January 2001

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 rese arching any legal issue on federal sector employment.

Suing the Government

A number of clients have asked for a "refresher" on how federal employees can sue for things that happen to them at work. The courts are very reluctant to allow such lawsuits unless they are expressly authorized by a federal statute. The most common excuse given by the courts for dismissing such lawsuits is that the employee already has some sort of administrative remedy, such as a grievance under a labor contract, an EEO complaint or an appeal to the MSPB. Sometimes they refer to 5 USC 8116(c), which states that no federal employee can sue the government for an illness or injury covered by workers compensation. When employees try to get around the barriers to s uing the government by suing individual supervisors personally, the lawsuits are dismissed again, this time on the basis of "qualified immunity." This is a legal doctrine which says that all federal employees are protected from personal liability for things they do on the course of their employment. The bad news is that going directly into court on a job related claim against the government is very difficult. The good news is there are a host of administrative remedies available, from ULP charges to EEO complaints to Special Counsel complaints, etc. One of our most important jobs is to help Union clients find the administrative remedy best suited to an employee's complaint. Attached to this newsletter are summaries of the Saul and, Jones -cases which explain these points in greater detail.

No Such Thing as a Whistleblower

The Federal Circuit issued another typically terrible decision on a whistleblower case in Meuwissen v. Dept. of the Interior, 39 GERR 13 (Fed. Cir. 2000). The particular case brought by the employee probably wasn't all that good, but the Federal Circuit used it as an opportunity to make overly broad statements that could hurt good whistleblower appeals. The Court said that a disclosure of information that is publicly known is not a protected whistleblower disclosure. The Court also said that the employee could not be protected for disclosing a violation of a law since the employee had not identified the particular law that was violated when he made his disclosure,

New OPM Suitability Regulations

On December 28, 2000, OPM issued new regulations governing "suitability" appeals, in which it directs a federal agency to fire an employee for falsifying his or her job application or for some other reason showing he or she is "unsuitable" for federal employment. 65 Fed. Reg. 82239. The new regulations will be at 5 CFR Part 731 and will take effect January 29, 2001. The new regulations take away the power that employing agencies used to enjoy to keep an employee deemed "unsuitable" in a pay status while he or she appeals to the MSPB.

The new regulations also require MSPB to return a suitability case to OPM if MSPB sustains less than all the charges, so that OPM can have another chance to rule against the employee. If would have been promoted. OPM interprets this as requiring MSPB to give it a second chance after MSPB has already found an employee suitable for federal employment, these regulations are probably illegal.

Union Ratification Votes

Unions sometimes ask if they are required to allow non-members to vote on whether a new labor contract should be ratified. The NLRB's view is that this is not required. In Longshoremen Local 1575, 165 LRRM 1377 (2000), the Board ruled that the duty of fair representation does not apply to ratification votes.

The Power of Arbitrators

Two recent decisions from FLRA demonstrate the freedom given to arbitrators in awarding a remedy to federal employees. In Defense Logistics Agency, 56 FLRA No. 116 (2000), the arbitrator sustained a grievance alleging that the grievant was improperly denied a temporary duty assignment. The arbitrator ordered the agency to make the grievant whole by paying him any lost pay and benefits he would have received on the assignment. The Authority denied the agency's appeal. In Dept. of Veterans Affairs, 56 FLRA No. 104 (2000), the arbitrator concluded that the agency violated a requirement in its labor contract to treat employees fairly and equitably when it denied an employee a permanent promotion. The Authority rejected the Agency's appeal, saying that the arbitrator was required to do no more than find the existence of a contract violation and find that "but for" the contract violation the employee would have been promoted.

Unlawful Interrogation of Union Steward

The Authority in Dept. of Veterans Affairs, 56 FLRA No. 117 (2000), ruled that an agency committed an unfair labor practice by interrogating a union steward concerning an employee's statements to the steward. The Authority ruled that statements made by an employee in confidence to a union representative are privileged and may not be probed by agency management.

EEO Rulings

Some conservative courts continue to erect unreasonable barriers to the presentation of an EEO complaint. In Lybrook v. Farmington Schools, 17 IER Cases 18 (10th Cir. 2000), the. court ruled that a teacher who had been placed on a professional development plan did not suffer an "adverse employment action" which can be remedied in court. In Maynard v, Pneumatic Products Corp., 11 AD Cases 295 (11th Cir. 2000), the court decided that an employee whose back condition prevented him from walking more than 40 yards did not present enough evidence to show he was a person with a disability. According to the court, the employee should have presented comparative evidence of the abilities of an average person in the general population. It figures. The idea that a party needs to present evidence to prove what most people know by ordinary common sense is no surprise when it comes from judges who have no common sense.