Minahan and Shapiro, P.C.

Attorneys at Law Daniel Minahan Barrie M. Shapiro

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


October 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. We also provide representation to Union members in MSPB appeals, EEO complaints and labor arbitration for reduced or flat fees if there is a chance we can obtain attorneys fees from the agency if we win. Check out our website at http://minahan.wld.com.

Real Civil Service Reform

We’ve received lots of feedback on our very own legislative proposal for a completely new civil service law covering all federal employees. Keep those comments coming! We appreciate all the comments we’ve received, both positive and negative, since they help us to fine-tune our proposal. We call our idea for new legislation The Modern System, MS.1. If you like it, tell your congressional representative to check it out. We’ve posted it on the home page of our law firm website – http://minahan.wld.com.

EEO Cases

Weingarten Violation

Here’s an interesting example of an employer shooting its own case in the foot. In Chicago Transit Authority, 121 LA 478 (Wolff, 2005), a bus driver found a wallet on her bus, took the money from the wallet and then gave the wallet to "lost and found." The owner complained there was $340.00 in the wallet, the employer reviewed a videotape from a security camera which showed the bus driver picking up the wallet and taking out the money. The employer called the bus driver in for a meeting and asked whether she knew what happened to the money. When she said she had no idea, she was fired. Arbitrator Wolff ordered her to be reinstated (though without backpay), saying that she had no idea the interview would be disciplinary in nature and that she certainly would have requested a Union representative if she did. The Arbitrator stressed that the employer itself said it was not just the theft but also the employee lying about it which got her fired. The lesson for employers is not to play these kinds of games with employees. If the employee is guilty and you’ve got the evidence, just go ahead and take the appropriate disciplinary action!

MSPB’s Boston Tea Party

For an agency that thinks video conference hearings are as good as real hearings, this next case probably should not come as a surprise. On September 27, 2005, the MSPB reached a new low in Johnston v. Dept. of Treasury. Ms. Johnston is one of the select group of employees who actually won her appeal to MSPB, with the MSPB reversing her removal from employment. More than three years later, the MSPB finally ruled on whether her employer fully complied with the MSPB’s decision. She said her employer deducted too much from her backpay award for federal and state taxes. The MSPB said, "the Board does not get involved with tax disputes regarding backpay." What?! The decision references one of its earlier decisions, the Cuevas case, to support this remarkable statement. But the Cuevas case involved a completely different point, which was whether the MSPB will adjust an award of backpay upward to compensate for an employee’s additional tax liability from receiving backpay for multiple years in a single tax year. (Few agencies or courts are willing to grant that type of remedy). To tell a reinstated employee "that’s not our department, go complain to the IRS," when the employee says that the tax withholdings from his backpay are the wrong amounts is ridiculous. There is a solution, and we urge all our Union clients and friends to give it a try the next time you represent someone who is entitled to backpay. Even though the OPM regulations on backpay allow for withholding taxes from backpay, the Backpay Act itself, 5 USC 5596, says nothing about taxes. A very interesting decision of a federal judge in Pennsylvania some years ago ruled that an employer cannot withhold taxes from backpay, on the basis that the Internal Revenue Code authorizes tax withholdings only from pay for services actually performed by the employee. Churchill v. Star Enterprises, 3 F. Supp. 2d 622 (E.D. Pa. 1998). Try this on your next backpay case and watch the fur fly.

FLRA Cases