February 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 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.

One More Chance

We are pleased to report a favorable ruling by the MSPB for our client in Tackett v. Dept. of the Air Force, a decision issued on February 3, 1999. The MSPB reversed the decision of Administrative Judge Salyer and found that Peterson Air Force Base improperly fired our client for alleged violations of a "last chance" agreement. The decision is significant because it shows that all such agreements must be enforced in good faith. For example, one of the reasons for firing the client was that she had purchased certain supplies needed for an office party without the prior written authorization required of her. Her supervisors went ahead and used the supplies anyway and just told her to get written authorization the next time. Months later they relied on this as one of the reasons for firing her! The MSPB said this minor and technical violation of the last chance agreement could not be enforced against her. Although Barrie is listed as winning the case, special credit is due to Paul Hirokawa, our legal assistant, and Mike Little, AFGE National Representative, who both provided tremendous help on the case.

The Courts are Open Again

One of the most significant decisions in recent years for federal employees was just handed down by the Court of Federal Claims in Washington, D.C. In Abramson v. United States, 37 GERR 45 (Ct. Cl. 1998) the court ruled that federal employees who are covered by a labor contract and who wish to enforce their rights under law are not restricted to the grievance procedures of the labor contract. The Federal Circuit had ruled in the 1990 decision of Carter v. Gibbs, that the grievance procedure was the sole avenue of relief for such employees if they wanted to file claims, for example, under the Fair Labor Standards Act. The court in Abramson noted that Congress amended the law after the Gibbs decision to provide that the grievance procedure of a labor contract would be the exclusive administrative remedy for employees. This means that the doors to court are once again open for federal employees who wish to enforce their statutory rights.

Watch This One

The Supreme Court has agreed to decide whether federal employees are entitled to recover compensatory damages for EEO violations in the administrative process, such as through MSPB appeals, EEOC hearings and labor arbitrations. The Seventh Circuit ruled that compensatory damages may be recovered only in lawsuits filed in court. The Justice Department disagrees with this and has asked the Supreme Court to overturn it. Strange as it sounds, we think the Supreme Court may very well side with the Seventh Circuit. The reason is the wording of the law itself. According to 42 USC 1981(a) if a complaining party seeks compensatory damages "any party may demand a trial by jury. "

New Workers Compensation Regulations

OWCP has issued new regulations covering workers compensation claims in the federal sector. The regulations were issued on November 25, 1998, and became effective January 4, 1999. There are a few important changes in the new regulations and we suggest that anyone handling workers compensation claims get a copy of them. They may be found in the November 25, 1998 edition of the Federal Register, at 63 Fed. Reg. 65284.

Protection from Weird Training

Congress has once again in this year's budget bill enacted some interesting restrictions on the type of training that federal employees may be required to attend. A copy of the new law is attached to this newsletter. Among other things, the law prohibits training that is likely to induce psychological stress or is offensive to employees' personal values or life style.

Arbitration Developments

A number of clients have called us recently regarding lists of arbitrators from other states. If you would like arbitrators to be drawn from a particular area outside your locality, FMCS is going to require you to have management sign the arbitration request form before they will provide such a list. Conversely, if you want arbitrators to be drawn solely from your area, you just need to specify this on the FMSC request form. For example, request "arbitrators from Colorado only. " . . . In SSA, 54 FLRA No. 135 (1998) the Authority upheld the award of an arbitrator who found that management did not give serious consideration to the grievant when making selections for three promotions. Interestingly, the arbitrator did not just direct a rerun but directed management to place the grievant in one of the three positions with full back pay. The Authority found this award completely proper since the arbitrator made the key finding that had the contract not been violated the employee would have been selected. . . The Authority issued another interesting decision involving promotions in Social Security Administration, Office of Hearings and Appeals, 54 FLRA No. 116 (1998). The arbitrator found that management violated the contract when it reassigned six employees without using merit promotions procedures. The arbitrator ordered management to make six new positions available and to fill them competitively. Management protested that this violated its rights under law. The Authority ruled that the remedy was not automatically illegal and that it might be proper if it reflected the arbitrator's determination of what would have happened if the contract were not violated. Instead of reversing the arbitrator's decision, the Authority sent the case back to the arbitrator for the determination of an appropriate remedy.

