April 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 web site at http://minahan.wld.com .

Privacy Rights

We are pleased to report a favorable decision on a Privacy Act grievance at Robins Air Force Base, Georgia. The FLRA sent the case back to the Arbitrator after determining that the Arbitrator has the same power as a Court to award damages for Privacy Act violations. The Arbitrator ruled that the Agency willfully violated the Privacy Act by allowing a co-worker to inspect the grievant's personnel records and awarded $1,000.00 for each incident when this occurred.

In another recent arbitration decision, the Arbitrator sustained a grievance alleging a violation of the Privacy Act on the basis that the Agency obtained the grievant's medical records from her personal physician without asking her permission first. The Arbitrator reminded the Agency that the Privacy Act requires federal agencies to gather information to the greatest extent practicable directly from the employee. Department of Veterans Affairs, 117 LA 1313 (Singer, 2002).

Right to Recover Part of Savings to Government

A somewhat obscure type of lawsuit is a "qui tam" case. This type of case allows a person who has reported fraud, waste or abuse to recover a portion of the money the government gains from the report. There has been some controversy over whether federal employees are entitled to file these types of cases, since they are required to report fraud, waste and abuse as part of their jobs. The Tenth Circuit ruled in favor of a federal employee qui tam suit in United States Ex rel. Holmes v. Consumer Insurance Group, 41 GERR 211 (10th Cir. 2003). Ms. Holmes is a postmaster in Colorado who in the course of her job learned that a customer was defrauding the government and costing the government about $200,000.00 per year.

"Regarded as" Disabled

The Second Circuit issued an interesting decision in Peters v. Baldwin School District, 13 AD cases 1793 (2nd Cir. 2003). The Court ruled that an employee who made a suicide threat in jest was regarded as disabled and covered by the ADA.

"Continuing Violation"

The Tenth Circuit's recent decision in Boyer v. Cordant Technologies Inc, No. 01-4205 (January 16, 2003) shows how the Supreme Court's recent decision on continuing violations (the "Amtrak" case) falls apart under careful analysis. The "Amtrak" case ruled that EEO complaints must be filed within 45 days of "discrete" acts such as denial of a promotion or removal from employment, but that a series of acts which, taken together, amount to unlawful harassment do not each trigger this 45 day period. In Boyer, the employee complained of a series of acts dating back to 1982, including a supervisor telling a racial joke, another racial joke being left on her desk, the use of a racial epithet in her presence and co-worker comments that they were afraid to work with her because of her race. The Tenth Circuit found that these were not "discrete" acts but were part of a continuing violation and were all properly included in her complaint. Why a racial epithet is not a discrete act and denial of a promotion is a discrete act is hard to figure out. What would the Court do if a minority employee was turned down four times for a promotion and the fifth time discovered that all the selectees were non-minorities?

Compliance with Procedural Requirements in Grievance/Arbitration Articles

A recent arbitration decision puts some much-needed common sense into the procedural requirements of labor contracts. An agency objected that a union should not be allowed to call witnesses at an arbitration hearing since it did not provide the agency with a witness list as required by the contract. The arbitrator noted that the contract did not specify a penalty for failure to give the agency the list and that it would be unfair to stop the union from calling witnesses. The same philosophy deserves to be applied in other similar situations, such as where a grievance is filed or elevated to the next step a couple of days late or where the union wants to raise an additional claim, such as discrimination or reprisal, based on the same set of facts later in the grievance process.

DFR: You Can't Do That!

Nobody likes "free-riders" but you can't blatantly discriminate against non-members of the union in the grievance process. The decision in AFGE Local 3354, 58 FLRA No. 48 (2002), involved a grievance settlement where the Agency promised to pay $75,000.00 to a common fund. All union members who submitted claims to be paid out of that fund were paid and all of the non-members who submitted claims were not paid. Needless to say, FLRA ruled against the union and ordered the union to make financial payments to 8 non-members. The lesson is that if a union is going to deny claims for payment out of a "settlement fund" set up for a group of employees, the union's decision must be based on the merits of the particular employee's claim, not on whether the employee is a member of the union.

Proposal on Investigative Interviews

A union representing Bureau of Prisons employees proposed during negotiations that when an employee is being interviewed during an official investigation, he or she shall be granted at least one 10 minute break every hour an a half. This was ruled to be a negotiable proposal in Federal Bureau of Prisons, 58 FLRA No. 24 (2002) (proposal 2).

Arbitration: You Need the "But For" Finding

The decision in Federal Medical Center

Carswell, 58 FLRA No. 54 (2002), involved an arbitrator who awarded a grievant a promotion with backpay. The grievant alleged that she had been denied the opportunity to take a particular training course, which hindered her career advancement. The arbitrator not only directed the agency to give her the training course but directed that she be promoted. The FLRA overturned the award. Noting that there was no vacant position into which the grievant could be promoted and that she had never applied for a promotion to such a position anyway, the FLRA found that the arbitrator's award did not reflect what would have occurred to the grievant "but for" the violation found by the arbitrator.

Labor Relations Specialist Binds Management

We shook our heads when we came across a very old decision in Social Security Administration, 9 FLRA No. 58 (1982). The reason is that the agency in that case raised the same type of defense agencies still raise today. The agency refused to abide by a memorandum of understanding negotiated between the union and the agency's labor relations specialist. The agency argued that the labor relations specialist was its representative in a general sense in that he was allowed to deal with the union but that he was not an agent with the power to bind the agency. The FLRA brushed this aside and found that a ULP had been committed. It is a measure of the ineffectiveness of FLRA remedies that this type of behavior is still occurring more than 20 years later.