July 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.


No Second Term

Anybody wanting a sneak peak at what could happen if President Bush is reelected should check out "Downsizing the Federal Government" by Chris Edwards. Mr. Edwards works at the Cato Institute, a conservative think-tank in Washington, D.C. Lots of people have been worried about how we will ever get the budget balanced again with all the recent tax cuts for the wealthy. It's no problem for Mr. Edwards. He estimates that if his proposals were enacted, the budget would balance in just a few years. All that needs to be done is to downsize or privatize the following government departments: Department of Agriculture, Department of Commerce, Department of Education, Department of Energy, Department of Health and Human Services, Transportation Security Administration (US airports, air traffic control and airport security should be privatized.), Department of Housing and Urban Development, Department of the Interior, Department of Labor, Department of Transportation, the Army Corps of Engineers (the Army Corps hydroelectric power projects would also be privatized), NASA, and the Postal Service (privitize the whole thing). Boy, that's a lot of savings! Think of all the money that will be available to pay to survivors of workplace accidents and to pay for special screens and filters to keep toxic urban clouds out of our homes. To read the whole report go to www.cato.org/pubs/pas/pa-515es.html.

Constructive Discharge and Sexual Harassment

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).





"Double Jeopardy"

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.