July 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 website at

Illegal Performance Appraisal

We are pleased to report an arbitration decision in favor of an officer of one of our clients, the United Power Trades Organization. Arbitrator David Gaba ruled on May 30, 2003, that the officer's annual performance rating was invalid and must be raised, since he was not told that his performance was slipping before he got his annual rating. Significantly, the Arbitrator also ruled that the lower performance rating was in reprisal for the officer's Union activities. He directed the Agency to raise the overall rating to "excellent." U.S. Army Corps of Engineers, Northwestern Division. The brief we submitted to the Arbitrator in that case surveys the law and case decisions on performance appraisals and proof of anti-union reprisal. Clients who think

this brief might help them on their own cases can contact us and we will e-mail a copy.

Hazard Pay: Environmental Tobacco Smoke

Congratulations to Leo Spell of AFGE Local 3981 for winning an arbitration case involving employee exposure to tobacco smoke. This union represents employees at the Federal Correctional Institution in Jesup, Georgia, who are exposed to smoking by inmates in confined areas. Arbitrator Bairstow issued an award on May 27, 2003, ordering the Agency to negotiate with the Union over the payment of hazard pay to the affected employees. The Arbitrator relied in part on Department of Veterans Affairs, 43 FLRA 414 (1991), in which the Authority ruled that hazard pay for GS employees exposed to tobacco smoke is negotiable.

Proof of Discrimination

The Supreme Court issued an important EEO decision on June 9, 2003, in Desert Palace, Inc. v. Costa. The case involved the type of evidence necessary to shift the burden of proof to the employer to show that it did not discriminate against the employee. For many years, most courts had assumed that only "direct" evidence would be enough to accomplish this. For example, if the supervisor who decided to fire the employee or not promote the employee made some disparaging remarks about women or minorities, this would be "direct proof" of discrimination and would require the employer to show that it would have made the same employment decision even in the absence of discrimination. The Supreme Court ruled that direct evidence is not required. According to the Court, any evidence, direct or indirect, that shows that an employee's protected status was one of a number of motivating factors for the personnel action is sufficient. Ms. Costa was the only woman working in a warehouse and was fired for getting into an argument with a male co-worker. She introduced evidence that she was treated less favorably than men in the assignment of overtime and received harsher discipline than men for the same conduct. The Supreme Court ruled this was enough to require the employer to prove that she would have been fired anyway even if she were not a woman.

Pay Cases

The decision in U.S. Penitentiary, Terre Haute, Indiana, 58 FLRA 327 (2003), involved an old part of the Fair Labor Standards Act called the "Portal-to-Portal Act." The employees, who are prison guards, argued that they should be compensated from the time they report to the prison entrance to the time that they reach their work stations inside the security perimeter. The Authority disagreed, saying that the FLSA does not allow for employees to be paid for time spent traveling to and from the actual place of performance of their principal activities, even if it is on the employer's premises.

The decision in Ft. Carson, Colorado, 58 FLRA 244 (2002), involved employees who are FLSA exempt who claimed stand-by pay under Title 5 of the U.S. Code. The employees were required to remain in an on-call status, ready to report back to work if paged. The FLRA concluded that their off-duty time could not be considered "hours of work" and so they were not entitled to stand-by pay. The Authority ruled that the employees were not substantially restricted in their off-duty activities since they were free to leave their living quarters so long as they left a phone number where they could be reached.

Employee Liability for Damage

The decision in Blue Grass Army Depot, 58 FLRA 314 (2003), involved an employee who was held financially liable for damages he caused to a government owned truck. The employee filed a grievance and argued that he was not negligent in connection with the accident. The Arbitrator agreed and ordered the agency to rescind the employee's financial liability. The FLRA upheld the award.

Honest Mistake No Excuse for ULP

In Dept. of Veterans Affairs, 58 FLRA 261 (2002), the agency was charged with implementing a new policy without completing bargaining. The agency defended itself by saying that it had negotiated with the Union in good faith and left the final bargaining session with an honest belief that the parties had reached an agreement. The Authority ruled that the agency's negotiators may have held this honest belief, but it was mistaken. There was no agreement and so the agency was ordered to rescind its new policy.

Reassignment for Disabled Employee

The Americans with Disabilities Act (ADA), requires employers to consider reassigning a disabled employee who can no longer perform her job. Many employers argue that "consideration" is all that is required and that if a better-qualified candidate is available for a particular vacancy they can refuse to reassign a disabled employee to the vacancy. The EEOC ruled in Smith v. White, EEOC No. 03A20073 (May 15, 2003), that this is not true. According to the EEOC, if a disabled employee who can no longer perform her job for medical reasons meets the basic qualifications for a vacant position, the employee must be reassigned to that position.

New A-76

The Office of Management and Budget (OMB) issued a new version of Circular A-76 on May 29, 2003. This is the regulation that controls contracting -out decisions in the federal government. It may be accessed at It creates a new streamlined competition process for activities involving 65 or fewer positions and it allows no party to appeal any aspect of a streamlined competition. For all other competitions, it allows any interested party to challenge a contracting out decision, and it includes labor unions in the definition of an interested party. It also changes the appeal process by requiring all appeals to follow the procedures in 48 CFR 33.103. This regulation requires the filing of protests within 10 days after the contract award and requires the contracting out decision to be suspended pending resolution of the protest.