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


February 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. Check out our website at http://minahan.wld.com.

Employee Reinstatement

Barrie obtained a favorable ruling from the MSPB on behalf of a client at the Federal Correctional Institution in Englewood, Colorado, who was fired for allegedly making false statements on his employment application. The MSPB sustained only part of one charge concerning the existence of a particular debt. The MSPB ordered the client reinstated with a 10-day suspension.

Our Turn

These are troubled times. For well over 100 years, the rights and duties of federal employees have been created and amended in laws passed by the peoples' representatives in Congress. In the Fall of 2003, Congress decided to permit one federal employer, the Department of Defense, to make all the rules for DOD employees, without regard for the rules enacted by Congress on such topics as veterans preference, pay, leave, advancement and discipline. DOD is about to publish its proposed regulations for the DOD personnel system. It will be everything you'd expect for personnel policies designed by and for a single employer. Collective bargaining will become collective begging. Access to independent, third party dispute resolution will be replaced by DOD's in-house kangaroo court. Some Union representatives tell us it's all over and this is the end of the Unions in the federal sector. Remember, the Unions have been here before. True, it was a century ago but your forebears in the Union movement had it even worse, enduring beatings by company goons and terminations by public employers because Union membership was a sign of "disloyalty." Their courage in refusing to turn their backs on what they knew was right ultimately led to justice for all working people, including the 40 hour work week, the minimum wage, safety and health laws and civil rights laws. Now it's our turn. If collective begging is all we have, we will beg collectively until we are blue in the face. If kangaroo courts are all we have, we will play with the kangaroos, and maybe even beat them sometimes. And throughout this ordeal, we will never stop working for a new and better civil service system which promotes collective bargaining and protects employee rights better than the system that is now being swept away. Even now, the light shines in the darkness and the darkness has not overcome it.

DHS Personnel System

The Department of Homeland Security (DHS) has issued final regulations for its new personnel system. The complete document can be accessed at www.afge.org/documents/DHS-OPMRegulations.pdf. It will be interesting to see whether the Department of Defense adopts any of DHS's ideas. The DHS regulations are not as bad as we expected on employee appeals and access to arbitration; they are awful on collective bargaining. The regulations immediately render unenforceable any part of a labor contract that is inconsistent with the regulations. A Homeland Security Labor Relations Board (HSLRB) and a Mandatory Review Panel (MRP) are established to deal with certain issues. The Secretary can appoint anyone to these Boards. There is no requirement for Senate confirmation; there is not even a requirement that all the Board members cannot be affiliated with the same political party. The HSLRB will resolve all disputes concerning the duty to bargain in good faith, including negotiation impasses. The FLRA will retain the power to hold elections and resolve ULP issues that do not involve the duty to bargain. The "management rights" section of the regulations is a jaw-dropper. It eliminates impact and implementation bargaining over management rights. When management exercises those rights, it requires notice to the Union at the same time the change is made, not advance notice. The regulations preserve the right of Unions to attend formal discussions but put so many restrictions on that right that it virtually disappears. Unions do not have to be invited to formal discussions if the discussion constitutes a reiteration of existing policies or does not result in the announcement of a change. The right to make data requests still exists, but management is not obligated to disclose information "if adequate alternative means exist for obtaining the requested information." The regulations include all the unfair labor practices from the law but, as noted earlier, bargaining violations will not be processed by FLRA. The regulations provide that if the parties bargain to an impasse over any matter, the impasse may be resolved by an independent mediator/arbitrator only if both sides agree. Otherwise, the impasse will be resolved by the HSLRB. The regulations do guarantee a negotiated grievance procedure and guarantee the right to take grievances to binding arbitration. The regulations allow DHS employees to appeal adverse actions to MSPB, except for "mandatory removal offenses." The regulations don't identify these offenses but say they will be published later in the Federal Register. For a mandatory removal offense, the employee will be required to appeal to the Mandatory Removal Panel (MRP), which will be staffed by members chosen by the Secretary. The MRP sustains or overturns a penalty and has no authority to mitigate the penalty. In a provision bound to draw a Constitutional challenge, the regulations say that if the MRP rules in favor of an employee, management is allowed to propose another adverse action "based on the same record evidence." All in all, these regulations are what you would expect when a federal agency rather than Congress establishes a personnel system.

"It's Not Our Department"

Federal agencies often argue that they can't make commitments to employees about pay or benefits because those matters are handled by other agencies. The same argument was made in Overseas Education Association, 22 FLRA No. 34(1986), when the Union proposed that Union dues shall be withheld and forwarded to the Union within 14 days of each pay period. The Authority rejected the agency's argument that it could not be held to a provision like this because its payroll function was administered by another agency.

Discrimination in Promotion

The Fifth Circuit issued a helpful decision in Patrick v. Ridge, 43 GERR 34 (5th Cir. 2004). The plaintiff was rejected for a promotion in the Department of Homeland Security. The agency said she was not promoted because she was not sufficiently suited for the job and because another applicant, who was not in the original candidate pool, was more qualified. The Court ruled these explanations legally insufficient. It said that calling a candidate "not sufficiently suited for the job" is completely unspecific and does not allow the plaintiff the opportunity to understand the reasons for this conclusion. The Court also ruled that an employer may not rely on the qualifications of a candidate who was not under consideration at the time the plaintiff was rejected. The Court explained that the agency could not have known at the time it rejected the plaintiff that the other candidate was going to be more qualified.

Limit on Backpay: Temporary Promotions

The FLRA overruled many years of case precedent on temporary promotions in VA Medical Center, Charleston, South Carolina, 60 FLRA No. 13 (2004). An arbitrator granted a grievance seeking a retroactive temporary promotion and ordered the agency to pay backpay to the employee for the entire time she performed duties at the higher-grade level. The Authority, disagreeing with its own earlier decisions, decided that a retroactive temporary promotion of more than 120 days is contrary to OPM regulations.

Access to Investigation Manual

In Federal Detention Center, Houston, Texas, 60 FLRA No. 22 (2004), the Union was representing 2 employees in connection with disciplinary actions. The Union made a data request for the investagatory files on the employee, and for the entire SIS Manual. The Authority found that it was an unfair labor practice for the agency to refuse to provide these items to the Union.