November 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.

Another Reminder: EDP and Hazard Pay

Remember that employees can get "two bites at the apple" on claims for environmental differential pay (WG employees) and hazard pay (GS employees). These are pay differentials for employees who work with specified dangerous conditions. For WG employees the list of conditions is shown at the appendix to 5 CFR Part 532. For GS employees the list appears in the appendix to 5 CFR Part 550. We always recommend that employees file grievances for these claims under their labor contract. If dissatisfied, they have up to six years from the date of the exposure to file for EDP or hazard pay in court. Also, even though we have to be fair to non-members in the grievance process, there is no duty of fair representation in court' cases. If the union represents employees on EDP or hazard pay claims in court, it can decide to do so only for union members.

Another Reminder: EEO Claims in the Grievance Process

Don't forget that every EEO claim can also be a grievance. Particularly if the EEO claim is strong, why waste all the time and money it takes to get a decision out of the EEO process or to take the case into federal court? If, for example, the union already has strong evidence that an employee was denied a promotion because of national origin or that management has failed to take prompt and effective action to deal with sexual harassment, file the case as a grievance. You'll get an arbitration decision in a fraction of the time it takes the EEO process to work. Remember that arbitrators can grant all the same remedies that a federal jury could grant, including compensatory damages for emotional distress.

Partnership Versus Bargaining

Arbitrator Alan Rothstein issued an interesting decision about a joint task force in Dept Of Housing and Urban Development, 114 LA 1222 ( Rothstein 2000). Management set up the task force to make office space allocations in a new office. The union was allowed to have representatives on the task force and the union president even signed the space allocations in the task force report. The recommendations of the task force were then implemented by management, but the union protested that it still had the right to engage in collective bargaining before any changes could be put in place. Arbitrator Rothstein agreed, finding that the joint task force created by management was not a substitute for traditional collective bargaining since the task force itself had not been established bilaterally between management and the union.

"Clean Record" Resignations

The Federal Circuit's recent decision in Godwin v. Dept. Of Defense, 38 GERR 1154 (Fed. Cir. 2000) shows the court may not tolerate "clean record" resignations much longer. As in past decisions, the court in Godwin expressed grave misgivings over whether settlement agreements that promise a fired employee a clean resignation and neutral job references are - workable. The court is concerned that they seem to require former employers to lie about what really happened to the employee. In Godwin, the employee's former employer signed a "clean record" settlement but later refused to say anything about the employee's work to prospective employers. The court decided this did not breach the settlement agreement since no negative information was provided.

No Suspension for Rude Behavior to the Public

The FLRA makes a lot of ridiculous decisions; it's nice to see a ridiculous decision that favors employees instead of management for a change. In Social Security Administration, 56 FLRA No. 74 (2000), the grievant was suspended for two days because he was rude to a member of the public in responding to a telephone inquiry and hung up on him.

According to 5 USC 7503, an employee may be suspended for 14 days or less for such cause as will promote the efficiency of the service "including discourteous conduct to the public confirmed by an immediate supervisor's report of four such instances within any one year period or any other pattern of discourteous conduct." The arbitrator decided this law prohibited an agency from suspending employees for discourtesy to the public unless the agency proved at least four instances of discourteous conduct in a year or some other pattern of misconduct. The Authority agreed with this interpretation of the law! So if you're going to be rude to a member of the public just don't do it more then three times each year!

On-Call Pay

Unions know how hard it can be to get employers to pay employees for time away from work when they are "on-call" and expected to be available to report back to work. The Tenth Circuit issued a rare favorable decision in Pabst v. Oklahoma Gas and Electric Co., 6 WH Cases 2d 609 (1 0th Cir. 2000). The case involved electronic technicians who did not have to report back to work but were expected to respond to phone calls about fire and security alarms at various buildings. The employees had to take some action by computer within 15 minutes of receiving the call. The evidence showed that the technicians usually got three to five calls per on-all period. The court agreed this was enough of an interference with their personal lives to require that the on-call time be regarded as "hours of work" for pay purposes.

EEO Developments