September 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.

Recent Wins

We have enjoyed some good results in some recent cases. We share them with you here in case any of you are working on similar cases where our experiences might help you. In Dye v. U.S. Postal Service, the MSPB overturned the removal of an employee who was fired on the charge that he was misrepresenting the degree of pain he experienced in order to receive workers compensation benefits. The MSPB found the testimony from his own doctor, who supported his claim, far more persuasive than the testimony of a doctor hired by OWCP to examine him. . . . In Sampson v. Dept. of Justice, the EEOC ruled in favor of our client, who charged that she was not selected for a promotion because of discrimination. The Agency lost or destroyed virtually the entire promotion file showing the applications and ratings of the others who applied. The EEOC said this was sufficient to require a ruling in our client's favor since she had been deprived of all the evidence she needed to present her case. . . . In Grayson v. Dept. of the

Air Force, the MSPB issued a decision reinstating the client to employment after she was fired for allegedly unacceptable performance. The client was an EEO counselor and was fired for not meeting case processing deadlines. The problem for the Agency was that no one else in the office met those deadlines and the supervisor never gave her a clear benchmark as to what he expected.

Choosing Arbitrators

We have heard recently from a number of clients and from arbitrators that the FMCS is making it even more difficult to select an arbitrator from outside the state where the dispute arises. This presents some real difficulties for Union clients here in the West. Due to the small number of arbitrators who are familiar with federal sector issues, many clients have been requesting lists of arbitrators from areas with more federal installations, such as California. The best long term solution to this problem is for Union clients to negotiate agreements with management that allow the grieving party to designate the geographical area from which arbitrators will be drawn or that actually specify a panel of arbitrators. Let us know if you need any help or suggestions on such agreements.

Official Time

What FLRA giveth, Congress taketh away. In New Hampshire National Guard, 54 FLRA No. 38 (1998), the Authority found a proposal allowing the use of official time for lobbying activities to be illegal based on the 1996 DOD Appropriations Act. The Authority recognized that one of its earlier decisions approved official time for this purpose but said that it had no choice but to change its mind when a special provision was inserted in the Appropriations Act forbidding the use of official time for this purpose.

More Official Time

Congratulations to National Representative Mike Hurley of AFGE. He recently got a great decision from FSIP on official time. The panel adopted the union's proposal, which provides a bargaining unit of about 200 employees with a primary union representative on 60 percent official time and reasonable time for other representatives. Peterson Air Force Base, Colorado, 98 FSIP 72 (1988).

Other FLRA Decisions

In Social Securijy Administration, 54 FLRA No. 18 (1998) the Authority reviewed the award of an arbitrator who found that an agency violated the labor contract by not giving the grievant priority consideration for a promotion. Rather than awarding the promotion, the arbitrator directed the agency to give the grievant priority consideration for the next position and to begin paying the grievant at the higher rate of pay. The award of "front pay" was set aside by the Authority because the arbitrator had not made the necessary finding that the grievant would have received this higher pay if there had been no contract violation. . . . The Authority issued an interesting decision in Defense Commissary Agency, 54 FLRA No. 30 (1998) involving competitive areas for RIF purposes. The Authority found that a proposal requiring the Agency to reassign employees from one bargaining unit location to another to perform identical duties was negotiable. . . . In Naval Underseas Warfare Center, 54 FLRA No. 1 (1998), the Authority dealt with a situation where employees were exposed to two types of enviromental hazards that each qualified for a 4 percent rate of enviromental differential pay. An arbitrator had awarded 4 percent EDP to the employees twice for the two hazards. The Authority ruled that environmental pay differentials may not be awarded on top of each other and set aside the second award, since the employees were already getting 4 percent EDP.