September 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.

Good Luck Bill

We join many other AFGE Representatives and members in wishing Bill Guidry a happy and healthy retirement. Bill recently retired from the Defense Finance and Accounting Service at the former Lowry Air Force Base in Denver, Colorado (AFGE Local 2040). He is one of the most compassionate, intelligent and effective union representatives we have ever met. He will be missed.


We have been getting a lot of calls from clients, and even non-clients, about FLRA these days. It seems that things have gone from bad to worse and FLRA is doing everything it can to stop issuing complaints on unfair labor practice charges. People want to know "how can they do that?" Of course, its like asking how someone can speed along at 90 miles an hour. Its because they can get away with it. Look at what's happened in the last 10 years. It used to be that federal unions could fight contracting out through the grievance procedure, that they had a right to bargain during the life of a labor contract unless management could prove a "clear and unmistakable waiver," that competitive areas in RIFs were negotiable and that they could obtain data necessary for representational purposes just by asking for it. Now, almost everything is "non-negotiable." Those few things that are negotiable are "covered by the contract" to such an extent that management can force any change on employees it likes without bargaining. And now you have to be a law professor to write and justify a data request! To add insult to injury, the administration issued an Executive Order in 1993 requiring a broader range of bargaining, in return for union support for the government's downsizing initiative, and now that downsizing fever has died down, the administration refuses to enforce the Order! There's more: FLRA regional offices now want you to do all their investigations for them by providing narratives, evidence and documents, and when they decide to reject your appeal of a ULP dismissal, they give you a form letter instead of an explanation. Friends, the unions have been had. FLRA figures federal agencies won't complain if it does nothing, and unions won't complain because you can "never" complain about a Democratic administration. Get the word out to your union officers, to your Congressional representatives, and to the administration that nobody, not even Democratic politicians, gets something for nothing, and that FLRA has to change if they expect continued union support!

ADA Fallout

Now the fallout from the Supreme Court's June 1999 disability decisions begins. The Sutton decision and its companion cases adopted a narrow view of who is covered by the disability discrimination laws. According to the Supreme Court, the law does not protect from discrimination those employees whose disabilities are under control with medication or other measures. In Spades v. City of Walnut Ridge, 9 AD Cases 1015 (8th Cir. 1999) the Court ruled that a police officer who attempted suicide was not covered by the law. Even though he was diagnosed with depression, his medicines and counseling allowed him to function without limitation, the Court said. (They obviously weren't working too well the day he attempted suicide). In Weber v. Strippit, Inc., 9 AD Cases 961 (8th Cir. 1999), the Court ruled that an employee with heart disease was not covered by the Act because his dietary restrictions, difficulty walking long distances or climbing stairs without getting fatigued were only "moderate limitations." Another decision regarding heart disease with basically the same result is Hilburn v. Murata Electronics, 9 AD Cases 908 (1 1th Cir. 1999). Soon, we expect to see the first decision saying that it was okay to fire an epileptic whose condition was under control with medication, simply because the employer dislikes epileptics!

Defense to Sexual Harassment

The Fourth Circuit decided an unusual case involving sexual harassment in Brown v. Perry, 37 GERR 986 (4th Cir. 1999). The case was filed by a Department of Defense employee who was sexually harassed after a night on the town during a business trip. The court agreed with the employee that she had been sexually harassed but concluded that the employer established a defense that the employee failed to avoid the harm since the manager had previously made advances to her.

MSPB Decisions

Norrington v. Dept. of the Air Force, 37 GERR 997 (1999) involved an employee who had been placed on enforced leave for more than 14 days. The MSPB ruled that even if the enforced leave is properly imposed, it must be rescinded once the agency has been informed that the employee is again fit for duty. . Lamdahl v. Dept. of Commerce, 37 GERR 997 (1999) involved an employee who resigned after he was denied FMLA leave. The agency said it did not provide the employee with any false or misleading information. However, the MSPB ruled that the agency was required by OPM regulations to make sure that the employee understood his entitlement under the FMLA. The MSPB said that his resignation would be considered an improper removal if he presented a situation to agency management that allowed for FMLA leave and if management failed to tell him he was entitled to such leave.