MINAHAN AND SHAPIRO, P.C.
ATTORNEYS AT LAW
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 yon need help or feedback researching any legal issue on federal sector employment.
Offense Du Jour: Internet Abuse
Now that so many federal installations have Internet access, management is going nuts disciplining employees for looking up inappropriate websites. The prospect of employees using the net to engage in idle chat, trade on the stock market or peruse pornography is a PR nightmare for management officials. We agree that government equipment should be used for government business, but we also think the punishment should fit the crime. Quite a few of our union clients have referred members to us who have been fired or demoted for relatively minor instances of internet misuse. Clients who have encountered such cases are invited to call us for any help they may need.
National Guard Bargaining
The FLRA issued a decision covering many aspects of negotiations for civilian technicians in the National Guard. In New York National Guard, 55 FLRA No. 153 (1999), it found that proposals that would require management to maintain a certain number of positions in the wing were "numbers, types and grades" proposals negotiable under the Executive Order. It rejected management's claim that the fact. that the proposals might affect military members did not take them out the scope of bargaining. The FLRA declared a proposal to be non-negotiable because it would violate the policy that a full-time civilian technician may not supervise an individual with a higher military rank than his own military rank. The FLRA also ruled that a proposal which relates to a military assignment or attempts to influence a military decision is non-negotiable
The FLRA issued a couple of other interesting decisions recently. In Social Security Administration, 55 FLRA No. 160 (1999) the Authority ruled that the agency violated the statute by negotiating a last chance agreement with an individual employee- According to the Authority, this amounted to a unilateral change in working conditions and a bypass of the union, despite the fact that only one employee was involved. .. In another SSA case, reported at 37 GERR 1594 (1999) the Authority upheld the award of an arbitrator who enforced a partnership agreement between SSA and AFGE. The agency argued that the award was contrary to law because it forced the agency to bargain over permissive subjects in S USC 7106(b)(1). The Authority observed that the agency had elected by contract to negotiate over these matters and the arbitrator was simply enforcing this contractual obligation.
The MSPB issued a couple of helpful decisions reminding its administrative judges of how they should be conducting hearings. In Geregory v. FCC, 84 MSPR 22 (1999) the Board ruled that a high-level management official whose presence in a hearing room could be intimidating to witnesses should be excluded from the room. In Chang v. Dept. of Agriculture. 84 MSPR 144 (1999) the Board ruled that an administrative judge should not rely on her own observations regarding an appellant's attitude and behavior at the hearing as proof that the appellant engaged in the charged misconduct. Further, said the Board, the administrative judge should have excluded evidence that the agency offered the employee the opportunity to retain her employment if she would obtain medical treatment and waive her appeal rights. The agency said this evidence was relevant on the issue of whether it had fairly evaluated the appropriate penalty. The Board said that for reasons of policy evidence of failed settlement negotiations should not be admitted.
OPM has posted a model plan for employing people with disabilities on its website ( www.opm.gov ). The plan contains wonderful pronouncements about the way federal agencies should be recruiting, promoting and accommodating federal employees with disabilities. We all know that the gap between policy and practice is as wide as the Grand Canyon; still, union representatives handling handicap discrimination cases should take a look at these policies and use them in cases where the government has fallen short of these goals . , The Tenth Circuit issued an interesting decision involving the "futile gesture doctrine" in Davol l v. Webb, 194 F. 3d 1116 (10th Cie_ 1999). A group of Denver employees with disabilities sued the City for refusing to consider them for reassignment to other available positions. The City argued that they should not be allowed to make this claim because they had not actually requested reassignment at the time the employment action was taken against them_ The Tenth Circuit ruled this would have been a "futile gesture" because the City already had a written policy stating that it would not reassign handicapped employees to other positions. This could be a helpful decision in other eases where employers accuse employees of failing to initiate the "interactive process" by requesting various accommodations at the time a problem arises.