EEO Developments

In another case illustrating the difficulty experienced by the courts separating misconduct from a disability, the Fifth Circuit threw out a lawsuit filed by an employee with obsessive compulsive disorder. Newberry v. East Texas State University , 37 GERR 75 (5th Cir. 1998). The employee's disorder caused him to engage in such unusual conduct as excessive perfectionism and rigidly ethical behavior. The court found that he had been fired because of his work performance and lack of collegiality. Under this same reasoning, of course, an employer could fire an epileptic not because of his epilepsy by because he suffered from occasional fits!. . . The Tenth Circuit ruled in Lockard v. Pizza Hut, 78 FEP Cases 1026 (10th Cir. 1998) that an employer can be liable for sexual harassment of an employee by customers where the employer is on notice that the customers have been acting like sleaze-balls. . . The Seventh Circuit ruled in Williams v. West, 37 GERR 38 (7th Cir. 1998) that a federal employee who suffers retaliation for refusing to file an EEO complaint is not entitled to the protection of the EEO laws... In another blow to age discrimination cases, the Fifth Circuit ruled in Mullin v. Raytheon Company, 78 FEP Cases 1174 (5th Cir. 1999) that age discrimination complainants may not prove their cases through the "disparate impact" method of analysis. Disparate impact is often used to prove that a neutral policy has an unfair impact on a certain group, such as a requirement for a high school diploma. The court's decision makes it very difficult to prove age discrimination, for example, solely from the fact that most individuals affected in a RIF were retirement eligible or over 40 years old.

Labor Relations Developments

The NLRB ruled in EFCO Corp., 160 LRRM 1049 (1998) that certain employee committees were unlawful "employer dominated" associations and directed them to be broken up. The committees had back and forth dealings with the employer over working conditions and the employer dominated the committees by creating them, determining their structure and function and selecting their initial members. This same prohibition applies in the federal sector as well... Selective enforcement of no solicitation rules is an unfair labor practice. The Tenth Circuit ruled that an employer unlawfully prohibited union representatives from soliciting employees in its parking lots when it allowed other non-union organizations to do so. Four B v. NLRB, 160 LRRM 2015 (10th Cir. 1998). . . The Authority ruled in Defense Commissary Agency, 54 FLRA No. 110 (1998) that a proposal which would require management to maintain a specific number of positions at each commissary location was negotiable under the Executive Order. Even though the proposal interferes with a management right under 5 USC 7106(a) the proposal is still negotiable because it is tied to the number, types and grades of employees under another section of the law. (Now all we have to do is get agencies to follow the Executive Order!).

MSPB Developments

The MSPB ruled in Hasler v. Dem. of the Air Force, 37 GERR 49 (1998) that the federal discovery rule allowing for medical or psychological examinations is applicable in MSPB cases. Thus, for example, where an appellant has alleged severe mental distress and seeks damages for this, an agency may be allowed to subject the appellant to a psychological evaluation.

CONF. REPORT ON H.R. 4328 (P. L. 105-277)
Sec. 635. (a) None. of the funds made available in this or any other Act may be obligated or expended for any employee training that --
(1) does not: meet identified needs for knowledge, skills, and abilities bearing directly upon the performance of official duties;
(2) contains elements likely to induce high levels of emotional response or psychological stress in some participants;
(3) does not: require prior employee notification of the content and methods to be used in the training and written end of course evaluation;
(4) contains any methods or content associated with religious or quasi-religious belief systems or "new age' belief systems as defined in Equal Employment Opportunity Commission Notice N-915.022, dated September 2, 1988; or (5) is offensive to, or designed to change, participants' personal values or lifestyle outside the workplace. (b) Nothing in this section shall prohibit, restrict, or otherwise preclude an agency from conducting training bearing directly, upon the performance of official duties. Sec. 636. No funds appropriated in this or any other Act for fiscal year 1999 may be used to implement or enforce the agreements in Standard Forms 312 and 4355 of the Government: or any or-her nondisclosure policy, form, or agreement: if such policy, form, or agreement. does not contain the following provisions: "These restrictions are consistent with and do not: supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by Executive Order No. 12958; section 7211 of title 5, United States Code (governing disclosures to Congress); section 1034 of title 10, United Stares Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military) ; section 2302 (b) (8) of title 5, United States Code, as amended by the Whistleblower Protection Act: (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents); and the statutes which protect against disclosure that may compromise the national security, 9 including sections .641, 793, 794, 798, and 952 of title 18, United States Code; and section 4,(b)of the Subversive Activities Act of 1950 (50 U.S.C. 783(b)). The definitions, requirements, obligations, rights, sanctions, and liabilities created by said Executive order and listed statutes are incorporated into this agreement and are controlling.': Provided, That: notwithstanding the preceding paragraph, a nondisclosure policy form or agreement that: is to be executed by a person connected with the conduct of an intelligence or intelligence-related activity, other than 5296