February 2004



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.

DOD Update

Union locals in the Department of Defense are getting their first taste of the new DOD bill, which yanked them out of the federal civil service. The bill has now been designated Public Law 108-136. Public laws may be accessed at www.gpo.gov. Remember this is a huge law and only one part of it (Title XI) contains the civilian personnel changes. DOD has now begun asking Unions for input on the design of the new “national security personnel system.” There are some things in the bill that, we hope, will keep the new system from becoming a total farce. The bill says that 5 USC 2301 (Merit System Principles) and 5 USC 2302 (Prohibited personnel practices) remain unaffected by the law. In particular, this preserves the rights of all DOD employees to pursue EEO complaints and claims of whistleblower reprisal as before. The bill also preserves 5 USC Chapter 55, which is nice because it includes the Backpay Act (5 USC 5596). The bill authorizes DOD to create its own appeals system for employee discipline, but it requires that due process be guaranteed and it requires DOD to follow the law and case decisions from MSPB in effect at the time the new system is created. What the bill does with 5 USC Chapter 71 is bizarre. At one point, this chapter, which contains all the labor relations rules, is listed as non-waivable. A few pages later, it is listed as waivable if DOD wants to establish its own labor relations program. One of the requirements of any new system, however, is “independent third party review of decisions.” What could this mean other than the third party review we already have? (FLRA, FSIP, Labor Arbitration). It is certainly possible to designate arbitrators to resolve bargaining impasses, but why pass up the accumulated expertise of the FSIP?

Union Representation at Prison Search

A recent decision by the FLRA involved a Bureau of Prisons facility which challenged the requirement in a collective bargaining agreement that a Union representative be present when an employee's desk or work station is searched. The arbitrator enforced the requirement for Union representation and management appealed to the FLRA. FLRA upheld the requirement as an appropriate arrangement for employees adversely affected by searches of employee work areas. Federal Bureau of Prisons, 59 FLRA No. 90 (2003).

No Access to Court for Classification

In yet another ruling showing how far the federal courts will go to avoid handling classification disputes, the Third Circuit dismissed a lawsuit filed by a group of Navy employees. Hinkel v. England, 41 GERR 1170 (3rd Cir. 2003). The employees alleged that the Human Resources Department conducted a desk audit and found that the employees were doing higher graded work, but the director of the facility refused to implement this finding. The court concluded that misclassification is a type of prohibited personnel practice. This being the case, the Office of Special Counsel (OSC) is empowered to investigate and correct misclassifications. (We wonder if anyone told the court how many times OSC has actually found a misclassification and corrected it). The court ruled that OSC has the power to deal with misclassification and so the court should not be involved.

Proof of discrimination

Whether an employer followed its own affirmative action plan is often useful in proving discrimination. The reason is that the employer by developing this plan has signaled its intention to diversify its work force and to exert a special effort to hire and promote people from underrepresented groups. In City of Norwalk v. Commission on Human Rights, 41 GERR 1104 (Conn. 2003), the court ruled a Black teacher who was not hired even though the employer had announced that it was trying to hire qualified minorities had stated a good case of discrimination.

Shooting your EEO Case in the Foot

Most clients know that the goal of an EEO case is to prove that the explanation offered by an employer is a sham and is unworthy of belief. The hope is that a judge or a jury will believe the employer is concealing its true motivation, which is unlawful discrimination. Neal v. Roche, 41 GERR 1195 (10th Cir. 2003), shows what happens when you are “too successful” in defeating the employer's explanation. The plaintiff in that case complained that her non-selection for a promotion amounted to race discrimination. The federal agency (Air Force) maintained that it had chosen the best-qualified applicant. As the case went on, it became clear that the White applicant was not as qualified as the plaintiff. It also became clear that the selecting official chose the White applicant for promotion to prevent her from losing her job in a reduction in force. The court ruled that this evidence not only showed that the employer's explanation was pretextual but also showed that the reason for the promotion was personal favoritism and not race discrimination against the plaintiff. The plaintiff's case was dismissed.

“Regarded As” Disabled

The ADA protects not only employees with actual disabilities but employees who are regarded as disabled by their employers. The case of Gallups v. Alexander City, 41 GERR 1173 (M.D. Ala. 2003), involved an employee who needed to take medication for anxiety and depression. The employee's evidence included statements by his supervisors, once they learned he was taking medication, that he was crazy or not right in the head. The judge found that the employee was fired not because of performance deficiencies but because the employer was uncomfortable employing an individual on medication for a mental impairment.