Lakewood, Colorado


March 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.

Right to Bargain

We were pleased to hear that the Supreme Court on March 3, 1999, upheld the FLRA's decision that federal sector unions have the right to initiate bargaining during the life of a labor contract. We still haven't reviewed the full text of the decision so we will address that in the next newsletter. The only surprise to us is that it was such a close vote, a 5-4 decision.

Rights for Veterans

Congress has now passed so many laws for veterans that its getting hard to know where and how to file a case. In 1994, Congress passed the Uniformed Services Employment and Reemployment Rights Act of 1994, Public Law 103-353. This made it unlawful to discriminate against a veteran because of the veteran's status or because of the veteran's service obligations. The law allows for complaints to be filed at MSPB. Just last session, Congress passed the Veterans Employment Opportunities Act of 1998, Public Law 105-339. Unlike the prior laws, this law contains a deadline for filing a complaint - 60 days. It also requires the complaint to be filed with the Department of Labor. It allows for liquidated damages (double damages) for willful violations and attorney's fees. It allows a complainant to file a case in federal district court. Its most confusing section amends 5 USC 3330a to require veterans to choose between their rights under the new law and their rights under the old law. Clients with questions are welcome to contact us.

Handicap Discrimination - Light Duty

In Johnson v. Brown, 26 F. Supp. 2d 147 (D.D.C. 1998), a federal judge in Washington, D.C. dealt with the situation of a disabled employee who had been reassigned to a light duty job. The VA argued it had no obligation to keep him in the light duty job. The court rejected the VA's claim that such an accommodation was beyond the scope of the law. The court said the employee was not required to show that he could perform the essential functions of the original position he held. The court allowed the employee the freedom to proceed to trial to try to prove that working indefinitely in his light duty assignment would be a reasonable accommodation. The court noted that another employee had been allowed to do so and that the evidence also showed that the Medical Center had a number of full-time vacancies, casting doubt on the VA's claim that it needed to fully utilize all its full-time positions.

No CSRA Preclusion

The Federal Circuit issued an interesting decision in Worthington v. United States, 37 GERR 214 (Fed. Cir. 1999) on the question of whether the administrative remedies provided by the Civil Service Reform Act are exclusive for federal employees. The employee in that case was wrongfully forced to work a compressed schedule. After the agency rescinded the schedule, he filed a claim in the U.S. Court of Federal Claims for back pay. This lower court dismissed the claim on the basis that he had to pursue his administrative remedies under the Civil Service Reform Act. The Federal Circuit reversed. Finding that the MSPB did not have the power to hear the case, it determined that he had the right to proceed with his claim in court for back pay.

FLRA Decisions

In U.S. Customs Service, 55 FLRA 16 (1998), the Authority concluded that a labor contract provision dealing with "tape recording" of employee investigations did not cover a new practice of videotaping employees. The Authority found that the parties had audio taping in mind when the contract was signed and that the union was entitled to bargain over the new practice of videotaping. . . In Immigration and Naturalization Service, 55 FLRA 19 (1999) the Authority issued a decision worthy of the most pinheaded medieval philosophers. For some reason, the Authority found it necessary to decide that an agency does not violate 5 USC 7116(a)(6) by implementing changes after an impasse in negotiations has been reached, unless the agency disobeys an explicit order of the Federal Service Impasses Panel. The Authority stated that it would continue to find that such conduct violates 5 USC 7116(a)(5). Member Wasserman, to his credit, issued a dissent basically saying "why are we splitting hairs over subsections? "