff charged that a supervisor promoted his girlfriend over two other female candidates for the job. The court said that even if this was true it amounted only to personal favoritism and not gender discrimination. The court said that the two women challenging the nonselection were in the same position as all men and all other women in the workplace - they were disfavored only because of the one woman's special relationship with the supervisor. . . The Seventh Circuit dealt with an alleged unconstitutional search of an employee's desk in Gossmeyer v. McDonald, 13 IER Cases 545 (7th Cir. 1997). Although public employees do enjoy a Fourth Amendment right to be protected from unreasonable searches and seizures of their property in the workplace, the court found that the workplace search in this case was valid. The employee was a child protective investigator and the employer searched her desk in response to an anonymous tip that she kept child pornography at the office. Even though the employee owned the desk and kept it locked with her own key, the court found that the seriousness of the allegations, combined with evidence that the anonymous tip was reliable, was enough to justify the search of her desk.