MINAHAN AND SHAPIRO, P.C. Attorneys at Law

Phone: 303.986.0054

FAX: 303.986.1137

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


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's Proposed NSPS Regulations 

On February 14, 2005, DOD published their proposed regulations for the their new National Security Personnel System (NSPS). This, despite clear language in the law that required consultations with the unions before DOD decides whether to propose such a system. Comments on the proposal can be submitted by any member of the public and are due by March 16, 2005. We have been sending e-mails to our union clients with each new draft of our comments, and with a suggested letter to Congress. For those of you who are not in DOD, don't believe this isn't your fight. Union representatives from all agencies should submit comments on these proposed regulations. You can download the whole proposal at www.cpms.mil/nsps.

A thorough summary of what's wrong with these regulations would fill a book. Here's a short version. They would abolish the GS and WG pay systems, along with step increases and cost of living increases. Instead, each employee in your shop will be paid a different salary, depending on his "pay band," local market supplement, performance payout and other performance payments (such as an "extraordinary pay increase").

Veterans and disabled veterans would no longer be protected in RIF's.

The regulations don't say how premium pay, including overtime, will be earned. They would allow DOD to set probationary periods of any length for any job, and even "in-service" probationary periods for employees who are promoted or reassigned.

They would continue to allow DOD employees to appeal adverse actions to MSPB but they would subject MSPB to a whole series of restrictions on how it could review the evidence and the penalty imposed on the employee. To add insult to injury, they would narrow the grounds for awarding attorney's fees so much that even the rare employee who wins a case would not qualify for attorney's fees. If DOD does not like the MSPB judge's decision, it gets the right to appeal it to the Secretary (itself), then to the full MSPB, and then to the court of appeals. To no one's surprise, the proposals on labor relations are the most outrageous part of the regulations.

Bargaining and filing a grievance over any aspect of pay or over a performance rating would be prohibited.

Bargaining over any aspect of management's rights, including impact and implementation bargaining, would be prohibited. Management could simply implement a change without notice. The FLRA is reduced to running representation elections.

Most of FLRA's former tasks would be given to the National Security Labor Relations Board (NSLRB), headed by individuals hand-picked by the Secretary of Defense (without even a requirement that one member be from the minority party or from a labor union). The NSLRB would handle ULP's, negotiability disputes, impasses and appeals from arbitration awards. The proposal gives no clue was to whether NSLRB will investigate ULP charges or whether unions will simply have to prove their own charges with paperwork or with some sort of hearing. Grievances and arbitration are still allowed but another basis would be added for granting an exception to an arbitration award: "the arbitrator's failure to properly consider the Department's national security mission."

Unions will still be able to negotiate for official time.

One of the most threatening aspects of the proposal is DOD's repudiation of the "robust debate" standard for union representatives. According to the proposed regulations, DOD will hold all union representatives to the same standards of behavior as other employees. Well that's enough of the "lowlights." Get your copy today and start working on your comments!

Compensatory Time for Travel

We've gotten a lot of questions from clients on the new law that allows employees to earn compensatory time for time spent traveling (instead of earning nothing as was the case before). The new law is section 203 of Public Law 108-411. (You can get public laws and federal regulations at www.gpo.gov). It adds a new section 5550b to title 5 of the U.S. Code (and this can be ignored by DOD in their NSPS, but that's another story). It states that each hour spent by an employee in a travel status that is not otherwise compensible shall be treated as an hour of work for purposes of calculating compensatory time off. Remember, this is compensatory time not overtime. Also keep in mind that this law applies only to GS employees, not WG employees. OPM published regulations on this new law on January 27, 2005, in the Federal Register. The regulations provide that compensatory time is not earned during normal meal periods or for periods of extensive or unusual delays while en route. They say that employees must use accrued compensatory time within 26 pay periods after it is earned, that it cannot transfer with an employee to another agency and that there is no payment for it when an employee leaves federal service.

Disability Discrimination: Truck Driver

The EEOC in Boots v. U.S. Postal Service, No. 03A40060 (December 13, 2004), considered the appeal of an employee who had been removed from his position as a tractor-trailer operator with the Postal Service because he was taking anti-seizure medication. The MSPB had upheld his removal, but EEOC disagreed. The Postal Service said that new Department of Transportation rules disqualified persons taking anti-seizure medication form holding commercial driver's licenses (CDL). EEOC stressed that the Postal Service was not covered by those regulations and had only adopted them voluntarily. Since the Postal Service automatically applied those regulations to the employee without considering whether he posed an actual danger, the EEOC had to perform this evaluation. It noted that the employee had a problem-free history with the medication and that his doctor certified that he was qualified to operate a commercial truck. The Postal Service argued that he was not a person with a disability because he simply had to take medication, which wasn't any kind of impairment. The EEOC said that by disqualifying the employee from a whole "class of jobs" because of his physical condition, the employee was a person with a disability for purposes of ADA.

Disability Harassment

You've heard of sexual harassment. Now the Tenth Circuit has joined a number of other federal courts in ruling that harassment because of one's disability is a violation of the law. Lanman v. Johnson County, Kansas (10th Cir., December 30, 2004). As with any other hostile work environment claim, the employee must show that the harassment was severe or pervasive enough to alter her conditions of employment. Compensatory damages for emotional distress are available, as with all other EEO violations.

Temporary Promotion or Classification?

This is always the tricky question when employees want to file grievances for performing higher graded work without getting paid at the higher rate. Grievances over classification are not permitted by law. Grievances over denials of temporary promotions are. In Social Security Administration, 60 FLRA No. 16 (2004), an arbitrator awarded a retroactive temporary promotion with back pay. So far so good. However, the arbitrator also ordered the agency to pay the employee "front pay" at the higher rate until her job is reclassified. To FLRA, this demonstrated that the case was not about a temporary promotion but was about the performance by the employee of higher graded duties on an on-going, permanent basis. The FLRA set aside the award on the basis that the grievance was a classification appeal in disguise.

Official Time

In Federal Aviation Administration, 60 FLRA No. 7 (2004), an arbitrator awarded back pay and premium pay to a union representative who performed representational duties on a Sunday and on a holiday. The Authority set aside the award on the basis of the long-standing rule that a union representative is not entitled to official time for periods when he would not otherwise by in a duty status. Thus, if the employee's regular tour of duty included the Sunday and the holiday, he could have been paid while doing his union work, but not if it was on his own time.

Duty to Provide Safe Workplace: Stolen Car

We wonder if a decision involving a state employee would work in the federal sector. The employee in State v. Rhode Island Alliance of Social Service Employees, 42 GERR 1230 (R.I. 2004), had her car stolen from the employee parking lot. She filed a grievance under a provision of the labor contract in which the state promised to make every reasonable effort to provide and maintain safe working conditions. Her insurance company paid for most of the loss, but an arbitrator ordered the state to reimburse her for her deductible and towing expenses. The state supreme court upheld the award. Many labor contracts (and OSHA's regulations) require employers to maintain safe working conditions. In addition 31 USC 3721 permits federal employees to file claims for loss or damage to personal property which occurs at work. These legal authorities may be sufficient to support a grievance if claims of this nature are denied. Any grievance like this would have to anticipate the objection that it did not concern "conditions of employment" and explain how the loss or damage suffered by the employee does affect his or her "conditions of employment."