MINAHAN AND SHAPIRO, P.C. Attorneys at Law


Attorneys at Law Daniel Minahan Barrie M. Shapiro

Phone: 303.986.0054

FAX: 303.986.1137

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


December 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.

The Cost

We would like to ask all of our friends in the federal sector to take a moment this season to remember Joey Nolan, the son of one of Dan's cousins in Connecticut. Joey's dad got the worst news any dad can receive last week. He was informed that Joey had been killed in action in Fallujah. That's close to 2,000 reasons why this war makes no sense. Please say a prayer for Joey and his family and ask that God's peace will comfort them.

It's About Time for Travel

One of the long standing abuses in federal employment is the law that says that time spent traveling outside duty time is not considered "hours of work" and so cannot be compensated. Congress finally fixed this, though with compensatory time and not overtime. The bill is S. 129, which has now been enacted into law, and which amends 5 USC 5550b. The law now provides that each hour in a travel status is treated as an hour of work for purposes of calculating compensatory time off.

More Rules for Unions

The Bush administration continues its assault on Unions by drowning them in paperwork requirements. First, there was the proposal to require Unions to give more information in the forms they file with the Labor Department. Now, the Labor Department has proposed a rule about publicizing the Union members' "Bill of Rights" from a law passed back in the 1950's. 69 Federal Register 64226 (November 3, 2004). According to the proposed rule Unions would have to inform all their members of such rights as the right to participate in Union activity, the right to freedom of speech and the right to have a voice in setting dues rates. Another interesting provision would allow the Labor Department to investigate and prosecute violations of the rule on its own instead of waiting for complaints from members. Comments are due by January 3, 2005, after which the Labor Department will issue its final rules.

It's Not Backpay

Following the lead of a D.C. Circuit decision about 10 years ago, the FLRA continues to strike down arbitrator awards of financial compensation unless they fit within the framework of the Backpay Act. The rationale is that the Backpay Act is the only waiver of sovereign immunity that would allow the government to pay money to employees. In Federal Bureau of Prisons, 59 FLRA No. 147 (2004), the arbitrator found that the agency improperly required an employee to obtain medical documentation for a short absence. As part of his remedy, the arbitrator ordered the agency to pay the employee's co-pay and mileage expenses for his doctor visit. The FLRA set aside the award on the basis that it amounted to money damages not covered by the Backpay Act.

Walking Out of a Meeting

The decision in Internal Revenue Service, 60 FLRA No. 50 (2004), involved an employee who filed a grievance over a counseling memo. The supervisor called him into a meeting about the grievance at which point he said he wanted a Union representative. She refused to allow this and he left the meeting without permission. For this, the agency suspended him. The FLRA said this was an unfair labor practice. They ruled it was improper for the supervisor to call the employee into a meeting to discuss his grievance and that his decision to walk out of the meeting without permission did not amount to "flagrant misconduct" and so was protected by law.

No Leg? No Disability?

It is always amusing to watch how far right-wing judges will go to repeal the Americans with Disabilities Act. The Supreme Court has sharply limited the reach of the ADA over the past 10 years, ruling that disabilities just about have to keep you from working before they are covered by the ADA. The Texas Supreme Court was faced with a woman whose leg was amputated at the knee and who uses a prosthesis and walks with a limp. In Little v. Texas Department of Criminal Justice, 42 GERR 1057 (2004), both the trial court and the appeals court ruled she was not covered by the ADA because she could walk. The Texas Supreme Court, thankfully, said this was ridiculous and that she is significantly restricted as to the manner in which she walks compared to the general population. The Texas Supreme Court sent the case back to the lower court for a trial.

Fifth Amendment Right

In Franklin v. Evanston, 42 GERR 951 (7th Cir. 2004), the court discussed the Constitutional rights of public employees. The employee had been arrested for possession of marijuana and refused to answer questions about the case from his employer. The employer then fired him. The court ruled that the employer acted improperly by firing the employee for refusing to answer questions about his arrest. The employee had the right under the Fifth Amendment, said the court, to remain silent about these questions, because his answers could incriminate him. The court emphasized that it might be acceptable for the employer to fire the employee for marijuana possession but it was not acceptable to fire him for exercising his Fifth Amendment right to remain silent.