August 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.

Updated Website

Our law firm website has been updated with a new sample newsletter and the more recent client listing. If you haven't seen it yet, check it out. The website address is http:\minahan.wld.com (note there is no "www" in the address). It's a pretty basic and boring site compared to some others (no waving flags, animated figures or fireworks) but its our site. Besides, where else could you learn that Dan was born in Waterbury, Connecticut, or that Barrie was created in the laboratory of a mad scientist in New York?

Welcome New Clients

We are delighted to welcome two new clients to our family of union retainer clients. AFGE Council 169 is an umbrella organization for all the locals in the Defense Logistics Agency. The Council president is Phil Porter of Oklahoma. AFGE Local 801 represents Bureau of Prison employees at the FCI in Waseca, Minnesota. The President is Rod Hill. Welcome aboard!

New EEOC Regulations

The EEOC has issued changes to some of its regulations for the federal sector EEO process in 29 CFR Part 1614. The regulations are designed to give the EEOC administrative judges more control over the cases. The judges must now take complete control of a case once they get it and may not remand the case back to the agency for more work. Agencies will now have only 40 days to decide whether to accept the judge's decision and, if they do not, they must shoulder the burden for appealing the decision to the EEOC's Office of Federal Operations. The regulations also abolish the former rule whereby an agency could dismiss a complaint because the employee refused to accept "full relief. " In place of this, the new regulations provide for an "offer of resolution" process whereby an agency can make a certain offer to an employee, which must include attorney's fees. If the offer is rejected, and if the employee receives less at the end of the case, the attorney's fees awarded will be reduced. We think these new regulations are fine as far as they go. We think it would be even better if EEOC could process complaints in less than 7 years!

Back Pay Computations

Congratulations to AFGE and to AFGE Attorney Stuart Kirsch for winning an important case at the Federal Circuit involving the computation of back pay. The case is Martin v. Dept. of the Air Force, decided on July 30, 1999. Mr. Martin was wrongfully fired from his job at Robins Air Force Base in Georgia and then was injured in substitute employment while his appeal was pending. After he was reinstated, the Base refused to pay him for the period of time he was injured saying he was not fit for work during this time. (Nice guys!). OPM agreed with this and so did the MSPB. The Federal Circuit said that was ridiculous and that the purpose of the back pay law is to put people in the same position they would be in if they had never been fired. Since Mr. Martin never would have taken the substitute job and gotten injured, the Base owes him for the money he would have earned during that time.

Portal-to-Portal Act

The FLRA issued an interesting decision involving employee compensation for commuting to work in Navy Public Works Center, Pearl Harbor, 55 FLRA No. 82 (1999). Ordinarily, employers do not have to pay employees for time spent travelling to work. However, the law allows an exception if there is a custom or practice of the employer transporting employees to the worksite and paying them for it. The FLRA upheld the award of an arbitrator which enforced such a custom or practice.

Telephone Testimony

A decision by the NLRB prohibits testimony at ULP hearings by telephone except in very unusual situations. Westside Painting Inc., 161 LRRM 1177 (1999). Although the case applies only in the private sector, clients may wish to refer to it when objecting to telephone testimony in MSPB or arbitration hearings, for example. The decision contains an extensive discussion about why telephone testimony raises fundamental questions about the fairness of the hearing.

EEO Decisions

An employee separated due to a RIF is not prohibited from complaining about his performance evaluations for the past 10 years on the basis that no timely complaints were filed. The case was Thomas v. Eastman Kodak Company, 80 FEP Cases 537 (1st Cir. 1999). The employee argued that she would not have been laid off but for the discriminatory job evaluations which impaired her RIF retention standing. The court said she must be allowed to prove her case because the tangible consequences of the negative appraisals did not "crystalize" until she was laid off.

The protection against reprisal for filing EEO complaints is broad. Aviles v. Cornell Forge Company, 80 FEP Cases 209 (7th Cir. 1999) involved a charge that an employer made a false police report that an employee was waiting outside the plant with a gun. The employee claimed this false accusation was in reprisal for filing an EEO complaint. The employer said that the false accusation had nothing to do with terms or conditions of employment but the court rejected this argument in its entirety.

The fallout from the Supreme Court's 1993 Hazen Paper decision continues. That decision ruled that an employer that makes decisions based on "proxies" for age does not necessarily discriminate on the basis of age. For example, an employer who decides to force employees out who are eligible for retirement does not necessarily discriminate on the basis of age. This makes about as much sense as saying that firing an employee who is pregnant does not discriminate on the basis of sex but only on the

basis of pregnancy! In Dilla v. West, 37 GERR 929 (11th Cir. 1999) an Army civilian employee filed a claim of age discrimination saying that he was denied a position because the selecting official felt he would not be around very long. He was eligible to retire much earlier than the other applicants. The court said that even if this was true it did not prove age discrimination. Weird.