November 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.

FLRA: How Bad Can It Get?

A couple of really weird FLRA decisions are addressed in this issue. We want to commend our clients and their sister locals for supporting the five month boycott on filing FLRA charges. Its not only an expression of frustration but an expression of solidarity and we hope FLRA will get the message. Anyone who wants to sign the FLRA boycott flyer is welcome to call us and we will mail or fax you a copy.

"Magic Words"

In Defense Commissary Agency, 55 FLRA No. 61 (1999) the union proposed that a base commissary be staffed with 50 percent regular full time employees, 45 percent regular part time employees and 5 percent intermittent employees. Looks like a proposal on numbers, types and grades bargainable under the Executive Order, right? Nope. The Authority ruled that the union made no attempt to explain whether or how the proposal concerned the numbers, types and grades of employees. To his credit, Member Wasserman dissented. He couldn't figure out why his colleagues could not interpret this as an Executive Order proposal when the agency itself took it this way. Apparently, the union should have written the following statement after its proposal: "In case you can't figure it out on your own, this proposal directly concerns the numbers, types and grades of employees who will be sales store checkers in the commissary. There is a law that says management can negotiate this. It is 5 USC 7106(b)(1). There is an Executive Order that requires management to negotiate. It is Executive Order 12871. Can you say 'worthless scrap of paper'? We knew you could. "

When a Slap on the Wrist is Too Much

Don't be too frustrated by not winning cases at FLRA. Even when you do, you won't get much. In U.S. Penitentiary, Leavenworth, 55 FLRA No. 127 (1999) the Authority addressed twelve consolidated unfair labor practice complaints. After finding that the Institution repeatedly violated the labor statute, the Authority refused to require the Agency to put the name of the warden on the posting to all employees and refused to require a nondisciplinary entry in the warden's personnel file indicating he violated the labor statute. The Authority felt this wouldn't be fair to the warden since the warden did not have an opportunity to defend himself in the ULP hearing. "Given this," said the Authority "granting the remedy requested by the GC raises substantial due process considerations. " The Authority's new concern for

due process is curious. In Small Business Administration, 49 FLRA No. 152 (1994) the Authority found there was nothing wrong about an arbitrator putting the burden of proof on an employee to prove his innocence in a discipline case. In Internal Revenue Service, 52 FLRA No. 135 (1997) the Authority determined that an employee fighting a short suspension was entitled to no due process rights in the arbitration hearing, so that the arbitrator could uphold the suspension for a reason completely different than the reason originally given by management. Its a good thing for federal managers accused of unfair labor practices that they don't have to live with decisions like that. Oh, by the way, Member Cabaniss dissented from the Leavenworth ruling. Because the remedy wasn't strong enough? Not exactly. Member Cabaniss felt that the Authority should not even inform the Special Counsel that the warden had committed multiple unfair labor practices.

EEO Decisions

The decision in Crawford v. Babbitt, 186 F. 3d 1322 (1 1th Cir. 1999) is another reminder of how important it is to "exhaust" administrative remedies. The case involved a federal employee who filed an EEO complaint in federal court seeking compensatory damages for emotional distress. The Court ruled that she would not be allowed to obtain this remedy because she did not respond to the Agency's request for information on her compensatory damages claim during the administrative process.

The decision in Beaver v. Rayonier, 80 FEP Cases 1496 (11th Cir. 1999) is a good example of how to prove "pretext" in a discrimination case. An employer discharged an older worker while hiring younger employees at the same time. The employer explained that the older worker was eliminated in a reduction-in-force in order to cut costs. The employee showed that he repeatedly offered to stay on at a lower salary. The Court found this undermined the employer's cost cutting rationale and upheld a jury verdict in favor of the employee.

In Montero v. Agco Corp., 80 FEP Cases 1658 (9th Cir. 1999) the Court found that the employer had established a defense to sexual harassment under the Supreme Court's 1998 sexual harassment decisions. The employer took only 11 days to complete its investigation and then took immediate action against the harasser. The employer also showed that the employee acted unreasonably in waiting almost two years to complain about the harassment.

EEO Complaints for VA Employees

We have received a number of inquiries from employees of the Department of Veterans Affairs about the new office established for processing EEO complaints. It is called the Office of Resolution Management. You can learn more about this office and contact them on the internet at the following site: http://www.va.gov/orm.