September 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 http://minahan.wld.com.

New Twist on "Weingarten"

The Fourth Circuit ruled in a private sector case that an employee who was under investigation had the right to chose the specific union representative who would accompany him to the meeting. Anheuser–Busch Inc., v. NLRB, 172 LRRM 3214 (4th Cir. 2003). The Court found that employees have an interest in selecting among available stewards in order to obtain one with more experience or more knowledge of the employee's situation. It's an open question as to whether the same result would occur in the federal sector. The "Weingarten" right in the private sector was derived from the section of the National Labor Relations Act which gives individual employees the right to join together for mutual protection. In the federal sector, 5 USC 7114, says that "an exclusive representative" shall be given the opportunity to be represented at "weingarten" meetings. The exclusive representative, of course, is the union.

Unlawful Fitness for Duty Exam

We want to remind clients again that there is a little known provision of the Americans with Disabilities Act which protects all employees, not just those with disabilities. The ADA prohibits employers from forcing employees to submit to medical examinations unless the examination is job related and consistent with business necessity. In Amen v. U.S. Postal Service, EEOC No. 07A10069 (January 6, 2003), the EEOC awarded $50,000.00 in emotional distress damages to an employee who had been subjected to an unnecessary medical exam.

Medical Information Found Necessary

In contrast to the Amen decision, the Court in Dyrek v. Garvey, 14 AD Cases 886 (7th Cir. 2003), ruled against the employee because he did not submit sufficient medical documentation. The employee was an Air Traffic Controller with diabetes and the FAA insisted on receiving detailed medical information showing his diabetes was under control. Ultimately, the FAA disqualified the employee from his job. This another reminder of how important it is to provide your agency with all the medical information they are asking for when it is needed to assess your fitness for duty.

Reliance on Doctor's Report

In another ADA case, the employer argued that it was entitled to reject a job applicant based on a pre-employment medical exam which said that the applicant "may have difficulty" near dust and fumes. The employer interpreted this as a complete ban on working near dust and fumes and did not change its mind after receiving a written report from another doctor indicating that the applicant was medically qualified to perform the essential duties of the job, with accommodations. The Court ruled that the employer's refusal to hire the employee violated the ADA. Ollie v. Titan Tire Corp., 14 AD Cases 993 (8th Cir. 2003).

Defense to Equal Pay Act Claim

The Equal Pay Act requires that males and females performing substantially identical work be paid the same. The advantage of the Equal Pay Act is that it does not require proof of an intent to discriminate on the basis of sex, as does Title VII of the Civil Rights Act. The Equal Pay Act, however, provides employers with a defense if they can show that the difference in pay is due to a "merit system." In Schoch v. Dept. of Commerce, EEOC No. 01A13876 (2002), the EEOC found that the agency satisfied this defense based on an agency policy prohibiting the promotion of non-supervisory personnel to supervisory positions by accretion. The fact that this agency required all such promotions to be subject to competition was found to be a defense to the disparity in pay between the two positions.

Nice Try

It's always good to see an arbitrator who tries to provide a meaningful remedy, even when he does it the wrong way. In Environmental Protection Agency, 58 FLRA No. 122 (2003), the arbitrator found that the agency violated its policy by not conducting interviews for a vacancy and as a remedy, ordered the agency to pay the union $10,000.00. Unfortunately, the arbitrator also found that this violation of agency policy did not affect the outcome of the promotion action and that the person selected to fill the vacant position was not given preferential treatment. Based on this, the FLRA set aside the award.

Remedy on Promotion Case Upheld

There was better news in the FLRA's decision in Social Security Administration, 58 FLRA No. 98 (2003). The case involved the union's challenge two selection actions. The arbitrator found that there was improper pre-selection in one of the selections and that the other selectee was not qualified for promotion under the labor contract. As a remedy, the arbitrator directed the agency to remove the two selectees from their respective positions, to resubmit the original list of candidates and rerun the selection process, giving priority consideration to one of the grievants. The FLRA upheld the award.

Reprisal Proved

In EEOC v. Koehler Co., 92 FEP Cases, 331 (8th Cir. 2003), the Court ruled that it was improper for the lower Court to set aside a jury verdict in favor of an employee who claimed reprisal. The employee alleged that he was discharged for complaining about racial discrimination. The employer pointed out that the employee was clocking in early and leaving early and that it had a "zero tolerance" policy against this sort of behavior. The Eighth Circuit ruled that even though the employee had committed misconduct his discharge was still unlawful because it occurred so soon after he complained of race discrimination, because there was evidence that the plant manager was upset by that allegation and because there was evidence that other employees who clocked in early and left early were not disciplined or received lesser penalties.