MINAHAN AND SHAPIRO, P.C.

ATTORNEYS AT LAW

The Supreme Court recently answered a question that had been dividing the lower courts. Earlier Supreme Court decisions said that employers were automatically liable for sexual harassment when it resulted in a "tangible action" such as a loss in pay, a change in hours or a termination from employment. Some courts have ruled that a constructive discharge, when an employee quits because working conditions are intolerable, counts as a "tangible action." The Supreme Court said this is only partly true. An employee who resigns under intolerable conditions that have been caused by the employer and are the actions of the employer (such as change of hours, reassignment to a new office) can hold the employer automatically liable. For all other cases where the intolerable working conditions are not created by the employer itself, such as a rouge supervisor's sexual behavior with an employee, the employer is not automatically liable and the employer will be allowed to try to prove that the employee should have complained about the behavior much earlier. Pennsylvania State Police v. Suders, 93 FEP Cases 1473 (2004).

• It was good to see the D.C. Circuit reverse one of the strangest FLRA decisions in years. The case involved bargaining over employee and visitor parking. The FLRA ruled against the union because, on notice of the change, the union submitted only 5 initial proposals. The court ruled that the union's proposals simply initiated the bargaining process. The court found nothing in the labor contract that required the union to put all possible proposals on the table within 15 days. The FLRA also ruled that patient parking was involved so the union had limited bargaining rights. Again, the court wondered where that finding came from and ruled that the changes to the parking policy involved in this case "directly governed employee parking." NAGE Local R5-136 v. FLRA, 174 LRRM 2806 (D.C. Cir. 2004).
• In NFFE Local 1442 v. FLRA, 174 LRRM 3256 (D.C. Cir. 2004) the court overturned the FLRA's decision that the union had waived its right to bargain. The union received notice of the projected closure of childcare centers three years ago. More recently, the union was notified that the change had not occurred and that management intended to implement its policy a different way. FLRA dismissed the ULP charge on the basis that the Union waived its right to bargain by not responding to the notice three years ago. The Court reversed FLRA, finding that the more recent notice was significantly different than the first notice and that the union had the right to bargain.

• FLRA made a helpful decision in Social Security Administration, 59 FLRA No. 130 (2004). The agency removed an employee from the position of acting hearing office chief judge because she was a union officer. The FLRA found this to be an unfair labor practice, noting that the employee was only a temporary stand-in for the chief judge and that the duties she performed while in this acting capacity were routine in nature and did not require the consistent exercise of independent judgment.
• In U.S. Army Reserve Personnel Command, 58 FLRA, No. 71 (2003), an arbitrator awarded backpay to a number of grievants because of their performance of higher graded duties. The FLRA reversed, saying there was nothing in the labor contract that required temporary promotions for higher graded work. In particular, the FLRA suggested that without specific language of that nature, general language requiring fair and equitable treatment would not be enough to trigger the right to backpay.

• DOD employees who want to peek into what things would be like under the National Security Personnel System should consider the plight of Title 38 professionals under the VA system. The case of Department of Veterans Affairs, 59 FLRA No. 55 (2003) involved a grievance challenging the reassignment of nurses from one site to another without completing negotiations. An arbitrator found that the agency violated the labor contract and ordered appropriate relief. The FLRA reversed. It noted that while the grievance was in process the local facility obtained a declaration from the VA central office under 38 USC 7422. This allows VA Headquarters to declare any grievance non-grievable on the basis that it "arises out of professional competence."

• In Back v. Hastings on Hudson, 42 GERR, 377 (2^nd Cir. 2003) the court dealt with a case involving stereotypical views of women. The employee was a young mother who was in her first year of employment as a school psychologist. Numerous comments were directed toward her regarding her status as a young mother. In one instance, she was told that it was not possible for her to be a good mother and have this job. The court ruled this was discrimination.
• A police officer successfully proved that his employer's order for him to obtain the psychological exam was a form of reprisal. The McGreal v. Ostrov, 21 IER Cases 411 (7^th Cir. 2004). The police officer made a number of "whistleblower" disclosures about fraud and corruption in the department. When he was ordered to take a psychological evaluation and then fired, the court ordered him reinstated, finding that he had been subjected to reprisal.
• You would think that an employee with the very serious mental illness called Bi-polar disorder would be regarded as a person with a disability. Siderbuam v. New York, 15 A.D. Cases 728 (S.D.N.Y. 2004). The applicant was rejected for certain jobs because of his bi-polar disorder. The court held this did not mean he was disabled because he was eligible for other motor vehicle operator and city sanitation positions. The problem was that he claimed his condition interfered with the major life activity of working. His case might have a better outcome if he alleged his condition interfered with other major life activities, such as sleeping and interacting with others.
• Reasonable accommodation: No shift work? It is common for employers to tell disabled employees that they will have to be separated from employment if they can't work rotating shifts. The employer argues that this is an "essential job function" of the position. It was a different outcome in Rodal v. Anthesia Group of Onondaga, 15 A.D. Cases 973 (2^nd Cir. 2004). Even though the employee in that case had always performed night and weekend work before his illness, the court observed that the employer had accommodated his request to be relieved of night and weekend shifts for a number of months. Under these conditions, it was hard for the court to conclude that night and weekend work were essential job functions and that putting him on permanent day shifts was a reasonable accommodation.

It is generally agreed that it is a violation of an employee's fundamental rights to discipline him twice for the same misconduct. The employee in Hydro Aluminum, 119 LA 449 (Cloke 2004) committed a safety violation by forgetting to tag out a dangerous machine. The employer suspended the employee for three days. After serving the suspension, the employee returned to work and was fired. Arbitrator Cloke quickly ruled that the termination was improper and that the employee must be reinstated with backpay.