July 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.

Sexual Harassment - Supreme Court Rulings

Most of you have probably heard of the Supreme Court's three recent rulings on sexual harassment in the Faragher, Burlington and Gebser, cases. It would be difficult to cover all the major points in this newsletter but, in large part, these rulings were favorable to employees. They establish that employers are generally liable for the harassing conduct of their supervisors and that employees do not need to quit their jobs or be turned down for a promotion in order to have the right to complain about sexual harassment. Clients with questions about these decisions are welcome to contact us.

Important Ruling on Performance Appraisals

Congratulations to Kevin Fornelius of AFGE Local 1592 at Hill Air Force Base for obtaining an excellent ruling in Hill Air Force Base, Utah, 54 FLRA No. 49 (1998). The case involved the award of an arbitrator who directed management to raise a performance rating to the same rating the employee received the year before. Management appealed on the basis that an arbitrator can't just raise a rating to the last year's rating as a remedy. The Authority said it would have agreed with management if the remedy had no connection to the violations found by the arbitrator. However, under Kevin's guidance, the arbitrator specifically explained that in the absence of the violations of the labor contact the employee would have received the same rating he got the previous year. The Authority upheld this award, saying that all the arbitrator has to do once he finds a violation is to state that the evidence presented to him is sufficient to determine what the rating would have been without the violation.

Executive Order Obituary

It came as no surprise when FLRA on June 19, 1998, ruled that the 1993 Executive Order requiring agencies to negotiate over "permissive" subjects is not enforceable through the unfair labor practice process. Although the Executive Order contains a mandatory direction from the President to his subordinates, the Authority declared that it is only enforceable by the President through informal means and that it did not reflect a legally binding election on the President's part to bargain over numbers, types and grades of employees or technology, methods and means of performing work. We continue to be appalled that federal agencies would so brazenly disobey the President's order in this manner. The long term solution, apart from getting a President with some backbone, is to negotiate a commitment to bargain over these "permissive" topics into each labor contract.

Federal Circuit Rulings

The Federal Circuit issued two very interesting rulings on the rights of physically disabled employees. Vidal v. U.S. Postal Service, 36 GERR 706 (Fed. Cir. 1998) involved an employee who was fired for poor performance because he could not operate a complicated machine. The employee had been involuntarily reassigned to work with the machine against his will. The Court determined that it did not "promote the efficiency of the service" to fire an employee for his inability to perform a job he never wanted, when he had been performing satisfactorily in his previous job. We hope this ruling breathes new life into the requirement that all adverse actions "promote the efficiency of the service. "

The Court's decision in New v. Dept. of Veterans Affairs, No. 97-3152 (April 27, 1998) involved an employee who was fired for refusing to accept a job offer after a workers compensation injury. The employee feared that the position offered would endanger her health. The Court emphasized that even though the agency determined that the job offer was a suitable placement, OWCP had not made this determination. The MSPB had ruled that the employee was not deprived of her job restoration rights but had instead been fired for simple insubordination. The Court flatly disagreed saying that the employee's refusal to work was directly related to her compensable injury and that firing her under the circumstances denied her restoration rights under the workers compensation statutes.

Other New Rulings

Congress in 5 USC 3307 has allowed agencies to prescribe rules under which employees may not be hired if they are over a certain age. These rules operate as an exemption from the Age Discrimination and Employment Act. In Reed v. Reno, 36 GERR 708 (6th Cir. 1998) the Court upheld the decision of the Justice Department that all employees working within federal prisons, including accounting technicians and medical lab workers, are "law enforcement officers" and thus covered by the requirement to be no more than a certain age when they are hired. . . . The Second Circuit issued an interesting ruling which may be appealed to the Supreme Court. In Harman v. New York Cily, 36 GERR 707 (2nd Cir. 1998) the Court invalidated a city policy requiring all employees to clear statements with the media through City agencies first. The Court ruled this blanket restriction on free speech was far broader than necessary to address the City's legitimate concerns. This ruling may have some applicability in the federal sector to the extent that federal employees are given blanket instructions not to comment to the media on anything involving their jobs before obtaining agency permission. . . . In Keever v . Middletown, Ohio, 36 GERR 677 (6th Cir. 1998) the Court reaffirmed the well-established rule that handicapped employees are not always entitled to the very best accommodation or to the accommodation they prefer. The Court ruled that reassigning a handicapped police officer to a desk job was a reasonable accommodation even though he felt that it diminished his responsibilities and was demeaning. This is similar to the rule in reductions in force where an employee cannot choose between placement offers which all involve jobs at the same series and grade.