May 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.

Due Process Rights

We recently won a case at the MSPB in which the full Board reversed a decision by Administrative Judge Seaman. The employee was removed for reasons which were never clearly defined by the agency. Even at the hearing, the agency's witnesses offered different reasons why she was fired. The Board said this deprived the employee of her fundamental Constitutional right to fair notice and an opportunity to defend herself. The Board reversed the action in its entirety and ordered the employee reinstated. Alexander v. Dept. of Justice.

Protected Activity

Congratulations to Erica Shields, President of AFGE Local 709 on an important win in a recent decision by the Federal Labor Relations Authority. In Federal Bureau of Prisons, 53 FLRA No. 137 (1998) the Authority ruled that a one day suspension imposed on the Union president was an unfair labor practice because she was involved in representational activity at the time and because the conduct at issue did not amount to "flagrant misconduct. " , . . In a similar case, the Authority in Edwards Air Force Base, California, 53 FLRA No. 133 (1998) ruled that an employee was engaged in protected activity when he met with his supervisor to request official time and that a one day suspension imposed on him for his comments during the meeting amounted to an unfair labor practice because no flagrant misconduct on the employee's part had occurred.

Broad Scope Grievance Procedure

In Department of Housing and Urban Development, 53 FLRA No. 115 (1998) the Authority reaffirmed that employees have the right to grieve any matters of dissatisfaction related to their employment. The grievance challenged the Agency's requirement for employees to submit confidential financial disclosure reports. The arbitrator dismissed the grievance, finding that employees were required to use an appeals process provided in the regulation on financial disclosures. The Authority disagreed on the basis that nothing in the law providing for such appeals indicated that the appeals were intended to be exclusive or to prohibit grievances.

First Amendment Ruling

The Second Circuit issued an interesting decision on public employees' First Amendment rights in Harman v. City of New York, 13 IER Cases 1505 (2nd Cir. 1998). The lawsuit challenged the City's order to its employees that all contacts with the media must first be cleared with its media relations office. The Court found this to be an overbroad restriction on the right of employees to communicate their views on matters of public concern.

Compensatory Damages for EEO Violations

In another ruling showing why labor arbitration can be a good alternative to the EEO process, the EEOC decided that arbitrators have the authority to award compensatory damages. In McGuire v. Dept. of Agriculture, EEOC No. 02960010 (1997) an arbitrator ruled in favor of an employee's grievance raising EEO issues but refused to award compensatory damages. The EEOC found this to be improper and remanded the grievance to the agency for a supplemental investigation on the amount of compensatory damages. . . Clients need to be aware, however, that there is some uncertainty in the courts over whether compensatory damages are available in the administrative process. The Fifth Circuit has ruled that EEOC can award compensatory damages. Fitzgerald v. Secretary of Veterans Affairs, 75 FEP Cases 46 (5th Cir. 1997) but the Seventh Circuit has ruled that compensatory damages may be obtained only in a lawsuit filed in court after requesting a jury trial. Gibson v. Brown, 36 GERR 331 (7th Cir. 1998).

Favorable Ruling on Handicap Discrimination

The Tenth Circuit in Denver issued a somewhat surprising decision in Woodman v. Runyon, 132 F. 3d 1330 (10th Cir. 1997). The Tenth Circuit has issued some very unfavorable decisions about the rights of handicapped employees, but these decisions have involved private sector employees. In Woodman, the Tenth Circuit held that "federal employers are charged with a greater duty to ensure the employment of disabled workers than are federal grantees or private employers." According to the Court, this means that the requirements of "reasonable accommodation" are much more strict for the federal government and that the federal government must be a "model employer" of the handicapped and held to an obligation to try every accommodation that holds a reasonable prospect of success.