October 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.

Remedies in Promotion Grievances

When challenging non-selection for a promotion through the grievance process, it is important to pay attention to the remedy. Not every violation of the labor contract necessarily entitles the grievant to a promotion. For example, failure to post a vacancy announcement for the period of time required by the labor contract might mean that the grievant would have received the promotion, but it might not. In Social Securily Administration, 54 FLRA No. 64 (1998), the Authority struck down the award of an arbitrator granting a retroactive promotion with back pay. The arbitrator found that the selection process did not meet the requirements of the labor contract and that the grievant was qualified for the job. However, the arbitrator did not find that if the labor contract had been followed the grievant would have been promoted. According to the Authority, the arbitrator could have said simply that the arbitrary nature of the selection process prevented the grievant from getting the job, but he didn't. Because of this, the Authority set aside the remedy.

New Sexual Harassment Rulings

We have received many questions from our clients regarding the significance of the Supreme Court's June 1998 sexual harassment decisions, particularly the Faragher and Ellerth decisions. These decisions focus on the circumstances under which an employer will be liable for sexual harassment perpetrated by one of its employees. The Supreme Court laid down the following rules:

1 . The employer is automatically liable if, a) a supervisor demands sexual favors in return for benefits at work or as the price of avoiding adverse consequences at work, or b) a supervisor takes an employment action against an employee as part of his campaign of sexual harassment, such as a bad appraisal or denial of a promotion.

2. In all other situations involving sexual harassment by a coworker or a supervisor, the employer is automatically liable to the employee unless the employer can prove a two part defense:

a. The employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior and;

b. The employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.

Clients with questions regarding these rules are welcome to call us.

Duty of Fair Representation

A recent decision by the Tenth Circuit illustrates the fine line between simple carelessness on a union's part, which does not violate the duty of fair representation, and errors that are worse. In Webb v. ABF Freight System, 159 LRRM 2129 (10th Cir. 1998), a truck driverwas fired because he got his truck entangled with overhanging tree branches while backing it up. The evidence showed that minor incidents like that never yielded disciplinary action. According to the Court, the union failed to investigate the accident, it told the driver he did not need to be at the grievance hearing and it made concessions in the hearing that gave the arbitration panel the message that the union had no faith in his claims. The court ruled that this behavior violated the duty of fair representation.

Recent EEO Decisions

The Sixth Circuit injected some much needed common sense into the process of evaluating whether an EEO complainant has a prima facie case. Often, especially in disciplinary cases, courts require that the complainant and comparison employees be identical in every respect. The case of Ercegovich v. Good Year Tire Company, 77 FEP Cases 1224 (6th Cir. 1998) involved an employee whose job was eliminated during a reduction in force and who was denied the opportunity to transfer to other divisions. He claimed age discrimination and pointed to younger coworkers who did receive such offers. The employer said that those other employees had different job skills and experience. The court said this was not enough to prevent the employee from going forward with his case: "A prima facie standard that requires the plaintiff to demonstrate that he or she was similarly situated in every respect to an employee outside the protected class receiving more favorable treatment removes from the protective reach of the anti-discrimination laws employees occupying unique positions, save in those rare cases where the Plaintiff produces direct evidence of discrimination."

Where a disabled employee seeks reassignment to another position as an accommodation to his disability, the employer must do more than just inform the employee that he can apply for other vacancies. Given the employer's superior knowledge about other available positions, the employer must actually work with the employee to identify those positions and tell the employee about them. Hendricks-Robinson v. Excel Corporation, 8 AD Cases 875 (7th Cir. 1998).

A medical leave of absence can be a reasonable accommodation for a disabled employee. According to the Sixth Circuit, the fact that an employee cannot currently perform his or her job does not mean that no accommodation is required. If the employee seeks a leave of absence, it is up to the employer to prove that the absence would be an undue hardship on its operations. Cehrs v. Northeast Ohio Research Center, 8 AD Cases 870 (6th Cir. 1998).

MSPB Reprisal Cases

The MSPB issued an interesting decision in Williams v. Dept. of the Navy, MSPB No. DE0752-97-0382-C-1 (1998). The employee prevailed on an appeal to MSPB from her removal from employment. After she was reinstated, she alleged that she was subjected to retaliatory treatment because her supervisor resented the fact that she won her case. The MSPB ruled that such reprisal, if proved, amounts to a failure on the Agency's part to comply with the MSPB's reinstatement order and can be raised in a petition for enforcement of the original decision.