September 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.

New AFGE Officer

Its always great to see our retainer clients moving up in the world. Congratulations to Jim Davis, President of AFGE Local 987 at Robins Air Force Base, Georgia. He has been elected as the National Secretary-Treasurer for AFGE and will be moving to Washington, D.C. We are sure Jim will do the same fantastic job at AFGE's National Office that he did at Local 987.

The Perils of Negotiability

A recent FLRA decision shows how avoiding negotiability problems can be like walking a tightrope. In Federal Bureau of Prisons, Marianna, Florida, 56 FLRA No. 69 (2000) the union grieved the agency's practice of allowing correctional officer posts to remain vacant on a routine basis for administrative convenience. The arbitrator agreed with the union that this violated labor contract provisions on safety and health since it increased the inherent hazards of working in the prison environment. As a remedy, the arbitrator ordered the agency to vacate posts only for good cause and not on a routine basis for administrative convenience. The Authority upheld the award. It noted that the award does not require the agency to hire additional employees or to fill vacant positions. It contrasted the award with a proposal found nonnegotiable in another Bureau of Prisons case that would have required the use of overtime in non-emergency circumstances before a correctional officer's post could be vacated: Federal Bureau of Prisons, Florence, Colorado, 55 FLRA No. 1078 (1999). Talk about a distinction without a difference.

When is a Probationary Employee Probationary?

We often get questions about employees who have been fired during their probationary periods who have prior service with the government in another position. This is a confusing area of the law. Sometimes the prior service counts and the employee does not have to complete a new probationary period; sometimes it doesn't. The MSPB put a new wrinkle into this issue in Edwards v. Dept. of Justice, No. AT-315H-99-0695-I-1 (Aug. 8, 2000). In that case, an employee transferred from a permanent position to a term appointment in the same agency. When he was fired during his probationary period in the new job, he appealed to the MSPB. The MSPB upheld his appeal on the basis that he had not been warned before accepting the new position that he would have to serve a new probationary period.

Back Pay for Indefinite Suspension

A number of years ago, the Federal Circuit's Richardson decision ruled that even if an indefinite suspension for indictment for a crime was proper, an employee may still be able to recover back pay if he is later cleared of the crime. This was the outcome in Immigration and Naturalization Service, 114 LA 872 (Neas, 2000). The employee was indicted for aggravated assault during an off-duty incident at a nightclub. After he was cleared of the charges, he filed a grievance seeking back pay. The arbitrator granted the grievance, finding that the agency relied on untrustworthy information in pursuing the case against him.

Remedies in Promotion Cases

The Authority's decision in Panama Canal Commission, 56 FLRA No. 67 (2000) shows that arbitrators have considerable power in cases involving non-selection for promotion so long as they make their findings in the correct manner. The key is always the "but for" test. So long as an arbitrator finds that "but for" the violation of a labor contract, a law or a regulation the selected employee would not have been chosen, the arbitrator has the freedom to undo the selection. In that case, the arbitrator determined that the selection and appraisal procedures for filling a certain vacancy were contrary to regulations. The arbitrator directed the agency to remove the selectees, to re-advertise the positions and to conduct a new selection with the appraisals completed properly. The Authority upheld the award.

Carpal Tunnel Syndrome

Many courts have debated whether carpal tunnel syndrome, a physical ailment caused by repetitive use of the hands and arms, is a "disability" within the meaning of the Americans with Disabilities Act. Some courts say it is too minor a limitation on one's activities to amount to a disability. The Sixth Circuit disagreed with this in Williams v. Toyota Manufacturing, 10 AD Cases 1349 (6th Cir. 2000). The case involved an assembly line worker whose impairments to her arm, shoulders and neck prevented her from gripping tools and repetitive work with her hands and arms. The Court determined that this impairment, which was permanent in nature, was a disability within the meaning of the law and that the employer was required to accommodate it.