August 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 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.

Sexual Harassment Decisions

Two interesting rulings were issued recently about what an employer must do to respond properly to a sexual harassment complaint. In Henderson v. Simmons Food, 83 FEP Cases 279 (8th Cir. 2000) the employer was found liable for sexual harassment when it failed to conduct an adequate investigation. The victim was reassigned just a few feet away from the harasser, one supervisor told the victim that she might be fired if her allegations were found untrue and the employer's investigators did not interview all the relevant witnesses.

In Hostetler v. Quality Dining, 83 FEP Cases 513 (7th Cir. 2000) the company responded to a sexual harassment complaint by transferring the victim to another worksite. While this might be appropriate in some cases, the court found that the employer made the victim's job significantly less rewarding or desirable in that she was subjected to a lengthy commute and a marathon work schedule.

Labor Contracts On-Line

We were pleased to see that OPM has put its federal sector contract database on line. OPM has maintained this service, called LAIRS, for years but until now information in the database has been available only by mail. The New LAIRS website contains lots of collective bargaining agreements in the federal sector. The website address is http://apps.opm.gov/cplmr/lairs.html-ssi .

Proving an Illegal Practice

In Packaging Corp. of America, 114 LA 809 (Nolan, 2000) an union grieved a unilaterally imposed company policy requiring all employees to wear safety shoes. The employer defended on the basis that it had been told by an OSHA inspector that it would receive an OSHA citation if all employees were not required to wear safety shoes. The arbitrator ruled that where a new policy has been unilaterally imposed, the employer bears the burden of proving that the new policy is required by the law. In this case, the arbitrator determined that OSHA regulations did not call for all employees in the workplace to wear safety shoes.


FLRA Decisions

Its always reassuring to see FLRA rule that unions are entitled to relevant information about the selection process for a particular vacancy. In Health Care Financing Administration, 56 FLRA No. 19 (2000) the Authority agreed with the union that the data it requested was necessary.

How's this for nice arrangements? The Authority's decision in U.S. Marine Corps., 56 FLRA No. 34 (2000) involved a labor contract that required management to provide television service to individual sleeping quarters used by employees during 24 hour shifts. Management argued that the expenditure of funds for this purpose was contrary to 31 USC 1301, a general appropriations statute. An arbitrator disagreed and directed management to restore the service. The Authority, in turn, denied management's appeal.

The Authority issued a couple of rulings concerning internal security practices. In Immigration and Naturalization Service, 56 FLRA No. 50 (2000) the Authority decided that it was an unfair labor practice to implement a change in policy concerning body searches conducted by bargaining unit employees. In U.S. Customs Service, 56 FLRA No. 56 (2000) the Authority ruled that an employer may not institute a new policy of videotaping investigative interviews with employees without bargaining with the union over the impact and implementation of this policy.

Probationary Employees Can Appeal RIFs

It is common knowledge that probationary employees cannot appeal to the Merit Systems Protection Board if they are fired during their probationary period for alleged misconduct. Reductions in force are different, however. In Bielomaz v. Dept. Of the Navy, 38 GERR 884 (2000) the Board ruled that an employee's status as a probationer is irrelevant in a reduction in force appeal. Probationary employees thus have the right to challenge demotions or removals due to a RIF at the MSPB.

Official Time/ Lobbying

We have received many questions on the use of official time by union representatives for lobbying.

The Authority ruled in VA Regional Office, Atlanta, Georciia, 47 FLRA No. 105 (1993) that the use of official time for lobbying Congress on issues of concern to federal employees is negotiable and does not violate any law, including 18 USC 1913 which is a general prohibition on lobbying with appropriated funds. Congress then in 1995 enacted sections 8001 and 8015 of Public Law 104-61 which the Authority interpreted as overruling its decision and prohibiting official time for lobbying in New Hampshire National Guard, 54 FLRA No. 38 (1998). However, Public Law 104-61 was a funding bill for Fiscal Year 1996. We have not seen the same language in subsequent fiscal year funding bills, so we wonder if it still applies. Clients who know of newer legislative prohibitions on lobbying are invited to contact us.