June 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.

Enforcing EEOC Decisions

We are now embarking on an effort to enforce two EEOC decisions favorable to our clients. The clients resigned in 1993(!) because of sexual harassment to which they were subjected at the Western Area Power Administration in Golden, Colorado. Western has fought the clients every step of the way, now finally losing on appeal to EEOC in March of 1998. Still, Western refuses to provide any relief to the clients at all. We have now filed a lawsuit in federal court arguing that the clients should not be required to start over again and that the only issue to be determined by the court is how much damages and other relief to award. We hope this case sets a precedent for other employees who have succeeded in getting findings of liability for discrimination but who are experiencing delay in getting their fair remedies.

OPM Proposal on Performance Appraisals

On April 20, 1998, OPM issued a proposed regulation covering retroactive, assumed and carryover ratings of record. 63 Fed. Reg. 19411. The proposal would allow retroactive changes to performance ratings as a result of a grievance or other complaint. (Nice of OPM to allow this since arbitrators and FLRA have been doing it for years). OPM continues in its proposed regulations its longstanding hostility to assumed or carry-over ratings of record. OPM says there is a strict prohibition against employees receiving an assumed rating of record and against employees receiving a rating of record that simply carries over from a prior year. This would seem to be a direct assault on performance ratings for full-time union representatives who now, apparently, are expected to go indefinitely with their last "official" ratings of record intact from before they assumed full-time representational status.

Leadership from the Executive on the Executive Order

It continues to boggle the mind how the White House will not stand behind its 1993 Executive Order requiring managers to bargain over numbers, types and grades of employees and the technology, method and means of performing work. FLRA is now pondering a decision in a series of related cases designed to determine whether the bargaining requirement imposed by the executive order is enforceable through the unfair labor practice process. OPM has filed a brief saying it is not enforceable. Of course, the question could be resolved very quickly by a simple directive from the White House to subordinate managers. However, according to an article in a recent publication, "White House officials declined to speak with BNA for this story. Morley Winograd, Director of the National Partnership for Reinventing Government, referred the request to G. Edward DeSeve, acting deputy director for management in the office of management and budget. DeSeve declined to comment. " Now there's leadership for you!

FMLA and Fitness for Duty Exams

In an interesting decision, a district court in Massachusetts was faced with an employee who was sent for a fitness for duty exam after returning from FMLA-covered leave. The court said it was contrary to the FMLA to send the employee for the exam when her doctor had already released her to return to full duty. Albert v. Runyon, 36 GERR 655 (D. Mass. 1998).

Union-Initiated Bargaining - Watch This One

The Supreme Court has agreed to decide whether federal sector unions have a statutory right to initiate bargaining during the life of a labor contract. The FLRA and the D.C. Circuit say yes, but the Fourth Circuit says that unions can negotiate only over changes initiated by management. We predict the Supreme Court will side with FLRA. NFFE Local 1309 v. Dept. of Interior, Sup. Ct. No. 97-1184.

New FLRA Decisions

In Robins Air Force Base, Georgia, 53 FLRA No. 149 (1998) the Authority emphasized the important distinction between management decisions that are bargainable in themselves and management decisions which are not in themselves negotiable and which allow for negotiations only on the impact and implementation of the decision. The case involved a charge that management relocated a pay telephone used by a group of employees in a particular work area. Management defended by saying that the change was too minor to bargain about (de minimis). The Authority said that the union was entitled to more than impact and implementation bargaining; it was entitled to bargain over the decision itself as to whether the phone would be moved. According to the Authority, if a change in working conditions is substantively negotiable in this manner, it doesn't matter how minor the impact may be, the union is entitled to bargain and management's failure to do so is an unfair labor practice.

In VA Medical Center, San Juan, Puerto Rico, 53 FLRA No. 153 (1998), the Authority stressed the difference between a charge of AWOL and a charge of failure to follow leave request procedures. The Authority explained that if an employee does not properly call in for leave, the employee can be disciplined for failure to follow leave request procedures but if the employee had a genuine need to be off work, no charge of AWOL can be sustained. This is true even if the employee does not furnish a medical certificate or other acceptable evidence to support his absence until after the employee returns to work.