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.

Anti-Union Discrimination

The Tenth Circuit in Denver issued a decision upholding an NLRB order which may have some application to federal sector cases. In Albertsons Inc. v. NLRB, 159 LRRM 2865 (10th Cir. 1998) the court found that the employer selectively enforced its no solicitation policy against the union by allowing employees to circulate a decertification petition when it had earlier prohibited the circulation of a pro-union petition. The court also found that the employer committed an unfair labor practice by confiscating and copying the pro-union petition, even though the employer returned it to the employee three hours later.

New Handicap Discrimination Rulings

• One of the most confusing areas of discrimination law is the treatment of employees who are on a long term light duty assignment. Employers often argue that employees have no right to a light duty job because that job is not the employee's permanent job. However, in Johnson v. Brown, 36 GERR 1317 (D.D.C. 1998) a federal district job in Washington, D.C. ruled that a VA employee was entitled to a trial to show that he could perform the essential functions of his light duty job. The employee was a janitor who could no longer perform the duties of his original position but he had been accommodated with a light duty assignment in the operating pack room. After he was separated from employment, the medical center continued to employ others in light duty assignments. The court ruled that the employee raised a legitimate question as to whether the light duty job was a full-time position and he should be allowed to prove this at trial.

• The Tenth Circuit ruled in Griffin v. Steeltek, 8 Ad Cases 1249 (10th Cir. 1998) that even a non-disabled job applicant has a right to complain if he is subjected to unlawful preemployment inquiries about whether he has a handicapping condition.

• The Supreme Court let stand a decision concerning reasonable accommodation by the Eighth Circuit in Keever v. Middletown, Ohio, 8 AD Cases 388 (6th Cir. 1998). This decision reaffirmed the general rule that a handicapped employee is not entitled to insist on the "best" accommodation for his disability, so long as the option offered to him was reasonable. The employee complained that the reassignment opportunity the employer offered was not as desirable as other options but the court held that he was not entitled to quit his job under these circumstances.

FLRA Decisions

• The Supreme Court has agreed to resolve a conflict among the circuit courts as to whether federal employees are entitled to union representatives in "Weingarten" interviews conducted by Inspector General personnel and other investigators not associated, with the local employer.

• In Air Force Materiel Command, 54 FLRA No. 90 (1998) the Authority ruled that the Agency committed an unfair labor practice by unilaterally implementing a voluntary separation incentive program without negotiating the impact and implementation with the union.

• In Dept. of Health and Human Services, 54 FLRA No. 106 (1998) the Authority held that an arbitrator has the power to award public transit subsidies as a remedy for a labor contract violation. Contrary to the agency's argument, the Authority ruled that public transit subsidies constitute pay, allowances or differentials within the meaning of the Back Pay Act.

• The Authority issued a very strange, and dangerous, decision in McGuire Air Force Base, New Jersey, 54 FLRA No. 108 (1998), in which the complaint alleged that the agency discriminated against a union officer by reclassifying his position downward in retaliation for protected activities. The Authority adopted a hypertechnical interpretation of the law by ruling that a discriminatory downgrade could never amount to unlawful discrimination under the Statute because matters relating to the classification of a position are excluded from the statutory definition of "conditions of employment. " This is hard to understand. The fact that Congress removed classification matters from the scope of bargaining does not prove that Congress intended to allow antiunion discrimination in the field of position classification. Fortunately, the Authority left the door open at the end of its decision for a ruling in some future case that conduct of this nature might be an independent violation of 5 USC 7116(a)(1).

EEO Claims at MSPB

In McDonald v. U.S. Postal Service, 36 GERR 1325 (1998) the MSPB overruled its prior cases and decided that an employee who files an MSPB appeal and wishes to allege discrimination has an absolute right to a hearing. Previously, MSPB administrative judges had the power to dismiss EEO allegations from an appeal without a hearing if they found the allegations frivolous or unsupported by the paperwork the employee filed. Now, an employee can be assured of a hearing simply by claiming that the action challenged amounts to a particular type of discrimination.