July 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. Check out our web site at http://minahan.wld.com .

"Robust" Union Activity

While we know all of our union clients are calm and reasonable, it is always good to know that you have some protection if you get a little worked up. The decision in Charleston Air Force Base, 57 FLRA No. 25 (2001) involved a union representative who was given a three-day suspension for engaging in threatening behavior toward a supervisor. The representative was asked to attend a performance counseling session by the employee. The supervisor told the representative he was not entitled to attend, after which the representative yelled at the supervisor, brushed by her and told her he intended to file a complaint. Even though the Authority disapproved of the representative's conduct it nevertheless held that it was not beyond the boundaries of protected activity and thus that the three-day suspension amounted to an unfair labor practice.

"Appropriate Arrangements"

We always like to remind our clients about the power of 5 USC 7106 (b) (3). This section of the law on "management's rights" says that a bargaining proposal put forth by the union can be negotiable even if it directly interferes with the rights of management, so long as it is an "appropriate arrangement" for employees adversely affected by management decisions. The ruling in VA Medical Center New Orleans, Louisiana, 57 FLRA No. 9 (2001) is an example. Employees in a mental ward at the hospital were concerned about having to watch out for patients who would wander. The Union proposed that these patients should be required to wear signal bracelets to alert the staff if they wander off. Management noted that this proposal interfered with its right to determine internal security. The Authority agreed that the proposal impaired this right but nevertheless found it to be an appropriate arrangement for employees and therefore negotiable.

Compensatory Damages for Discrimination

Compensatory damages for emotional distress caused by employment discrimination have been available since 1991. A large award for damages is rare in those situations where an employee has not been fired. However, in Department of Defense Dependent Schools, 57 FLRA No. 6 (2001) the Authority upheld an arbitrator's award of $75,000.00 for emotional distress caused by a racially discriminatory performance appraisal. The Authority rejected the Agency's claim that the award was too high.


Approved Leave as a Reasonable Accommodation

Many court decisions since the ADA was enacted have wrestled with the question of whether time away from work can be a reasonable accommodation. Early on, some courts said that leave can never be a reasonable accommodation because showing up for work is an essential element of any job. More recently, most courts have come to recognize that leave can be a reasonable accommodation depending on how much is requested, how much of a hardship it would cause to the employer and whether the employee will be capable of resuming her full duties when she returns. In Boykin v. Vancom of Colorado, 247 F. 3d 1061 (10th Cir. 2001) the court ruled that leave from work can be a reasonable accommodation even if the employee cannot return to her job and the leave is requested solely to allow the employer to search for other vacant positions. The court said that the amount of leave that is reasonable for this purpose may vary from case to case but expressed the opinion that six months would normally be a reasonable request.

Refusal to Cooperate in an Investigation

We get many calls from clients about whether federal employees must cooperate with Agency investigations into allegations of misconduct against them. The general answer is that they do have to cooperate with these investigations and the Federal Circuit even ruled in a 1983 decision that an employee was properly fired for refusing to answer questions during an agency investigation, even though the investigation ultimately cleared her of misconduct. The Federal Circuit's recent decision in Modrowski v. Department of Veterans Affairs, on June 13, 2001 represents a significant victory for employees, however. In essence, the court ruled that federal agencies have no right to steamroll employees into cooperating in investigations when the employees need just a little time to determine their rights. The Court ruled that Mr. Modrowski reasonably believed he might be prosecuted as the result of the investigation and that he had good reason to question whether prosecution had been declined by the US Attorney. He asked only that the investigation be delayed for a couple of days since his attorney was not available to talk to him until then. The agency fired him for insubordination. The Federal Circuit ruled that Mr. Modrowski did not unreasonably delay the investigation and reversed the decision to remove him from employment.

Consideration of Prior Discipline

A recent decision of the Merit Systems Protection Board in Cantu v. Department of the Treasury, 88 MSPR 253 (2001) deals with the conditions under which a federal agency may rely on an employee's past disciplinary record in selecting a penalty for a new offense. The agency in that case relied on a prior letter of reprimand. The MSPB ruled that it should not have been considered because it should have been expunged from his records under the agency's own policy on record retention prior to his recent act of misconduct. The agency also relied on a prior 14-day suspension, but this suspension was imposed after the incident on which the agency based its current misconduct charges. The MSPB ruled that it was improper to rely on the 14-day suspension as well.