LAW FIRM NEWS

MINAHAN AND SHAPIRO, P.C. Lakewood, Colorado

May 2003

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.

Is DOD Next?

Following on the administration's success

in carving the new Department of Homeland Security out of the civil service system, the Department of Defense has now introduced a bill in Congress that would achieve the same result. The bill would add a new Chapter 99 to Title 5 of the US Code. It would allow the Secretary of Defense to take any and all defense organizations out of the civil service system. The result would be the end of collective bargaining, labor contracts and appeal rights as they now exist. There is lots of language in the bill about how employees ought to be treated fairly under the new system but the fundamental flaw is the elimination of third party review. If employees and their unions cannot appeal to outside entities such as labor arbitrators, FLRA or MSPB, then the filing of any appeal will be nothing but a useless exercise in trying to get the employer to disagree with itself. This legislation would eliminate rights that in some cases have existed since the 1800's. We urge all clients to oppose this legislation as vigorously as possible.

Bargaining On Expense Reimbursement

The FLRA issued another decision in a case which has been bouncing back and forth between FLRA and the D.C. Circuit. The case of Puerto Rico Army National Guard, 58 FLRA No. 75 (2003), involves whether a proposal by the union to require employees to be reimbursed for out-of-pocket expenses when scheduled leave is canceled is negotiable. The D.C. Circuit sent the case back to FLRA after the union suggested that the labor statute itself was authority for the proposal since it requires federal agencies to negotiate over working conditions. The FLRA, however, ruled that the proposal was non-negotiable because there was no law specifically authorizing this kind of expenditure. Of course, the union's point was that there was no law prohibiting it. If there must be a specific statute authorizing every expenditure which could result from a union proposal, then provisions in labor contracts calling for a union office, vending machines for employees or temporary promotions for higher graded duties could be non-negotiable too. Perhaps the union will appeal again to the D.C. Circuit.

Deadline for Proposals

The recent decision in VA Medical Center, Charleston South Carolina, 58 FLRA No. 104 (2003), produced some sharp disagreements between the 2 Republicans and 1 Democratic members of the FLRA. The majority opinion ruled that no ULP was committed when the only proposal submitted on a timely basis in response to a notice of a change in working conditions was non-negotiable. The dissent agreed that the labor contract required proposals within 15 days of notification but saw no basis for the majority's opinion that additional proposals could not be put forth. The lesson here is to get deadlines for making proposals out of your labor contracts. Under the law, unions have the right to submit proposals within a reasonable time after notification of changes from management. Unions should avoid agreeing to contract language that requires specific bargaining proposals to be made in a set number of days.

Reprisal on Performance Appraisal

A union steward recently won an arbitration alleging that his performance appraisal was lowered due to union activity. The arbitrator noted that the steward was an active representative and had 8 years of excellent appraisals. The combination of some negative remarks about the union by the supervisor plus the fact that the steward's rating was lowered drastically just months after contract negotiations persuaded the arbitrator that the steward's protected activities were the reason for the lower rating. The arbitrator ruled in the union's favor. Naval Surface Weapons Center, 118 LA 55 (Allen, 2003).

Harsh Punishment is Unconstitutional

If large corporations have the right to be protected from harsh punishment, do employees have the same right? On April 7, 2003, the Supreme Court issued its decision in State Farm Insurance v. Campbell. The Court ruled that State Farm had been deprived of its right to due process under the U.S. Constitution when a jury awarded $145,000,000.00 in punitive damages after State Farm refused in bad faith to pay an insurance claim. The Court said that the disparity between the punitive damage award and the compensation that the policy holder actually lost was so extreme that it violated due process. Does the same principle hold true if a career federal employee earning $50,000.00 per year is fired for falsifying a travel voucher and pocketing $25.00 to which he was not entitled? We shall see. . .

EEO Cases

• In an interesting decision involving a federal manager, a court ruled that the protection against reprisal for participating in the EEO process does not extend to employees who oppose the EEO complaint. In Twisdale v. Snow, 91 FEP Cases 706 (7^th Cir. 2003), an IRS branch chief participated in the investigation of an EEO complaint filed against him by one of his employees. Later, he claimed he was retaliated against by senior managers because he spoke out against the employee's complaint. The court held that Title VII does not protect this type of activity.



• Employers defending EEO complaints based on non-selection for a promotion often claim that the complainant has no case if the person promoted was also well qualified for the job. The decision in David v. Caterpillar Inc., 91 FEP Cases 528 (7^th Cir. 2003), shows this is not always true. In that case, the person who was promoted was well qualified but the court found there was evidence that the employer retaliated against the complainant by urging the selectee to apply for the job even though she had never expressed an interest in it.

Doctor Knows Best

Employees who seek a reasonable accommodation under the ADA for their disabilities will have a hard time going against their doctor's own advice. In Alexander v. Northland Inn, 14 AD Cases 97 (8^th Cir. 2003), a housekeeper was not able to continue vacuuming because of neck and back pain. The employer sent her job description to her doctor and in response got a list of permanent work restrictions that included no vacuuming. The employer removed her from employment for medical inability to perform. After she was discharged, her doctor released her from the restrictions and said she could go back to vacuuming. The court held that the employer was entitled to rely on what the doctor said before the employee was fired and ruled against the employee.

Bonehead Decision

It's only May but we think this decision may qualify for the "bonehead decision of the year." Fairclough v. Board of Commissioners, 91 FEP Cases 268 (D.Md. 2003), involved an employee who alleged that he had been fired because of religious discrimination. The federal judge in Maryland ruled that a remark by a management official, "that's what I would expect from a Jew," was not direct evidence of religious discrimination because the remark was made only once, was made 6 months before the termination, and the manager who made the remark was not the one who fired the employee.