February 1998

Our Regular Reminder

This is a reminder to all our union clients of the various services available through our firm. Most of our retainer agreements provide for unlimited legal advice, on-site visits and filing and processing of unfair labor practice charges. Please do not hesitate to contact us if you would like to have one of us conduct training, meet with employees or review a case for arbitration or MSPB. 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.

Welcome New Clients

We would like to welcome all the new Union clients who have joined our group of existing clients in the last six months. We now have a relationship with the Laborers International Union of North America, AFL-CIO, advising them on federal sector labor and employment issues. Other new retainer clients are AFGE Local 1629 which represents employees at the VA Medical Center in Battle Creek, Michigan, AFGE Local 1978 which represents employees at Hoover Dam, and AFGE Local 2488 which represents employees of GSA Region 7 in Ft. Worth, Texas. Welcome aboard!

Getting Wired

We are in the process of becoming less "technologically challenged. " Soon, we will be on the Internet, we will have an e-mail address and we will also have a web-site. The important question is once we get all this stuff, will we know how to use it? We'll keep you informed.

No Right to Deny Accusations

On January 21, 1998, the Supreme Court reversed a series of decisions by the Federal Circuit and the MSPB which held that employees may not be charged with making false statements simply because they deny accusations of misconduct. Lachance v. Erickson, 13 IER Cases 1015 (1998). The case involved an employee who when asked by investigators whether he had committed a certain type of misconduct affirmatively stated that he did not. The Agency charged him not only with the misconduct but with lying about a matter under investigation. The Supreme Court said there is nothing in the law that confers on a federal employee the right to lie in response to an accusation of misconduct. We will now see whether federal agencies routinely amend proposed actions against employees if the original response denies the misconduct. The Supreme Court left employees with the choices of denying misconduct and hoping that their denials are believed, admitting misconduct or refusing to respond to the accusation at all.

Definition of Handicap

There is a serious debate now raging in the courts over whether employees can receive the protection of the Americans with Disabilities Act if their disabilities are alleviated by medication or other "mitigating measures." For example, is an employee with terrible vision whose vision is corrected to 20/20 with eyewear a handicapped individual? Is a diabetic employee a handicapped individual if a regular dose of insulin corrects the problem? The Third Circuit responded that individuals who can control a disability with medication are still entitled to the protections of the Americans with Disabilities Act in Matczak v. Frankford Candy and Chocolate Company. 7 AD Cases 1050 (3rd Cir. 1997). The Tenth Circuit gave the opposite answer in Sutton v. United Airlines, 7 AD Cases 1167 (10th Cir. 1998).

Identifying Accommodations

The Tenth Circuit issued a helpful decision for disabled employees in Woodman v. Runyon, , 7 AD Cases 1189 (10th Cir. 1997). In that case, the Postal Service argued that the employee failed to identify other positions that she might be able to perform before she was separated for disability. The Court said this type of information was more in the control of the employer than the employee. So long as the employee notified the employer of her disability and requested information about reassignment, this was enough to require the Postal Service to search for available vacancies.

Executive Order

The Federal Labor Relations Authority continues its steady retreat away from the obligations imposed by the Executive Order. In National Park Service, 53 FLRA No. 78 (1977) the Authority found that two proposals conflicted with management's rights under section 7106(a) even though they seemed to be section 7106(b)(1) proposals. The first proposal required the assignment of two employees to certain positions and the second proposal required the Agency to increase the FTEs assigned to a particular division.


Labor Contract Exclusivity

In Dunklebarger v. MSPB, 36 GERR 46 (Fed. Cir. 1997) the Federal Circuit issued a sweeping decision removing employees who are covered by a labor contract from appealing certain actions to MSPB. The Court recognized that employees have a statutory right to appeal to MSPB from "adverse actions." However, the court noted that certain other actions which can be grieved under a labor contract, such as reductions-in-force and denials of within grade increases, must be filed as grievances and may not be brought to MSPB. In Dunklebarger the Court added workers compensation restoration cases to this list. The Court said that any complaint about the failure to restore an injured employee to work which can be filed under a grievance procedure must be filed under a grievance procedure and not with the MSPB.