January 1999

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 MSP13. 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.

Not "Covered By"

Congratulations to AFGE Local 3824 and Matt Jarvinen of FLRA's Denver Region for the great result in Western Area Power Administration, FLRA No. DE-CA-80417 (Dec. 30, 1998). This decision, by Administrative Law Judge Nash, found that Western improperly refused to negotiate over procedures and arrangements for employees given directed geographic reassignments as part of an agency reorganization. The agency argued that there was already a memorandum of agreement covering the reorganization process that mentioned procedures for directed reassignments. The union successfully countered that the same MOU contained many provisions for additional bargaining and that the parties' actual practice under the MOU was to negotiate over directed reassignments as they arose. As part of the remedy, Judge Nash ordered reinstatement plus back pay for two affected employees. Special recognition is due to Mike Hurley, AFGE National Representative, who provided the key bargaining history testimony that Judge Nash found so persuasive.

Say It Ain't So!

The new year brings some depressing news. Two of the best in the business are turning the page. Tom Gjovik, President of the United Power Trades Organization, says he won't be running for reelection. Mike Gavin, of AFGE Local 987 in Georgia, is giving up his full-time union position to return to the workplace. If you folks in those unions can't get them to change their minds, at least thank them for a job well done. These are two of the sharpest and hardest working union representatives in the entire federal sector.

Tort Claims and OWCP

One of the least understood topics in federal sector labor law is the relationship between tort law and the workers compensation statutes. Under the Federal Tort Claims Act, a person may sue the government for wrongful conduct by its managers or employees. However, the workers compensation statute says that it is the exclusive remedy for occupational injuries and illnesses, thus barring tort claims. In Farley v. United States, 37 GERR 13 (10th Cir. 1998) the Tenth Circuit decided that the best course of action when a federal employee has filed a tort claim is to put the case "on hold" until OWCP decides if the claim is covered by the workers compensation statute. The employee filed a tort claim based on various incidents of sexual harassment at work. The employee sought damages for emotional distress. Since emotional distress arising out of a workplace injury is also compensable under the workers compensation statutes, the court decided to dismiss the tort claim without prejudice to refiling once OWCP decided on coverage.

Enforced Leave

We have noticed a growing number of cases involving enforced leave in the federal sector. It probably has a lot to do with the fact that less and less light duty assignments are available for sick or disabled employees. Many federal managers, and some union representatives as well, are unaware that enforced leave is an "adverse action" appealable to MSPB once it lasts more than 14 days. Anytime an employee is given no choice but to be offwork on LWOP or on his own sick or annual leave, this is "enforced leave". It cannot be imposed on an employee without following the same proposal/ reply/ decision process required for disciplinary actions. These can be tricky cases because there will be no enforced leave if the employee chooses to be off-work. Often, for example, the employee is told that there is no more light duty available and is offered the opportunity to take leave. Even though the employee may feel she has no choice but to take the leave, there is no "enforced leave" unless the employee is told she has to take leave. Union representatives should advise employees in these situations to make it clear that they do not want to be away from work and that they will show up and do nothing, if necessary, rather than take leave. If employees are then told to sign for leave or to go home please contact us so we can consider an MSPB appeal.