DANIEL MINAHAN

MINAHAN AND SHAPIRO, P.C.
ATTORNEYS AT LAW
165 SOUTH UNION BOULEVARDSUITE 366
LAKEWOOD, COLORADO 80228LAW FIRM NEWS

November 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 MSP13. 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 .

A Dangerous "Political Statement"

It's amazing how a change in administrations can change the attitudes of the top bureaucrats at FLRA. Two years ago, they were extolling the wonders of partnership. Now... well, listen to David Feder, FLRA's acting general counsel. At a recent federal sector conference there was some debate over whether the attendees should issue a statement in support of collective bargaining rights for employees of the new Homeland Security Department. According to Mr. Feder, a statement that collective bargaining is in the public interest would be interpreted as a 11 political statement." 40 GERR 952. It's nowhere near that controversial, Dave. The very first section in the federal sector law says "labor organizations and collective bargaining in the civil service are in the public interest." 5 USC 7101. This is not a political statement; it has been the law of the land since 1978!

Discipline Based on Satisfactory Performance

The FLRA affirmed the arbitrator's decision on an issue that usually arises at the MSP13 and not in the grievance process. The rule at the MSPB for many years has been that an employee cannot be fired for poor performance under the guise of calling it 11 misconduct" if she was satisfying her performance standards. In U.S. Information Agency, 57 FLRA No. 195 (2002), the employee, a radio announcer, got a 5 day suspension for making 2 inappropriate on-air comments. It turns out that her performance standards specifically cover her on-air comments and she had been rated highly successful under those standards for the same time period. The arbitrator concluded that it was a prohibited personnel practice to discipline her for poor performance when her performance had been rated highly successful during the same period of time. The FLRA upheld the arbitrators award.

"Confederate American"?

Yeah, we know we're going to get in trouble with our clients in the South but we can't let this one go. The Supreme Court recently refused to hear an appeal in the case of Terrill v. Chao, in which the lower court dismissed a lawsuit filed by a federal employee who works at the Department of Labor. The employee filed the case after DOL refused to allow him to display an exhibit in the agency's "Diversity Day" activities. The employee alleged discrimination on the basis of his national origin. He listed his national origin as "Confederate American." Hmmmm. The case is reported at 40 GERR 1012.

Robust Debate that's a Little Too Robust

It is well established in the law that employees who are Union representatives enjoy a special degree of protection not enjoyed by ordinary employees when they act on behalf of the Union. Sometimes effective representation involves being rude or even belligerent and Union representatives cannot normally be disciplined for this. But you gotta draw the line somewhere. In Aluminum Company of America, 170 LRRM 1478 (2002), the FLRA's private sector counterpart - the NLRB - ruled that it was not an unfair labor practice to discharge an employee who, in the course of protesting labor contract violations, referred to supervisors in the work area as "those M F 's" and accused the of trying to "pull some B - S -." Truth is apparently not a valid defense in a case like this.

EEO Decisions

It's always to good to find at least one case decision where an employee was considered to be "disabled" under the Americans with Disabilities Act. In Dilley v. SuperValue Inc., 296 F. 3" 958 (10" Cir. 2002) the court upheld a jury award in favor of an employee who was fired from his truck driver job because of a lifting restriction. The employee had back problems and had a 60 lb. lifting restriction. The jury found that this was a significant limitation on his major life activity of "working" and ruled in his favor.
An appeals court refused to rule against a federal employee on the basis that he had not exhausted his administrative remedies. In Jasch v. Potter 89 FEP cases 1377 (9th Cir. 2002), a Postal employee filed a lawsuit in court claiming discrimination. The Postal Service tried to have the case dismissed on the basis that he refused to give an affidavit during the EEO investigation. The court ruled that the Postal Service would not be allowed to raise this argument since it ruled against the employee's complaint on the merits. That is, the Postal Service had dismissed his complaint on the basis that there was insufficient evidence to prove discrimination. Since the Postal Service did not dismiss the complaint for failure to cooperate in the investigation, the court ruled that the Postal Service would not be allowed to make this argument in court.
An interesting decision by a federal district court in New York involves settlement agreements. In EEOC v. Morgan Stanley Company, 89 FEP Cases 1791 (S.D.N.Y. 2002), the court refused to allow an employer to enforce settlement agreements with its former employees that prevented the employees from giving assistance or testimony against the employer without a subpoena. To the extent that these agreements would prevent the former employees from communicating with the EEOC, the court declared them to be void as contrary to public policy.