May 2002

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 .

Those Unreasonable Unions!

We've heard from a lot of clients lately that agency management is getting more and more accusatory and critical about what the union is trying to. accomplish. Remember that management in the federal sector takes on the attitude of the administration in power. The new administration, of course, has no interest in partnership with unions and is, in fact, very much opposed to and resentful of unions. Like it or not, however, they are required to comply with the law and with your labor contract. Don't doubt yourself when you stand up for these rights. Their lawyers and labor relations "experts" will tell you that you are filing weak grievances, making improper bargaining proposals or taking unsupportable positions in labor arbitrations. Stand your ground if you know you're right. The era of partnership may be over but that doesn't mean that we can't continue to battle for the rights of working people and, sometimes, even win those battles!

Arbitration Over Unilateral Change

A recent FLRA decision shows that it is sometimes a good idea to pursue an unfair labor practice issue through the arbitration process rather than the ULP process. The case involved an agency's implementation of a new qualification standard without completing bargaining with the union. Instead of filing a ULP charge, the union filed a grievance on its own behalf and took the case to arbitration. The arbitrator ruled that the agency made a mistake by implementing its proposal after the parties reached an impasse. The arbitrator interpreted the parties' labor contract to require the agency either to make a declaration of non-negotiability or to make a request to the Federal Service Impasses Panel for assistance. U.S. Dept. of Labor57 FLRA No. 146 (2002).

Flexiplace Arrangements

The Authority's decision in HHS, Centers for Medicare and Medicaid Services, 57 FLRA No.147 (2002) involved the "flexiplace" provisions of the parties' labor contract, under which employees are allowed to work at home under certain circumstances. An employee filed a grievance and the arbitrator ordered the agency to grant the employee's request. On appeal, the agency argued this interfered with its right to assign work. The FLRA disagreed, ruling that the geographical location where the work of a position is performed does not involve the assignment of work.

Consideration of Past Discipline May Be "Harmless"

The MSPB has consistently ruled that it is improper for a deciding official in a disciplinary action to rely on prior instances of alleged misconduct in deciding what penalty to impose if the proposal letter itself does not refer to the prior misconduct. In Biniak v. Social Security Administration, 90 MSPR 682 (2002), the Board explained that this error does not necessarily mean the employee will win his appeal. In that case, the deciding official improperly relied on past discipline in deciding to remove an employee on charges of misuse of government equipment. The Board ruled that it can remedy this error by evaluating the mitigating and aggravating factors on its own, without regard to the prior discipline. The Board upheld the employee's removal on the basis that the charges against him were so serious that they warranted removal from employment in themselves even if the employee's record of prior discipline was clean.


Disability Cases

New Firefighter Regulations

If you have firefighters in your bargaining unit, they are probably aware that Congress passed the Federal Firefighters Overtime Pay Reform Act in 1998 correcting various inequities in their pay practices. OPM issued regulations interpreting this law on April 2, 2002, which can be found at 67 Federal Register 15463. The Federal Register is easy to access on the Government Printing Office website: www.gpo.gov .