Legal Briefs: Union vs. union

Every Friday on GovExec.com, Legal Briefs reviews cases that involve, or provide valuable lessons to, federal managers. We report on the decisions of a wide range of review panels, including the Merit Systems Protection Board, the Federal Labor Relations Authority and federal courts.

In the ongoing turf war between the National Federation of Federal Employees and the American Federation of Government Employees for the hearts and union dues of civil servants, AFGE recently won a battle by being the biggest kid on the block.

When the Army combined two units-one with 1,384 employees from St. Louis and one with 4,711 employees from Redstone Arsenal, Ala.-into the U.S. Army Aviation and Missile Command at Redstone, the regional director decided the employees could vote on which union, if any, they wanted to represent them. NFFE had represented the St. Louis employees. AFGE had represented the Redstone employees.

The case went to the Federal Labor Relations Authority, which looked at the question of whether a vote was necessary, given that more than 77 percent of the new organization's employees had previously been represented by AFGE. The authority's answer:

"A union that represents more than 70 percent of the employees in a newly combined unit formerly represented by two or more unions is sufficiently predominant to render an election unnecessary because such an election would be a useless exercise."

Lesson: In the union world, big majorities rule.

U.S. Army Aviation and Missile Command and AFGE and NFFE (56 FLRA No. 14), Federal Labor Relations Authority, February 29, 2000.

No John Hancock

Cedric Gill was fired from his position as a GS-11 social worker for the Veterans Affairs Department. Gill appealed the decision and eventually worked out a general agreement for a settlement.

A Merit Systems Protection Board administrative judge held a teleconference with Gill's attorney and representatives of VA, who informed the judge that a settlement agreement had been reached. The judge marked the case as settled.

But Gill had not actually signed the settlement, nor was there any proof that Gill verbally approved the specifics of the deal. Gill appealed the judge's closing of the case, saying he wanted to make some changes to the specific language in the settlement. The agency said the settlement was final once the judge closed the case.

Not so fast, the board ruled on appeal. The settlement is not final until there is proof that both parties are in full agreement on the details.

Lesson: You can't have the sealed and delivered without the signed.

Cedric Gill v. Veterans Affairs Department (AT-0752-99-0437-I-1), Merit Systems Protection Board, March 27, 2000.

Where's the Dope?

Senior Customs Inspector Croley Forester was already a highly decorated inspector when his team found serious security problems at the Miami airport in 1995. Forester reported the problems to management and to the airport director, but no action was taken. So in September 1996, Forester reported the security problems in letters to Sen. Diane Feinstein, D-Calif.

The letters led to several critical newspaper articles and congressional hearings.

A few years later, Forester was issued a 14-day suspension for dereliction of duty, for failing to find six pounds of cocaine in a box that came in on a flight to Miami. Top Customs officials had originally sought his removal because they said Forester had not even opened the box to look for cocaine. Once they learned that he had opened the box, they changed the allegation to failure to find the cocaine.

Forester is a local chapter president for the National Treasury Employees Union. NTEU smelled whistleblower retaliation and asked for a reversal of the suspension. An arbitrator heard the case and ruled last week.

The arbitrator found that Customs doesn't always discipline inspectors who miss drugs during cargo examinations-in fact, no inspector in Miami or Los Angeles has ever been disciplined for missing drugs, the arbitrator found. The arbitrator said the only apparent reason for management's discipline of Forester was that he was "a credible, vocal, publicized whistleblower whose activities had significant, widespread ramifications for the agency."

"What is regrettable is that when he blew the whistle (only after having been rebuffed by management) to make the agency better and a better representative of the federal government, the agency's response was retaliation," the arbitrator wrote. The arbitrator ordered Forester's suspension rescinded.

Lesson: Sometimes, the only reward for doing the right thing is punishment.

In the Matter of Arbitration between Customs Service and NTEU, Arbitrator Mollie H. Bowers, April 12, 2000.