March 2000

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 as 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.

Not "Covered By"

We are delighted to report that the FLRA has issued a final decision upholding an earlier ruling by Administrative Law Judge Nash in Western Area Power Administration, 56 FLRA No. 2 (2000). The case involved the implementation of a reorganization plan at Western under which a number of employees were to be reassigned or have their positions eliminated. The union and management had signed a "transformation agreement" and management claimed that no more bargaining was needed after the agreement was signed. The FLR.A. disagreed, on the basis that the agreement itself made reference to the union's right to pursue more bargaining once the impact of the agreement on affected employees became clear, As a result, two employees who were reassigned or removed in the reorganization were ordered to be reinstated with back pay. The case shows how important it is for unions to preserve their bargaining rights using explicit language in their labor contract. Congratulations to FLRA's Matt Jarvinen and AFGE's Mike Hurley, whose solid presentations won the case!

"Failure Report" Offense Mitigated

Barrie just obtained a favorable ruling for a Bureau of Prisons employee in Auden v. Department of Justice, MSPB No, DE-0572-00-0012-1-1. The employee was fired because he failed to report that other employees physically abused an inmate. The employee noted that the incident happened over 3 years earlier and that a supervisor was also present who was not disciplined at all. Based on these factors and on the employee's many years of unblemished service, the MSPB reinstated the employee with a suspension.

New Sick Leave Regulations

OPM has announced its intention to amend the regulations governing sick leave to permit employees to use up to 12 workweeks of sick leave to care for a family member with a serious health condition. 65 Federal Register 6339 (February 9, 2000). The current limit is 13 days for this purpose. This is a real improvement over the Family and Medical Leave Act, which guarantees the same amount of lime off, but doesn't require that it be paid leave.

First Amendment Rights

The case of Van Ee v, Environmental Protection Agency, 38 GERR 212 (D.C. Cit. 2000), involved an EPA scientist who was prohibited from making comments on proposed EPA regulations as a member of a public interest group. EPA said this was a conflict of interest, but the appeals court said he had a right to engage in this activity so long as it did not relate directly to a matter he was working on in his job at EPA.

Federal Employee's Right to Proper Notice of Discipline Discipline

The MSPB issued an interesting decision in Clark v. U.S. Postal Service, 38 GERR 283 (2000), involving an employee who claimed he was not properly served with a notice of proposed removal. The employer noted that the employee was handed the notice. The employee said he was too upset to deal with it and refused to sign for it. Since the employer made no subsequent effort to ensure that the employee got the notice, the action against the employee was reversed,

No "Self-Help" for Sexual Harassment

In Cruz v. Coach Stores, Inc. 8i FEP Cases 1762 (2d Cir. 2000), the plaintiff was fired for slapping a coworker who was making sexually degrading remarks to her. The court disagreed with the plaintiff's claim that this was protected "opposition" activity given that the employee had ether alternatives to belting the harasser.

Access to Court

Federal employee representatives know how hard it can be to file eases in court In most instances. the employee is told that his or her exclusive remedy lies in some administrative process, like the grievance/arbitration process,

MSPB or the EEO process, In Collins Bender, 195 F.3d 1076 (9th Cir. 1999), however, the court allowed a Medical employee to bring a civil rights action against his supervisor and two fellow employees. These individuals arranged for his home to be searched after he was placed on administrative leave. The court ruled that this improper and warrantless search of the employee's home could be the basis for a lawsuit in court and did not require the employee to exhaust any administrative remedies under the Civil Service Reform Act.

FLRA Decisions

A good reminder of the power of 5 CSC 7106(b)(3) in bargaining is Department of Veterans Affairs, 55 FLRA No. 185 (1999). Under this section of the law, proposals that directly interfere with management's rights are negotiable, so long as they represent "appropriate arrangements" for employees adversely affected by the exercise of those rights. The union proposal at issue would require management to establish one-year "transition" positions at certain locations affected by government downsizing. Even though the proposal interferes with the right to hire and determine organization, the FLRA ruled it was an appropriate arrangement for employees adversely affected by downsizing.

What is the relationship between the disability discrimination laws and a labor contract? This issue was presented to the Authority in VA Medical Center, Togas, Maine, 55 FLRA No. 192 (1999). An employee was given a permanent day shift as an accommodation for a disability, The union (for some reason) grieved on the basis that the labor contract required rotation of these assignments and gave preferences by seniority, not disability. The arbitrator granted the grievance and the FLRA denied management's appeal. The FLRA agreed with the arbitrator that an accommodation which violates a labor contract is not a reasonable accommodation.