April 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. You can also e-mail us at danandbarrie@aol.com .

Prove What You Charge

Dan got a favorable decision from the Federal Circuit in a case emphasizing the importance of holding an Agency to proof of what it charges. The employee was charged with careless workmanship and the letter proposing the action against him alleged that his careless workmanship had resulted in the loss of a military aircraft. The case was taken to arbitration and the arbitrator concluded that some of the employee's work was careless but that it did not contribute to the loss of the aircraft. The arbitrator sustained the action against the employee anyway on the basis that some carelessness was shown. The Federal Circuit reversed the arbitrator's decision. Once the Agency's allegation that the employee's carelessness contributed to the loss of the aircraft was not proven, said the Court, the case was over and the action against the employee had to be reversed. Bockas v. Department of the Air Force, No. 00-3312 (Fed. Cir., April 6, 2001),

Disability Discrimination

There is good news and bad news in the recent case decisions involving disability discrimination.

First the good news. In Humphrey v. Memorial Hospital, 11 A.D. Cases 765 (9th Cir. 2001), the Court ruled that an employer's obligation to engage in the "Interactive process" extends beyond the first attempt at accommodation. The employee suffered an emotional disorder that made it difficult for her to come to work on time. The employer allowed her a flexible reporting time. The employee then asked for permission to work at home but the employer responded by discharging her. The Court ruled in the employee's favor, finding that the employer should have engaged in a "interactive process" to evaluate the feasibility of working at home, or other options such as a leave of absence.

Now the bad news. Proof that one has a "disability" continues to be the hardest part of a disability discrimination case. The courts are insisting on expert proof of matters that should be obvious to anyone with common sense. The decision in Duncan v. Washington Metro Area Transit Authority, 11 A.D. Cases 833 (D.C. Cir. 2001), is an example. The Court reversed a jury verdict in favor of an employee with a lifting restriction as a result of a back injury. The Court concluded that there was not enough evidence to show that the employee had a "disability" (meaning that he was disqualified from a class or broad range of jobs). The Court found that expert medical evidence on his back condition and lifting restrictions was not enough. It's hard to know what the Court was looking for. Apparently, employees who have lost their jobs because of their disabilities will now be expected to present expert medical testimony on their physical limitations, expert evidence from a labor statistician on jobs in the local commuting area, expert evidence from a vocational rehabilitation specialist on what other type of work the employee could perform, expert evidence from an economist on the employee's loss of earning capacity, and who knows what else. Any employee who can afford to retain all these experts doesn't need to file a lawsuit to get his job back. He's already rich!

Destruction of Evidence

Employers that lose, "can't find" or refuse to produce evidence you have requested in your case ought to pay the price. An example is Byrnie v. Town of Cromwell, 85 FEP Cases 323 (2 nd Cir. 2001). A female applicant for a teacher position at a high school filed a complaint of discrimination when a male applicant was chosen. The school district did not retain key records, such as the forms used to determine which applications would be interviewed, the interviewer's notes and the school district's initial response to the EEO charge. Noting that EEOC regulations require employers to retain records used in selection actions for at least 2 years, the Court said it was proper to allow the jury to infer that the destroyed documents would have benefitted the plaintiff.

Arbitrator Denied Fair Hearing

The Federal Labor Relations Authority rarely overturns an appeal from an arbitrator's decision on the basis that the arbitrator denied a fair hearing. The decision in General Services Administration, 56 FLRA No. 164 (2000) is an exception. The Union in that case raised an issue regarding official time for the first time in its post hearing brief. The case involved a 10- suspension. The Authority found that the arbitrator erred by refusing to allow the Agency to respond to this new issue and vacated that part of the arbitration award.

Nice Try

This Union deserves an "A" for effort. Everyone knows there is no "agency shop" in the federal sector: employees who do not voluntarily join the Union may not be required to pay union dues. In Naval Public Works Center, 56 FLRA No. 157 (2000), the Union proposed language for a new labor contract which would require the Agency to deduct $2.00 for use by the Union from each paycheck of bargaining unit employees who have not joined the Union. The Union said that government-wide regulations allow employees to make allotments from their paychecks for any legal purpose. The Authority said, "yeah, but the employee has to agree to it." Oh well.