MINAHAN AND SHAPIRO, P.C.
ATTORNEYS AT LAW
165 SOUTH UNION BOULEVARD
LAKEWOOD, COLORADO 80228
LAW FIRM NEWS
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 athttp://minahan.wld.com .
Arbitration as an Alternative to Court
Dan just got a favorable decision from the Federal Labor Relations Authority in Robins Air Force Base, Georgia, 57 FLRA No. 97 (2001). The case involved a grievance by an employee alleging a violation of the Privacy Act. The arbitrator agreed with the employee that it was a violation of the Act for management to give a copy of her performance appraisal to a bargaining unit employee, but he said he was powerless to grant her damages under the Privacy Act and she would have to go to federal court to obtain that kind of remedy. We appealed to the FLRA, saying that a "grievance" includes violations of the law as well as violations of the labor contract.
The FLRA agreed and returned the case to the arbitrator with instructions to resolve the grievant's claim for damages under the Privacy Act.
Arbitrate What You Can't Negotiate
A couple of recent decisions involving the Bureau of Prisons illustrate the FLRA's attitude toward arbitration awards that interfere with management's rights. FLRA says that even if a bargaining proposal might be non-negotiable because it could interfere with management's rights, it will uphold the award of an arbitrator which interferes with those rights in a limited way in a particular case. The two decisions are BOP, Metropolitan Detention Center, Puerto Rico, 57 FLRA No. 67 (2001) and BOP, U.S. Penitentia[y Atlanta, Georgia, 57 FLRA No. 72 (2001). Both cases involved arbitration decisions that ordered the agency not to vacate the posts on a routine basis for administrative convenience but only under emergency circumstances. If the union had tried to negotiate language into its contract prohibiting management from vacating posts, it probably would have been ruled non-negotiable. However, in these particular cases, the arbitrators enforced contract language saying, "the employer agrees to lower those inherent hazards of a correctional environment to the lowest possible level." The Authority ruled that enforcing this general contract language in the circumstances of these particular cases where employee safety was involved, represented an appropriate arrangement for employees and did not excessively interfere with management's rights.
Representation in Investigations
The FLRA has a general rule prohibiting management from interfering with the union's choice of a representative and from interrogating employees about confidential communications with their union representatives. We think these rules should have no exceptions but in U.S. Customs Service, 57 FLRA No. 66 (2001), the Authority approved of a couple of narrow exceptions. It said that management was entitled to refuse to allow the union's vice president to represent an employee during an investigative interview when the vice president herself was the subject of the investigation. It also ruled that it was not an unfair labor practice for management to ask the employee if the union's vice president had advised him to lie during the investigation.
Relationship Between EEO and Union Rights
Federal agencies often argue that unions have no business in the EEO process. The Authority disagrees. In March Air Force Base, California, 57 FLRA No. 71 (2001), the Authority ruled that it was an unfair labor practice for management to refuse to negotiate over the impact and implementation of a court-ordered settlement in an EEO case. The decision in
Dover Air Force Base, Delaware, 57 FLRA No. 65 (2001) involved a mediation session for a bargaining unit employee on his EEO complaint. The Authority ruled that a meeting of this nature is a "formal discussion" at which the union is entitled to be present.
In Frazier v. Delco Electronics Corp., 86 FEP Cases 1043 (7th Cir. 2001) the court ruled that an employer's conduct may provide an employee with an excuse for late filing of an EEO charge. The employee was being sexually harassed by a co-worker. She reported it to her supervisors, who gave her the impression that they would launch an investigation and take care of the problem. Many weeks later, the co-worker began harassing her again and the supervisors said there was nothing they could do. The court ruled that her delay in filing the EEO charge was justifiable and that her charge was timely.... Employers always argue that an employee cannot make out a case of discriminatory treatment unless the person to whom she compares herself is in the identical situation. The Second Circuit rejected this argument in McGuinness v. Lincoln Hall, 86 FEP Cases 1102 (2 n1 Cir. 2001). A white female claimed she received a smaller severance package than a black male. The employer responded that they did not work in the same jobs. The court said she made out a case by showing that the two of them held positions of roughly equivalent rank, that they were discharged at roughly the same time and that the decisions with respect to the severance pay were both made at the employer's highest levels.
Disability Discrimination: Essential Duty
Perhaps the most misunderstood part of the law of disability discrimination is the concept of "essential duty." Before an employer can be required to accommodate an employee with a disability, the employee must show that if he received the accommodation he is proposing he would be able to perform the essential duties of the job. In a decision of rare clarity from the Second Circuit, the Court explained that the focus must be on the "end" and not the "means." The employee in LoveJoy-Wilson v. NOCO Motor Fuel Inc., 12 AD Cases 340 (2nd Cir. 2001) was denied a promotion to Assistant Store Manager. The employee had epilepsy, which prevented her from driving to the bank to deposit store receipts. The Court ruled that driving to the bank was not an essential duty of the job. What was essential was that the Assistant Manager deposit the store receipts. The employee had suggested having another employee drive her to the bank or hiring a driver at her own expense. The Court agreed that these accommodations would allow her to perform the essential duties of the job. Clients should keep this in mind when an employer claims that travel is an essential element or climbing inside confined spaces is an essential element. Ask the employee to think about why travel or working in confined spaces is a part of the job and how the work might be accomplished by other means. For example, could the same work be accomplished by telephone or video conference or could another employee be asked to enter the confined space to make the necessary visual inspection?