March 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.

No More Executive Order

On February 17, 2001, President Bush issued an Executive Order rescinding President Clinton's Executive Orders on labor management partnerships. Amazing. The Clinton Executive Orders weren't worth anything anyway. Why not just leave them alone? It seems to us that President Bush has gone out of his way to send a message to federal unions and federal employees that he is our adversary. It looks like a 4 year struggle for every ounce of justice and fair treatment in the workplace we can get.

Watch this One

The Supreme Court has agreed to review a rare favorable decision from the Federal Circuit (they seem to have a rule providing for automatic review of Federal Circuit decisions in favor of employees!) In Gregory v. U.S. Postal Servic , 212 F. 3d 1296 (Fed. Cir. 2000), the Court ruled that neither MSPB nor an arbitrator can rely on prior disciplinary actions for purposes of sustaining a penalty which is being appealed, if those disciplinary actions are also in the process of being appealed. The Supreme Court voted on February 20, 2001, to hear the Postal Service's appeal. Its always scary when they decide to hear appeals so fast. Just ask Al Gore.

Invalid Performance Standards

In Johnson v. Dept. of the Interio , 87 MSPR 359 (2000), the MSPB reversed the removal of an employee for allegedly unacceptable performance. The employee's performance standards, as written, required her to perform all of her work properly all of the time. Since she never got any clarification or counseling on the meaning of such terms as "generally" or "routinely" the MSPB concluded her performance standards were impermissibly absolute.

Disability Codes

The EEOC ruled on January 19, 2001, that the Navy committed handicap discrimination by revealing the disability codes of certain employees to prospective employers under the priority placement program. The employees protested that their disability codes were shown on the resumes that were submitted to the priority placement program. The Navy responded that even though prospective employers could see the codes the employees could not prove that they were denied any jobs because of this. The EEOC, however, ordered the Navy to offer each of the employees a position at the highest grade level for which he or she was qualified and to pay back wages and lost benefits. EEOC Appeal No. 01980077.

ULP to Promise a Benefit

Discrimination against union activists usually takes the form of threats and reprisals. A recent private sector case shows that unlawful discrimination can come in the form of benefits or inducements as well. In Great Lakes Warehouse Corporation v. NLRB, 166 LRRM 2449(7th Cir. 2001), the court concluded that it was an unfair labor practice for an employer to offer a promotion to a key union supporter shortly before a union organizing campaign. The court found that the offer was designed to move the union supporter out of the bargaining unit into a management position where he would not be able to campaign in favor of the union.