December 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.

Investigators Reinstated

Barrie won a significant case for 2 clients employed by the Defense Security Service. They were investigators responsible for checking security clearances for military members. They believed that one person under consideration for a clearance posed a security risk and went over their supervisor's head to report this. The Agency's reaction was to audit just about all of their investigations for the past year or so and then to fire them for mistakes they supposedly made in those investigations. On October 31, 2002, Judge Garvey of the MSPB's Dallas office issued a decision setting aside almost all of the charges against these clients and reinstating them to work. Krape and Smyth v. Department of Defense.

Access to Court. Good News

The Federal Circuit recently issued a decision clarifying that federal employees can enforce their legal rights in court even if they are covered by the grievance procedure of a labor contract: Mudge v. United States, 308 F. 3rd 1220 (Fed. Cir. 2002). The Federal Circuit agreed with a decision by the lower court in Abramson v. United States, which was reported in our client newsletter for February 1999. The problem was that 5 USC 7121 used to say that the grievance procedure of a labor contract is the "exclusive" remedy for federal employees to enforce their legal rights. Congress changed this in 1994 to read "exclusive administrative" remedy and the Federal Circuit has now agreed that this change was intended to allow federal employees covered by a labor contract to enforce their rights in court. Of course, federal employees wishing to do so must still be able to find a law that authorizes cases to be filed in court, such as the Fair Labor Standards Act or the Privacy Act.

Access to Court: Not so Good News

A companion case to Mudge was O'Connor v. United States, 171 LRRM 2025 (Fed. Cir. 2002). Like Mudge, the case involved federal employees who sought to enforce their rights under the Fair Labor Standards Act in court. As in Mudge, the Federal Circuit said these employees were not prevented from filing a lawsuit in court because they were covered by the grievance procedure of a labor contract. However, the Court dismissed their lawsuit on another basis. Their Union had negotiated a settlement of their overtime claims and the court ruled this settlement was binding on the employees and required the dismissal of their lawsuit. What is disturbing about this decision is that it directly contradicts the Supreme Court's decision in Barrentine v. Arkansas-Best Freight System, 450 U.S. 728 (1981). Strangely, the Federal Circuit did not even refer to Barrentine in its decision in O'Connor. Barrentine involved a group of private sector employees who filed a lawsuit for unpaid overtime under the FLSA. The company argued that the lawsuit should be dismissed since the employees were covered by a labor contract and since their claim had been submitted to arbitration and rejected. The Supreme Court disagreed, saying that the employees' rights under the FLSA were personal to them and could not be waived by the Union. We don't think the differences between the private sector and federal sector labor relations laws are so significant that a result directly contrary to Barrentine is warranted in the federal sector. It will be interesting to see if the O'Connor decision is appealed to the Supreme Court.

Agency Regulation on EDP Exposure

A recent decision by the FLRA is an important reminder for all Unions to negotiate the permissible exposure limit for environmental differential pay, or their agencies may do it for them. The decision in Kelly Air Force Base, Texas, 58 FLRA No. 13 (2002) involved a grievance seeking EDP for exposure to asbestos. The arbitrator ruled in favor of the employees, finding that any exposure to asbestos warranted payment of EDP. The Authority reversed the arbitrator on the basis that the Air Force had issued a regulation providing that no EDP would be paid unless exposure above the OSHA standard for asbestos was proven. The Authority said that the arbitrator was required to abide by the Air Force regulation in the absence of any contrary provisions in a negotiated agreement. The lesson is clear: Unions need to negotiate provisions for payment of EDP or hazard pay or run the risk that federal agencies will "fill in the blanks" by issuing regulations of their own.

A Real Disability

It's always nice to see at least one decision finding that there is such a thing as a person with a disability covered by the Americans with Disability Act. The decision in Edge v. City of St. Paul, 13 AD Cases 1158 (D. Minn. 2002), involved an applicant for a Fire Fighter position who had been treated for depression. The employer argued that the applicant wasn't really disabled because he was merely disqualified from one particular job as a Fire Fighter. The Court disagreed, emphasizing that the doctor's exam that disqualified the applicant found him unsuitable for public safety work in general. Since the employer regarded the applicant as unable to perform an entire class of public safety jobs, the Court ruled that the applicant was protected by the ADA.

Even If No Constructive Discharge, EEO Claim Can be Pursued

The Ninth Circuit issued a decision involving a HUD employee who was transferred to Alaska in Metzeger v. Martinez, 40 GERR 1031 (9th Cir. 2002). Mr. Metzeger decided to resign after he was told he was required to move to Alaska. The Court ruled that the forced transfer was not so intolerable that it could amount to a constructive discharge requiring his reinstatement to employment. However, the Court also ruled that Mr. Metzeger was still entitled to present his case to a jury on the issue of whether the decision to transfer him to Alaska amounted to discrimination on the basis of his national origin. Thus, even though he would not be entitled to backpay or reinstatement, he would still be entitled to damages for the discriminatory decision to transfer him.

Employee Entitled to an Accommodation, Not Best Accommodation

A recent decision by the Seventh Circuit repeats the well established rule that an employee with a disability is not entitled to the accommodation she prefers but only to a 14 reasonable accommodation." The employee, a nurse with lifting restrictions, was reassigned to a clerical job. The employee argued that she should be reassigned to another nursing position. The Court found that the clerical job provided her with the same salary and so was a reasonable accommodation, even though it had fewer fringe benefits and career advantages. Mays v. Principi, 13 AD Cases 985 (7 th Cir. 2002).