October 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.

Stand Up! The FLRA Boycott

Wow! What an earful we got from last month's newsletter on FLRA. It seems just about everybody, clients and nonclients alike, is fed up with the lack of action and support from FLRA. Well, what do you do with a tool that doesn't work any more? Before you get it fixed, you've got to stop using it. Stop using FLRA. That is what we have heard from a lot of you. We're in, and the boycott is on. Starting November 1, 1999, stop filing ULP charges for at least 5 months. Obviously, you can still notify management of potential ULP's and send potential ULP's to us. We will hold onto them and make sure to call you back after a few months to see if you still want to file them (we will probably also recommend that you file union grievances, instead of ULP charges, on really important issues). It is time to send a message and to let FLRA know you've had it. If unions can't do their work because of FLRA, then FLRA needs to know that the unions can keep FLRA from working too. Take a look at the flyer attached to this newsletter. Pass it along to your friends in the union movement. If you agree with it, sign it. You can fax it to us; we will pass it along to FLRA. You can fax it to your national or district union officials. You can fax it to the FLRA Regional Office. Stand up!

Pre-Termination Due Process

The Federal Circuit in Stone v. FDIC, 179 F. 3d 1368 (Fed. Cir. 1999) issued a rare decision involving the constitutional rights of federal employees before they are terminated. The Court emphasized that federal employees must be given advance notice of the charges against them and must be allowed to review the evidence supporting the charges. If the deciding official is presented with additional charges or additional evidence without the employee knowing about it, this in itself can result in the action against the employee being reversed. The Court explained that deciding officials are prohibited from receiving new and material information about a proposed action without sharing it with the accused employee.

Handicap Discrimination: When is a Position a Position?

One of the greatest debates in disability law these days is whether disabled employees are entitled to remain in "light duty" positions that have been cobbled together for them. The restrictive view is that no employee has a right to any position unless the position is established, funded and vacant. Some courts, however, have ruled in favor of disabled employees who were reassigned to light duty work on a long term basis and who were then suddenly terminated because they no longer qualified for their original positions. Now the

MSPB has added an interesting case to this debate. Bracey v. OPM, 37 GERR 1275 (1999) involved an employee who filed for a disability retirement annuity after he was separated from employment in a RIF. The employee argued that his disability, not the RIF, was the real reason for his separation since at the time of the RIF he was in a light duty position and had already been permanently disqualified from his official position of record. The MSPB disagreed, saying that his unclassified and ungraded light duty work was a real position after all and that the RIF, not his disability, was the reason he lost his job. This case has some very interesting implications for handicap discrimination claims involving light duty work.

Contract Ratification: Who Gets to Vote?

One of the more confusing issues in federal sector labor law is the extent to which unions can exclude non-members from votes on issues affecting bargaining unit employees. NATCA, 55 FLRA No. 103 (1999) involved a union convention at which delegates voted on the type of seniority policy which would be sought by the union in collective bargaining. The FLRA ruled that the union would have violated the duty of fair representation if it took a vote of employees and allowed only union members to participate. However, there was no violation in this case because only delegates to the convention were allowed to vote and there was no vote taken from the affected employees. According to FLRA, votes like this can be limited to union representatives, who are presumed to be acting in the best interests of all employees, members and non-members alike. Like most FLRA decisions, this one makes us say "huh?" Oh well, at least the union won.

Family and Medical Leave Act

We have received a number of calls from clients about the Ninth Circuit's decision in Russell v. Dept. of the Am1y, 37 GERR 1267 (9th Cir. 1999). The Court ruled that federal employees cannot file independent lawsuits in court over violations of the Family and Medical Leave Act. This does not mean there is no remedy for FMLA violations. All it means is that whatever FMLA claims a federal employee may have must be pursued through the administrative process, such as a grievance under the labor contract or an appeal to MSPB.

EEO Developments

The court in Belfi v. Prendergast , 80 FEP Cases 1244 And Cie. 1999) issued an important reminder about the difference between Title VII claims of sex discrimination and Equal Pay Act claims. Under Title VII, an employee must prove that the employer intentionally discriminated on the basis of gender. The Equal Pay Act prohibits employers from paying men and women different wages for the same type of work and requires no proof of intentional discrimination. As an example, a federal employer might argue that it was prohibited from paying a woman higher wages because of a freeze on promotions. This might be a defense to a Title VII charge of intentional discrimination, but it is no defense to an Equal Pay Act claim.

In Showalter v. University of Pittsburgh, 80 FEP Cases 1161 (3rd Cir. 1999) the court discussed the degree of difference in ages necessary to establish a prima facie case of age discrimination. The court explained that a comparison employee in such cases must be significantly younger to raise an inference of age discrimination. The court expressed

its doubts as to whether a 40 year old employee could make out a prima facie case of age discrimination simply by pointing to a 39 year old employee who was retained. However, in the case before the court, the ruling was that a 61 year old supervisor who was discharged in a reduction-in-force did establish a prima facie case by showing that he was 8 years older than one retained supervisor and 16 years older than another retained supervisor.