February 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 researching any legal issue on federal sector employment.

Back Pay Period

Unions and management often argue about how long the period for back pay on a grievance should be. Unions say it should be the maximum allowed by law; management usually says it should be no more than the number of days for filing a grievance (e.g., 30 days). The decision in NTEU v. FDIC, 53 FLRA No. 134 (1998), is strong support for the union position. That case involved a claim under the Fair Labor Standards Act (FLSA). The Authority ruled that arbitrators must grant the same amount of back pay for FLSA claims that a court could grant (2 years; 3 years if the violation was "willful").

Gotta Be Fair

The power of labor contract language calling for "fair and equitable" treatment of employees was demonstrated again in FAA, Pittsburgh, Pennsylvania, 56 FLRA No. 134 (2000). Management claimed that a proposal requiring it to be "fair and equitable" in overtime assignments violated its reserved right to assign work. The Authority disagreed, saying a requirement to make assignments in a manner consistent with merit factors does not interfere with management rights.

Are "Light Duty" Jobs Real Jobs?

Our October 1999 newsletter discussed the MSPB's decision in Bracey v. OPM, 83 MSPR 400 (1999). In that decision, the Board denied an employee's application for disability retirement, saying that since the employee was being carried in a light duty job he wasn't disabled from his position. We thought this was good support for the argument that federal employees with disabilities can be accommodated by assigning them to available light duty work. No such luck. The Federal Circuit reversed the Board on January 17, 2001, in Bracey v. OPM, No. 00-3034. The court said an employee has neither been reassigned nor accommodated when he is assigned to an ad hoc set of duties that do not constitute his own or another official position. The court agreed with OPM that federal agencies are not required to create positions for employees. Luckily, the court doesn't have the final say on EEO laws so the argument for accommodation in "light duty" work can still be raised in other cases.

Does "Prompt and Effective" Remedial Action Require Discipline?

The Supreme Court ruled in 1998 that employers may defend against complaints of sexual harassment by showing they took 'prompt and effective" remedial action against the harasser. In Star v. West, 84 FEP Cases 1384 (9th Cir. 2001), the court ruled that harassers do not necessarily have to be disciplined. The employer in that case transferred the harasser to a different shift and counseled him to stay away from the complainant, which he did. The court ruled the employer was not liable for the sexual harassment that occurred before the complaint was made.

Bonehead Disability Decisions

Here we go again. Employees with disabilities who try to use the Americans with Disabilities Act are being treated almost as badly as whistleblowers by the courts. Last month's newsletter talked about an employee who did not convince a court he had a "disability" merely because he could not walk more than 40 feet. Now, the court in Kellogg v. Union Pacific Railroad Co., 11 AD Cases 385 (8th Cir. 2000), says an employee who was medically incapable of working more than 40 hours a week did not have a disability, even though he routinely worked 60-80 hours a week before he was diagnosed with anxiety and depression. Must be something about the number 40!

The decision in Sherman v. Runyon, No. 99-3396 (8th Cir. 2000), shows the Eighth Circuit got out of the wrong side of bed that whole month. The plaintiff, a deaf and mute Postal employee was fired under the Postal Service's "zero tolerance" policy for threats. His supervisor chewed him out for not processing enough mail and told him to go home. The employee then began verbalizing and making gestures in sign language for "why" and "automobile," trying to explain that he didn't have a car and couldn't drive himself home. The supervisor took these actions as threats and fired the employee. The court said, basically, "OK with us; the Postal Service has a zero tolerance policy toward threats." Yup, we treat people with disabilities no differently than anybody else. If an employee begins shaking and falls to the ground in front of customers, we fire the bum. Why should it matter that he is epileptic?

There is a reason why you, and we, as employee representatives stay in this business. We live and work for the day when decisions like these will ancient history.