September 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 .

Welcome New Client

We would like to welcome AFGE Local 1223 to our family of Union retainer clients. Local 1223 represents employees of SSA's Office of Hearings and Appeals in Region 9 and the Local President is Duane DeJoie. Welcome aboard!

What's New At the Law Firm

Tiffany Malin will be attending law school at the University of Denver for the next 4 years. She is now working for us part time, on Mondays and Fridays. We are delighted to welcome Ann-erika White Bird as our full time legal secretary. We also ask that our Union clients be patient with us during the month of September. Barrie Shapiro and Paul Hirokawa will be gone for two weeks working on an EEO case in Japan, so you may want to hold your potential ULP cases until the end of the month.

Is it Harmful to be Late? It Depends on Who is Late!

The MSPB's decision in Salter v. Department of the Treasury, issued on August 27, 2002, involved an Agency that waited over a year after issuing a proposed action to issue a decision letter. The MSPB overturned a finding by its administrative judge that this error called for a ruling in favor of the employee. According to the MSPB, the employee did not prove that the delay in issuing the decision letter harmed his ability to defend himself or that the Agency would have imposed a lesser penalty if it acted quicker. What do you think would have happened if the employee waited over a year before he filed his MSPB appeal? Would the Agency have to prove harmful error to get the appeal dismissed? Nope. The employee would have to establish good cause for the late filing.

FLRA Cases

A significant remedy in favor of 4 employees denied priority consideration was approved in Naval Weapons Station, 57 FLRA No. 192 (2002). The arbitrator found that the 4 employees were entitled to priority consideration because of a prior settlement agreement. The arbitrator determined that the selecting official did not give honest consideration to any of the employees when he filled the vacancy. Ruling that one of the employees would have been selected if bona fide consideration was given, the arbitrator directed the Agency to place one of the grievants in the next available vacancy. The FLRA upheld the award.

The decision in VA Medical Center, Cincinnati, Ohio, 57 FLRA No. 173 (2002), is another example of how important it is for an arbitrator to make the "but for" finding. The arbitrator ruled that the Agency violated the labor contract by failing to give the Union notice and an opportunity to bargain over schedule changes. The arbitrator awarded overtime pay to the affected employees. The FILRA overturned the award, however, because there was no finding by the arbitrator that the employees would have received the overtime in the absence of the violation of the labor contract by the Agency.

The decision in Ft Monroe, Virginia, 57 FILRA No. 176 (2002), involves a Union data request for information concerning contracting-out. The Union requested the Agency's Table of Distributions and Allowances (TDA) and the most efficient organization (MEO). The Authority ruled that the Agency was required to provide the Union with the TDA, but not the MEO. The Authority noted that OMB Circular A 76 prohibits the release of the MEO prior to the announcement of the tentative decision on contracting-out the work under study.

In Willow Grove Air Reserve Station, 57 FLRA No. 183 (2002), the Agency assigned additional duties to security guards and increased the number of security guards assigned to each shift without bargaining with the Union. The members of the Authority engaged in a sharp debate over the remedy. The majority decision directed the Agency to negotiate with the Union but did not direct the Agency to restore the status quo ante because of supposedly valid security reasons for not returning to the prior practice. Member Pope issued a sharp dissent, saying there was no evidence describing how or to what degree a return to the status quo would disrupt the Agency's operations. A similar case fared better in arbitration. In Federal Bureau of Prisons, 116 LA 1271 (Moore 2002), a prison changed procedures to require patrol officers, and not other officers, to escort inmates to a clinic. The arbitrator ruled in the Union's favor.

Knowledge of Protected Status

When handling discrimination cases, don't forget to address the fundamental question of whether the employer knew of the employee's protected status. For example, proof that a minority applied for a job and was not selected in favor of a white male does not establish a prima facie case of discrimination unless the selecting official knew the complainant is a minority. Two recent decisions emphasize this point. In Lubetsky v. Applied Card Systems Inc., 89 FEP Cases 603 (1 1th Cir. 2002), a case alleging discrimination on the basis of religion was dismissed when the employee could not prove that the person who decided not to hire him knew he was Jewish. In Prebilich-Holland v. Gaylord Entertainment Co., 89 FEP Cases 662 (6th Cir. 2002), a woman sued an employer on the basis that she was fired 2 days after telling her supervisor she was pregnant. The supervisor testified that he initiated the termination process four days before he learned of the pregnancy and the employee could produce no evidence to the contrary. The case was dismissed.

Equal Pay Act Claim

The Court of Federal Claims issued a decision showing the relationship between the Equal Pay Act and classification issues in Hauschild v. United States, 40 GERR 829 (Ct. Cl. 2002). Mr. Hauschild's supervisor recommended his promotion from GS-12 to GS-13 after 1 year but the personnel office decided not to promote him, on the basis that a desk audit showed he was not doing GS-1 3 work. The court ruled that this is no defense to an Equal Pay Act claim, The question in a case like this, said the court, is not whether the employee is doing higher graded work when compared to the classification standard but whether he is doing the same work actually performed by an employee of the opposite sex. Mr. Hauschild alleged that a female employee at the same installation performing the same work that he was performing was paid at the GS-13 level. The court said this would be enough to establish an Equal Pay Act violation.