April 2000


Our Regular Reminder

This is a reminder to all out 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.

Data Request Format

We are grateful to Mel McBee of AFGE Local 2382 at the VA Medical Center in Phoenix for sharing with us a copy of his standard data request format. We are attaching it to this newsletter. Mel has organized all the information that a union needs to convey into logical headings. We recommend this format to all our clients.

New EEOC Disability Regulations

The EEOC has proposed amending its Federal Sector regulations on disability discrimination. 65 Fed. Reg. 11019 (March 1, 2000), The new regulations would retain the requirement from existing regulations that "the federal government shall be a model employer of individuals with disabilities." The biggest changes would be to the obligation to reassign disabled employees. The old regulations excluded probationary employees from this obligation and also limited the obligation to other positions in the same geographic area serviced by the same personnel office. The new regulations do not prescribe such "bright line" rules. Instead, the regulations stress the need for an "interactive process" whereby employees and employers work together to find a reasonable accommodation appropriate to every situation. Thus, whether a particular accommodation, including a reassignment, is required will depend in each case on whether it poses an undue hardship on the employer. Reassignments to other offices or other geographical locations thus must be considered. The comments to the proposed regulations say that reassignment to another federal agency will be presumed to be an undue hardship, however.

Union Right to Mid-Term Bargaining

The FLRA finally resolved the issue of whether unions have the right to initiate bargaining during the life of a labor contract in Department of the Interior, 56 FLRA No. 6 (2000). The Supreme Court had returned the issue to the Authority last year, saying the Authority was in the best position to decide it The Authority ruled that union initiated bargaining is mandatory and is a statutory right. Although it did not reach the issue, the Authority's decision strongly suggests that a management proposal for a "zipper clause" which would require the union to waive its right to bargain during the life of an agreement is a permissive topic. This means that a union could refuse to negotiate over such a proposal.

Posting of Union Material on Employer Facilities

A less satisfying ruling was issued in Army Reserve Personnel Center, 55 FLRA No. 211 (2000). The employer was charged with committing an unfair labor practice by removing union e-mail from an employer sponsored electronic bulletin board. The Authority found that no unfair labor practice was committed because the employer had a policy forbidding the use of e-mail for "annoying. harassing, lewd or offensive material." This seems to us to elevate the employer's policy over the statutory right to engage in protected activity and "robust debate." The logical extension of this rule would open the door to discipline for any union representatives who use language harshly critical of management while on the employer's facility if the employer has a generally applicable rule prohibiting the use of all harsh language.


EEO Cases

The "adverse action" doctrine marches on. The federal courts in recent years have wholeheartedly embraced this new doctrine which allows them to dismiss claims of discrimination when they involve issues that the court thinks are too minor to be bothered with. In Galabya v. New York City Board of Education, 82 PEP Cases 196 (2nd Cir. 2000) a teacher who claimed that a transfer from one school to another was motivated by age discrimination was thrown out of court. The court ruled that the transfer did not materially harm him.

Similarly, in Breaux v. City of Garland, 15 IER Cases 1837 (5th Cir. 2000) the court tossed out a civil rights case involving allegations that a management official made false accusations,ordered official investigations and required one employee to under go a psychological examination. Since nobody was demoted or reduced in pay, the court felt no harm had been done!

Continuation of Past Practices

In Federal Bureau of Prisons, 113 LA 715 (Moore 1999) a new warden attempted to implement a new dress code for prison employees on the basis that he was not bound by any past practices that developed during the administration of the previous warden. The arbitrator rejected that argument and ordered the rescission of the new dress code. The arbitrator pointed out past practices develop on an institutional basis and do not depend on the identity of the management or union officials involved.