December 1997

Reminder on Union Retainers

We would like to remind our Union retainer clients of the various services available through our firm. Most of our retainer agreements provide for unlimited legal advice, onsite visits and filing and processing of unfair labor practice charges. As busy as we often are, we tend to assume that clients are satisfied with our services and that if they need something, they will call. Please do not hesitate to contact us if you would like to arrange for one of us to visit to conduct training or to meet with employees to review pending cases. We are also just a phone call or a fax away if you need help or feedback researching any legal issue on federal sector employment.

New RIF Regulations

OPM on November 24, 1997, issued new regulations governing reductions-in-force and within grade increases. 62 Fed. Reg. 62495. These regulations deal with the important issue of RIF service credit based on performance appraisals and with other miscellaneous issues concerning RIF notices and the within grade increase process. Clients with questions about the regulations are welcome to contact us.

FLRA Decisions

The Authority issued an interesting decision in FAA, Louisville, Kentucky, 53 FLRA No. 42 (1997). The Union filed a ULP charge when the agency refused to implement an agreement reached during partnership meetings. The Agency protested that partnership discussions do not meet the definition of traditional bargaining. The Authority disagreed, saying any agreement between an agency and a union is enforceable regardless of the procedures used to reach it.

On the negative side, the Authority decided in EEOC, 53 FLRA No. 54 (1997) that the six month period allowed for filing a ULP charge to enforce an arbitration award begins when the award becomes final and binding. Apparently, unions are now required to assume that agencies will not comply with arbitration awards as soon as they are issued and to file ULP charges at the earliest opportunity.

Disability Rulings

The Tenth Circuit issued an important decision in Den Hartog v. Wasatch Academy, 7 A.D. Cases 764 (10th Cir. 1997). Although the employee lost the case, the court made a very helpful ruling concerning the relationship between disability and employee misconduct. Some courts have indulged in the fiction that if an employer fires an employee for misconduct caused by a disability, then there is no disability discrimination because the misconduct is the immediate cause of the action. The Tenth Circuit explained that Congress has allowed this type of defense only in alcoholism cases, where alcoholic employees can be disciplined for alcohol related misconduct so long as the same punishment is applied to non-alcoholics. In all other areas, however, if an employee's misconduct is caused by his disability then the employer cannot discipline or discharge the employee without making some effort to accommodate the disability. In some cases, the misconduct may be so severe that the employer cannot tolerate it, but the employer will be required to show this as part of its burden of proving "undue hardship. "

And now a candidate for "bone-head decision of the year. " In Breen v. Dept. of Transportation, EEOC No. 03970016 (1997), the EEOC strained to find any reason to agree with the decision of the MSPB, which had upheld the employee's removal for poor performance. The employee complained that the agency refused to consider information about her medical condition which she submitted in response to the proposed removal. The EEOC ruled that this was too late to submit the medical information for the first time, because the agency had already decided to fire her. Now we know what we have always suspected, which is that the proposal and reply process is just a useless exercise.

In a case illustrating the relationship between handicap accommodation and disability retirement, the Federal Circuit ruled that a disability retirement application must be denied if an employee declined reassigranent to another position that would have been within his medical restrictions. Matthews v. OPM, 97-3350 (Fed. Cir. 1987).

An interesting decision on drug testing was issued by the Second Circuit in Buckley v. Consolidated Edison Company, 7 A.D. Cases 794 (2nd Cir. 1997). The employee claimed that he was fired because he was unable to produce an urine specimen on demand for drug testing, due to a chronic bladder condition. The Court agreed that the employer erred by firing the employee without taking his disability into account.

No "Pretext-Plus" Required

One of the continuing debates in the courts is whether an employee is required to provide direct proof of discrimination in addition to proving that the employer's explanation for the challenged action is unworthy of belief. In Kline v. Tennessee Valley Authority, 75 FEP Cases 386 (6th Cir. 1997), the Court said that a jury has the discretion to rule in favor of an employee who proves that the employer's explanation is a lie and that the employee is not required to put forth additional direct evidence of discrimination in order to win.


The MSPB has joined the EEOC in ruling that a federal employee's receipt of workers compensation benefits for job stress does not prevent him or her from recovering compensatory damages for depression and anxiety resulting from discrimination. Markiewicz-Sloan v. U.S. Postal Service, 35 GERR 1477 (1997).

The courts have now issued a number of rulings under the 1993 Family and Medical Leave Act. This statute provides that employees are entitled to a certain amount of excused absences from work per year as a matter of right and that employers may not discipline or discharge employees for such absences. By and large, the absences covered by the statute are those necessitated by a serious health condition of the employee or- family member. In Victorelli v. Shadyside Hospital, 4 W.H. Cases 2d 321 (3rd Cir. 1997), the Court ruled that a peptic ulcer disease that caused an employee to miss work for a single day qualified as a serious health condition. In Price v. Ft. Wayne, 117 F. 3d 1022 (7th Cir. 1997), the Court ruled that several health conditions, none of which is a serious health condition by itself, may when added together over a period of time constitute a serious health condition.

Union clients should be aware of a new statute which authorizes a leave transfer program for federal employees affected by major natural disasters or emergencies. Section 9004 of Public Law 105-18 says that such a leave bank may be established after the President declares an emergency or major disaster. OPM has now proposed regulations governing such leave transfer programs. 62 Fed. Reg. 59301 (Nov. 3, 1997).