March 2003

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

The Guardians of our Liberty

"We cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that population, whose number and strength could not precisely and quickly be ascertained." A quotation from the Supreme Court's 1988 decision blocking review of security clearance decisions? A quotation from some future Supreme Court decision upholding the USA Patriot Act? Nope, its a quotation from Korematsu v. United States, 323 U.S. 214 (1944), upholding the forced internment of Japanese-Americans in "relocation camps" during World War II. From Dred Scott to Bush v. Gore, the Supremes have had a hard time holding onto the Constitutional anchor in rough seas. That's why its important for us as ordinary citizens to stay true to our founding principles even if the people to whom we entrust our government institutions do not.

Whistleblower Protection - Get Serious

In the predictable hand-wringing that follows every man-made disaster, the media has again discovered that NASA could have or should have known more about the safety hazards in the space shuttle program. We'll be saying the same thing about the next disaster (which, contrary to what some people are saying, is not inevitable) unless we get serious about protecting whistleblowers.

There are few things any federal agency, including NASA, detests more than its own employees pointing out its shortcomings. They aren't called whistleblowers, but troublemakers, cranks and malcontents. Federal employees punished for blowing the whistle on cost overruns or safety hazards have tried for years to bring their complaints before a jury in open court, but the law doesn't allow it. This means whistleblowers who are fired or demoted have to appeal to another federal agency, the Merit Systems Protection Board, after which they have a limited right of appeal to a single specialty court in Washington, D.C., the Federal Circuit (formerly the Court of Customs and Patent Appeals).

This limited appeal process chews up whistleblowers and spits them out. You'd have to read some of the decisions to believe them. In one, MSPB ruled that an employee who protested an expenditure of $12,000 wasted on computer purchases is not protected by the law because it was such a "minor" expenditure. The Federal Circuit has decided that a whistleblower is not protected from reprisal if he tells his supervisor, instead of someone else, about the fraudulent or improper practice. Another Federal Circuit decision says that if a federal employee blows the whistle on violations of the law as part of doing his job, the whistleblower protection laws are inapplicable to him. One of the most astounding Federal Circuit decisions cautions federal employees that their motives for whistleblowing will be carefully scrutinized and warns them that there is a legal presumption that the officials they accuse of misconduct are performing their duties correctly "unless there is irrefragable proof to the contrary."

We tell any federal employees-NASA engineers included-who asks us whether to complain about unsafe or illegal practices in Government, "you have a choice, between your conscience and your career."

Whistleblowers are like cops-nobody likes them until you need one. It is past time for us to bemoan the fact that large organizations discourage and punish dissent. This has always been true and always will be true. Employees who are punished for blowing the whistle should be allowed to vindicate their rights in court like any other citizen. Even traitors and terrorists are entitled to a jury trial. Why are whistleblowers any less deserving of protection?

Remedy for EEO Violation

Congrats to Kevin Fornelius at Hill Air Force Base, Utah, for getting a good result from EEOC on an appeal of an arbitration decision. That's right, you can appeal an arbitrator's decision to EEOC if you believe the arbitrator did not properly apply the civil rights laws. In this case, the arbitrator found that management discriminated against an employee because of his disability by excluding him from consideration for a promotion because he had been "medically disqualified." However, the arbitrator found that the employee did not meet his burden of proving that he would have been selected for the promotion even without discrimination. The EEOC reversed, saying that once discrimination is proven, the civil rights laws cast on management the burden of proving by clear and convincing evidence that the employee would not have been promoted. EEOC awarded a retroactive promotion with back pay and also ordered management to consider disciplining the selecting official. Jesse D. Brown v. Air Force, EEOC No. 02A30003 (February 20, 2003).

Negotiate over Hazard Pay/EDP Coverage

Our thanks to Leo Spell at AFGE 3981 in Jessup, Georgia, for reminding us about the power of unions to negotiate specific situations that will qualify for hazard pay or EDP, under the decision in Dept of Veterans Affairs, 43 FLRA No. 42 (1991). The hazard pay regulations say that these differentials can be paid for exposure to toxic chemicals. The union sought to bargain over a proposal that would require hazard pay for exposure to tobacco smoke in the patient-care areas. FLRA said this was a valid proposal and that unions have the right to negotiate with management over the types of specific situations that will fall within the coverage of the general categories in the hazard pay regulations.

Formal Discussions about EEO Cases

There has been a lot of debate about whether formal meetings that occur in the processing of EEO complaints (like investigations of the complaint and settlement/mediation meetings) are "formal discussions" to which a union representative must be invited, whether or not the union represents the EEO complainant. The D.C. Circuit just issued a decision agreeing with the FLRA that these are formal discussions and the union is entitled to be present. Dover Air Force Base v. FLRA, 90 FEP Cases 1253 (D.C. Cir. 2003).

Public Comments on New Regulations

Federal agencies like MSPB, EEOC and OPM are always proposing new regulations and asking for comments on them before deciding whether to adopt them, but its hard to know about these proposals or to submit comments unless you read the Federal Register every day. Now, there is a new web site where you can look up all proposed regulations, just by typing in the agency that issued them, and submit your comment: www.regulations.gov. The law requires that your comments be considered and addressed when the final regulations are published. Next time the administration proposes another regulatory change to undermine the civil service system, you can be sure to get your "two-cents" in!

DOD FY 2003 Funding Bill

The DOD Appropriations Act for FY 93 (Public Law 107-248) contains some "presents" for employees in Defense agencies. Section 8012 bars the expenditure of any federal funds to influence Congress any pending legislation. The same language in funding bills in past years was interpreted by FLRA to allow unions to negotiate official time for lobbying a Congressional representative to introduce a law, but not to allow for official time to lobby for passage of a bill that has already been introduced. Minnesota National Guard, 56 FLRA No. 82 (2000). Section 8022 prohibits the expenditure of funds to perform any A-76 cost study if the study is going to last more than 24 months. Section 8149 says that no Defense employee shall be issued a government credit card without a credit check.


Leave Requests are Private

The decision in Doe v. Postal Service, 41 GERR 181 (D.C. Cir. 2003) shows how the Privacy Act and the Americans with Disabilities Act (ADA) can combine to provide an effective remedy for any employee whose medical information is not kept confidential. After a number of absences on sick leave, the agency told the employee he had to submit additional information justifying his absences. The employee submitted medical information showing he had been diagnosed with AIDS. When he got back to work, everybody knew about it; his supervisor let it slip after seeing the leave request. The Court ruled this violated not only the Privacy Act but also the ADA (which contains it own rules about keeping medical records confidential). The employee is eligible for an award of compensatory damages for emotional distress.