December 2001

Our Regular Reminder

This is a reminder to all our union clients of the services available through our firm. Most of various services are 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 visit our internet site at http://minalian.wld.com.

The Latest from the Supremes

On November 13, 2001, the Supreme Court issued its decision in Gregory v. (IS. Postal Service. The Federal Circuit had ruled that agencies may not rely on prior disciplinary actions in justifying a current penalty in an MSPB appeal if those actions are being challenged in the grievance process. The Supreme Court disagreed, noting that the MSPB allows employees to prevent reliance on prior discipline if they did not have an opportunity to challenge it or if the prior discipline was obviously erroneous. The concurring decision by Justice Ginsburg noted that if a prior disciplinary action is overturned after an MSPB appeal that relied on It is over, the MSPB would be expected to reopen that appeal to decide if the penalty was still appropriate.

Watch These Ones

AFGE has asked the Supreme Court to review a decision by the Federal Circuit which ruled that federal employees have no "standing- to challenge a contracting-out decision in court. The appeal was filed on October 22, 2001, and we hope the Court agrees to hear it.

The Supreme Court has already agreed to hear an appeal of the Ninth Circuit's decision in Chevron USA v. Echazabal. That case involves a disabled employee who was refused a Job in an oil refinery because it might aggravate his liver disorder. The Ninth Circuit ruled that an employer cannot reject an employee for a job because of a threat to the employee's own health-, it would have to be a threat to the safety or health of others. It will be interesting to see if the Supreme Court defers to the EEOC's regulation on this point, which favors the employer, when it refused to defer to the EEOC's regulation that employees whose disabilities are controlled by medication are still covered by the ADA in the 1999 "Sutton " trilogy. That time, the EEOC regulation favored the employees.

"Two Bites at the Apple": Enforcing Union Rights and Employee Rights at the Same Time

A pair of cases shows how you can get two opportunities to correct an injustice. We represented a Hill Air Force Base employee in an MSPB appeal challenging a period of indefinite enforced leave imposed on him because he is supposedly unfit for work for medical reasons. His union also filed a grievance claiming that the implementation of the new policy on medical disqualification violated the labor contract and established practice. Fortunately for the union, AFGE National Representative Mike Hurley handled the grievance. Even though the MSPB decision was not favorable, the Arbitrator ruled in favor of the union on the grievance. As part of the remedy for the wrongfully implemented policy, the Arbitrator directed that the employee be returned to work with full back pay and benefits. What does this prove, besides the truth of the old maxim "you don't mess with Hurley"? It proves that if an employee is harmed by a decision that also violates the rights of the Union, both the employee and the Union can file separate cases seeking, the same kind of remedy.

FLRA Decisions

The decision in IRS Cincinnati Service Center, 57 FLRA No. 73 (2001) makes one more attempt to distinguish a classification dispute, which is not grievable, from a temporary promotion dispute, which is grievable: "Where the substance of a grievance concerns the grade level of the duties permanently assigned to and performed by the 'grievant, the grievance concerns the classification of a position... However, where the substance of a grievance concerns whether the -rievant is entitled to be compensated at a higher rate of pay by reason of having temporarily performed the established duties of a higher graded position, the grievance does not concern the classification of a position."

Grievances concerning retirement are excluded by law from the grievance process. Thus, the Authority ruled in FAA, Ft. Worth, 57 FLRA No. 74 (2001), that a grievance seeking clarification of an employee's service computation date is non-grievable.

Now here is an intersting case on "pay for commuting." Its common knowledge that the civil service pay statutes do not require an employee to be paid for the time she spends commuting to work. However, in Internal Revenue Service, 57 FLRA No. 81 (2001) the Authority addressed that topic under law, the "Portal-to-Portall Act." The Authority found that a labor contract provision which requires payment for commuting time is enforceable under this Act.

EEO Decisions

"Did I sign that?" The court in EEOC v. American Home Products Corp., 86 FEP Cases 1507 (N.D. Iowa 2001) ruled that a release signed by an employee waiving the right to file an EEO complaint was invalid and not binding on her when she proved she was drunk when she signed it!

An issue that causes a lot of confusion in the courts is whether harassment of an employee after the end of an "affair" is sexual harassment (and therefore illegal) or just a personality conflict (and therefore not illegal). The Eleventh Circuit ruled each way on the same day in two cases: Lipphardt v. Durango Steakhouse, 86 FEP Cases 1409 (11" Cir. 2001) and Pipkins v. City of Temple Terrace, 86 FEP Cases 1413 (1 1th Cir. 2001). It comes down to whether the harasser is motivated by the former lover's gender as opposed to the former lover's conduct. To prove sexual harassment in this situation, it may be crucial to show that the harasser was bothering not only the former lover but also others of the same gender in the workplace.

Federal Circuit Decisions

In Larson v. Dept of the Arm).,, 260 F.3d 1350 (Fed. Cir. 2001), the Court made a rare decision favorable to a whistleblower. The law requires that once an employee has shown that a particular action was taken soon after he "blew the whistle" on fraud, waste or abuse, the employer must prove "by clear and convincing evidence" that the action was not whistleblower reprisal. The MSPB judge in Larson simply accepted the testimony of a supervisor that he did not retaliate on the basis that his testimony was credible. The Court refused to accept this credibility determination, saying it was a Iong way from "clear and convincing evidence."

The decision in Tiburzi v. Dept. Of Justice, (November 1, 2001), showcased a vigorous debate over when a settlement becomes a binding contract. The employee made a statement at the MSPB hearing, that he agreed to the terms of a settlement but he later refused to sign the settlement after it was put into writing. The majority opinion held that the employee was bound by the oral agreement and that the written document did not differ in any significant way from what was said at the MSPB hearing. The dissenting, judge thought it was obvious that the employee did not consider an agreement to have been reached until it was put in writing and signed by the parties.