Minahan and Shapiro, P.C.

Attorneys at Law Daniel Minahan Barrie M. Shapiro

MINAHAN AND SHAPIRO, P.C. Attorneys at Law

Phone: 303.986.0054

FAX: 303.986.1137

165 S. Union Blvd. Suite 366 Lakewood, CO 80228

LAW FIRM NEWS September 2005

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. We also provide representation to Union members in MSPB appeals, EEO complaints and labor arbitration for reduced or flat fees if there is a chance we can obtain attorneys fees from the agency if we win. Check out our website at http://minahan.wld.com.

Nature’s Fury

Hurricane Katrina devastated New Orleans and the nearby Gulf coast over a week ago. The unconscionable government delay in providing safety, food, water and shelter to tens of thousands of city dwellers was even more devastating. Unlike the hurricane, that could have been prevented. Our thoughts and prayers are with everyone in the area, especially John Mechanic, Cheryl Berry-Smith, Dr. Don Fernandes, and all the other good folks of AFGE Local 1045 who care for our nation’s veterans at the VA Medical Center in Biloxi, MS. We urge all our clients and friends to join us in making a generous donation to the American Red Cross (www.redcross.org) on behalf of AFGE 1045 or helping out in any other way possible.

 No "Downsizing"

Two very encouraging decisions were issued in August setting back the administration’s efforts to eliminate federal employee jobs. The Department of Energy on August 2, 2005 sustained a protest filed by NTEU against an A-76 contracting out award which would have eliminated the jobs of about 70 maintenance employees. 43 GERR 770 - 771 (August 9, 2005). This is one of the first tests of OMB’s 2003 amendment to Circular A-76, which allows federal employee union representatives to challenge contracting out decisions. The Department of Energy agreed with NTEU that the process for cost comparison was flawed.

Another ruling issued by a federal judge in Pennsylvania plows new ground. In a decision reported by the Associated Press on August 26, 2005, U.S. District Judge John R. Padova enjoined Secretary of Defense Rumsfeld from deactivating a Pennsylvania Air National Guard Unit without the consent of the Governor of Pennsylvania. Judge Padova ruled that the National Guard is normally under the command of the Governor of each state and that the Base Realignment and Closure Act (BRAC) does not supersede the federal statute that requires the consent of a state governor to deactivate a guard unit.

"Public Policy" Violation

A recent ruling from the private sector may come in handy in federal sector employment cases. The U.S. Court of Appeals for the Tenth Circuit ruled in Mowry v. United Parcel Service 177 LRRM 2897 (10th Cir. 2005) that a driver who was fired for claiming compensation for a three hour break he took because of hazardous driving conditions is entitled to sue the employer on the basis that his termination is in violation of public policy.

Disciplinary Cases

Anyone who has represented employees in administrative proceedings knows how casual arbitrators and other hearing officers are about allowing the submission of almost any evidence. However, in Bartow Center 121 LA 249 (Kravit, 2005), the arbitrator ordered the reinstatement of a nursing home employee who had been fired for patient abuse, where the evidence against him consisted solely of hearsay. Although the patient was mentally competent, he had severe cerebral palsy and the employer said he was unable to testify because of his medical restrictions. A management official testified instead that the patient accused the employee of mistreating him. The arbitrator found this evidence insufficient to justify the employee’s termination, particularly since such a severe penalty was involved and since the charge of patient abuse "would be devastating to the grievant’s prospects for future employment."

In a much less encouraging development, the FLRA overturned an arbitrator’s decision to reduce a two-day suspension to a written reprimand in Social Security Administration 61 FLRA 92 (2005). The arbitrator upheld a charge against the employee of accessing the records of a relative, in violation of agency regulations, but determined that management failed to give sufficient weight to a number of mitigating factors and so reduced the suspension to a reprimand. The Authority, in a decision that contradicts 45 years of precedent dating back to the Supreme Court’s "Steel Workers Trilogy" overturned the arbitrator’s decision on the basis that the employee’s offense was serious and a two-day suspension was a proper penalty. The lone Democrat, Member Pope, wrote a blistering dissent criticizing the majority for usurping the arbitrator’s power to interpret the labor contract.

EEO Cases

In El – Hakem v. B J Y Inc. 96 FEP Cases 84 (9th Cir. 2005) the Court upheld an employee’s claim for racial harassment based on a supervisor’s insistence on "Westernizing" the employee’s Arabic name –"Mamdouh" to "Manny." The Court found that the supervisor’s refusal to call the employee by his given name in the face of the employee’s repeated objections amounted to racial harassment.

Human Fodder

Just when you thought you’d heard enough from us, here’s a recent article from someone much more articulate! This article was published in the recent edition of "PEER Review," a newsletter by the Public Employees for Environmental Responsibility (www.peer.org). The author is Jeff Ruch, PEER’s executive director. With Jeff’s permission, here it is:

The National Park Service recently created a new Associate Director position for "Human Capital." According to Interior Deputy Secretary Lynn Scarlett, the reason for this slot is that it "affirms our commitment to raising the importance of our human capital to equal that of our financial capital."

Things are pretty bad when the Bush administration feels compelled to announce that it aspires to start valuing federal employees just as much as it now values agency reserve funds, accounts receivable and other financial capital. At least it is Human Capital and not Human Cattle, though it might as well be.

As the seemingly interminable Bush years drag on, public servants (AKA human capital) are beginning to get desperate because it is getting harder and harder to make genuine progress in federal service. Increasingly, the only remaining measure of pride is helping their agency avoid doing bad things, rather than affirmatively accomplishing anything good. This makes for a thin gruel, indeed.

Consequently, our intake load is growing, as scientists, cops and attorneys find themselves serving political appointees dedicated to undermining the very mission of the agencies they occupy. These professionals are seeing the reason that they entered public service evaporate. Some react with anger or sadness. For a few, it is utter despair.

Thus, PEER acts as a giant battered staff shelter for federal workers. We try to provide aid, comfort and advice. In some cases, we are called to fight on their behalf. In many cases we identify constructive outlets so that public servants can unofficially channel their frustrations into activism.

There are approximately a quarter million environmental professionals working at all levels of government. If all of these specialists were simply allowed to do their jobs, the world would truly be a better place. PEER’s role is to help these legions of highly trained workers directly participate in the environmental movement when their jobs have been stripped of benefit to the public interest.

The federal hallways are full of wise heads who know how our government could do better. When one or two well-informed, strongly motivated insiders decide to move beyond the water cooler and into action, it can produce very impressive results, as this newsletter summarizes each quarter. This is the force of human capital that the Bush administration would like to keep bottled in a reserve account.