December 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.

The Litigation Machine

AFGE National Representative Mike Hurley has been hitting them out of the park. Mike shared four of his recent arbitration victories with us (the man doesn't know how to lose) and they may be helpful to other Union clients. In Federal Bureau of Prisons, FMCS No. 99-09430, Arbitrator Martin Lubow reduced a 5 day suspension for sleeping on the job to a 1 day suspension largely on the basis that another employee accused of the same offense got a 1 day suspension. In VA Regional Office, FMCS No. 97-20382, Arbitrator John P. Linn overturned a management decision to deny official time for attendance at Union training, including attendance at one of our own law firm training classes! The decision contains an extremely thorough discussion of the right to official time for Union training. In Rocky Flats Field Office, FMCS No. 99-05741, Arbitrator Bennett Aisenberg ruled that the employer violated the labor contract by refusing to allow a group of employees to work a compressed work schedule. Perhaps the most interesting decision is another decision from the Rocky Flats Field Office: FMCS No. 99-05883. Faced with a serious unfair labor practice, the Union had the foresight to process it through the grievance procedure rather than to file it with the FLRA. The case involved management's decision to deny a group award to the Union president. It was clear that she was denied the award mostly because she spent so much official time on union business. Arbitrator Lazar not only directed management to pay her a $1,000.00 award, with interest, but also directed management to present it to her in an open meeting and to post his decision on the bulletin board. What are the chances that FLRA would ever issue a remedy like that? A copy of the award sheet is attached to this newsletter.

Disability Cases

A couple of new circuit court decisions clarify and improve the law covering disabled employees. In Norville v. Staten Island University Hospital, 9 AD Cases 1660 (2nd Cir. 1999). The Court ruled that an offer of an inferior position is not a reasonable accommodation. The courts often say that disabled employees are only entitled to an accommodation, not necessarily the best accommodation they would prefer. However, the Norville case clarifies that offering a disabled employee a demotion to another job is insufficient if another position at the same grade is available which he or she is able to perform. . . . In Davoll v. Webb, 9 AD Cases 1533 (10th Cir. 1999), the employer argued that the employee should not be able to seek reassignment as a remedy in court because she did not ask for reassignment when she

was removed from her position. Ordinarily, employees are expected to engage in an "interactive process" with their employers to identify and develop reasonable accommodations for their disabilities. In this case, however, the employer had a written policy stating that it would not reassign disabled employees to other positions. The Court ruled that there was no need for the employee to engage in the "futile gesture" of asking for something that the employer already said it would not do. We think this doctrine may have applications to other cases involving disabled employees.

Priority Placement for NG Technicians

We want to remind clients with members who are military reserve technicians of a law passed in 1996. The law is at 5 USC 3329 and it provides that military reserve technicians who are separated from technician service after 20 years have the right to be enrolled on the Department of Defense's priority placement program.

Presents from Congress

Appropriations time is so much fun. Congress buries all sorts of tidbits in the annual funding bills, some of them good for federal employees and some not so good. This year's major funding bill, Public Law 106-58, contains the following interesting provisions:

Section 622 docks the pay of any federal manger who attempts to interfere with an employee's communication with Congress, or who takes any job related action against the employee for this.

Section 625 contains the now familiar prohibition on weird training. It outlaws the expenditure of funds for employee training that "contains elements likely to induce high levels of emotional response or psychological stress" or "contains any methods or content associated with religious or quasi religious belief systems or 'new age' belief systems" or "is offensive to or designed to change participants' personal values or lifestyle outside the workplace."

Section 629 prohibits the disclosure of employee home addresses to labor unions unless the employee has consented.

Section 632 is a little strange. It prohibits the expenditure of federal funds for "publicity or propaganda purposes" and provides that "an employee of an agency shall use official time in an honest effort to perform official duties. What's up with this?

Section 647 says "notwithstanding any other provision of law, a woman may breastfeed her child at any location in a federal building or on federal property, if the woman and her child are otherwise authorized to be present at the location. Score one for the breastfeeding lobby.

Marcy A. Nicks Award, p.7.

Thus, assuming as a "fact" that the awards constituted "team" or "group" awards, and recognizing that the Grievant was in fact a member of the "team" or "group", and that all members of the "team" or "group" received awards except the Grievant, a prima facie case is established showing that the Agency denied to the Grievant fair and equitable treatment.

The Agency, under appropriate procedures, granted to the Grievant "official time" for the performance of protected activities. In the granting of Awards to a "team" or "group" under the provisions of RFFO, fair and equitable treatment must be applied to all members, including a member, as in the facts and circumstances of this particular case, who is engaged in protected activities on "official time".


1. The Agency is in violation of the Contract. (Article 10, Sections 1 and 2).

2. The Grievance is granted. The Grievant is entitled to a monetary award in the amount of $1,000.00, with interest.

3. The award should be presented to the Grievant in the Manager's information meeting which is held monthly. This Award shall be posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material.

Dated: August 22, 1999