April 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.

New ADR Legislation

On October 30, 1998, Congress passed the "Alternative Dispute Resolution Act of 1998", Public Law 105-315. The Act encourages the use of arbitration as an alternative to federal district court lawsuits. This is an excellent idea which could save a considerable amount of time and money, especially for federal employees who wish to pursue discrimination claims in court. The Act requires the consent of both parties. A significant weakness in the Act is that either party has the right to request a trial once the arbitration award is issued, thus preventing the arbitration award from becoming final and binding if one party is dissatisfied with it.

Mid-Term Bargaining

As noted in last month's newsletter, the Supreme Court on March 3, 1999, reversed a decision by the Fourth Circuit which had said there was no statutory right for a union to initiate mid-term bargaining. The decision was reported at 37 GERR 288. It is a strange decision. It was decided by a close 5-4 vote. The majority opinion finds that the language of the statute itself is completely unclear. This surprises us, as we think the statute plainly requires either party to bargain at any time upon the request of the other. The court said that the statute could be interpreted almost any way. Based on this, the court sent the case back to FLRA since FLRA is the primary agency charged with interpreting the statute. This basically leaves it up to FLRA to decide whether unions have a right to initiate bargaining during the life of a labor contract. This is troubling given the shifting political views of FLRA over the years. We can expect the question to be answered in diametrically opposite ways in the years to come depending on the composition of the three member authority.

New FLRA Decisions

In Air Force Flight Test Center, 52 FLRA 21 (1999) the Authority upheld the award of retroactive promotion with back pay in a duty to bargain case. The agency unilaterally eliminated career ladder promotions. The Authority found that part of the remedy should include retroactive promotions with back pay for those employees who would have been noncompetitively promoted under the career ladder policy. . . In another case involving back pay, the Authority disapproved the award of back pay for lost overtime in VA Medical Center, Coatsville, Pennsylvania, 55 FLRA 23 (1999). This was not a case where the agency neglected to rotate overtime assignments among bargaining unit employees according to the overtime roster. Rather, the agency decided not to use the roster at all and to have supervisors perform the overtime work. An arbitrator found that this violated the contract and awarded back pay to the bargaining unit employees who would have performed the work. The Authority concluded that the assignment of the work to supervisors instead of bargaining unit employees was a management right and so the back pay award was improper.

EEO Rulings

In Glover v. South Carolina, 79 FEP Cases 276 (4th Cir. 1999) the court determined that the protection for employees who testify in EEO proceedings is absolute. During a deposition, an employee accused a management official of destruction of documents, waste of funds, and dishonestly. The employee was then reprimanded. The court found that it did not matter whether the employee's testimony was false or outrageous; she was absolutely protected for statements made during the deposition because that was part of her participation in the processing of the EEO case. . . Jones v. Corrections Corp., 8 AD Cases 1561 (D.Kan. 1998) is an interesting case on drug testing. The employee tested positive for marijuana on a random drug test and then refused the "accommodation" of enrollment in a drug program, on the basis that he didn't have a drug problem and the test was erroneous. The court ruled that he had a right to pursue a lawsuit on the basis that he was "regarded as" having a handicapping condition under the Americans with Disabilities Act. The court cautioned that the employee will be required to show that the employer's belief that he was a drug user was mistaken.

Security Clearances

It continues to be almost impossible to do anything about the denial of a security clearance. In Ryan v. Reno, 37 GERR 312 (D.C. Cir. 1999) the court dismissed a civil rights lawsuit because it involved a security clearance determination. The case involved four applicants for employment with the Justice Department. They were denied security clearances and job offers to them were withdrawn, they said, because of their national origin. The court ruled that it cannot ask the government to provide a legitimate non-discriminatory reason for its action without violating the Supreme Court's command in Egan v. Dept. of the Navy, that security clearance denials are not open to review.