© Copyright 2001 by the Fire and Police Personnel Reporter
Fire and Police Personnel Reporter
An Employment Law Publication
for Law Enforcement, Corrections
and the Fire/EMT services

August, 2001 web edition

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Arbitration Procedures
Collective Bargaining/In General
Disciplinary Interviews/Reports
Disciplinary Punishment
Domestic Partner Rights
Employee Harassment - Nonsexual
Hairstyle/Appearance Regulations
Health Insurance
National Origin Discrimination
Race and Sex Discrimination
Sex Discrimination
Sexual Harassment
Telephone & Pager Monitoring
Union Activities
Publications Noted
Cross References
Cases Cited

Arbitration Procedures

Arbitrator places the burden of proof on the employer in reimbursement claims for lost or stolen property issued to an employee.

     Two county workers had their pagers stolen, and management assessed the replacement cost.  They grieved; the arbitrator denied one claim, and approved the other.  Although the contract was silent as to burden of proof, the arbitrator noted that it is well established that in discipline cases the employer has the burden of proof.

     He ruled that in nondisciplinary cases, the burden of proof ordinarily falls on the charging party -- which is usually the grievant or union. However, in this instance, it was the employer that sought collect money from two employees.

     Because management initiated the reimbursement claim, the situation was more like a disciplinary action than a non-disciplinary action.  Cook County (Adult Probation Dept.) and AFSCME L-3486, 115 LA (BNA) 1025 (Wolff, 2001).

Collective Bargaining - In General

Federal legislation is reintroduced to mandate bargaining in state and local public safety employment.

     Four influential Senators have reintroduced the “Public Safety Employer-Employee Cooperation Act (of 2001)," which would require the Federal Labor Relations Authority to issue regulations establishing collective bargaining procedures for police officers and firefighters in states which the FLRA has determined that state laws "do not substantially provide for such rights and responsibilities.”

     For those states that do not meet the standards, the FLRA would be required to:

      * determine bargaining units;

      * supervise or conduct elections;

      * resolve refusal to bargain complaints;

      * resolve unfair labor practices charges; and

      * resolve exceptions to arbitrator's awards.

     S. 952 was introduced by Senators Judd Gregg (R-NH), Mike DeWine (R-OH),  Edward Kennedy (D-MA) and Evan Bayh (D-IN); it was referred to the Committee on Health, Education, Labor, and Pensions.  Sen. Kennedy is Committee Chairman; Senators Gregg and DeWine were minority members of the committee at the time the Bill was introduced.

Text: thomas.loc.gov/

Disciplinary Interviews

Appellate court overturns an arbitration award that gave state troopers the same procedural rights when they are interviewed as a criminal suspects that they have when they are interviewed for disciplinary purposes.  Even if the arbitrator's interpretation of the contract was correct, “an employer cannot by contract give its employees procedural rights and benefits regarding criminal investigations.”

     Illinois State Police management twice interviewed a trooper about sexual misconduct with a child.  The first interview focused on possible criminal charges and the trooper was advised of his Miranda rights.  He made certain admissions regarding his sexual conduct with the minor.

     The second interview was administrative, and he was given the rights applicable under the state's “Uniform Peace Officers’ Disciplinary Act” (50 ILCS 725/3.2) and the “Officer's Bill of Rights” clause in the bargaining agreement.  At that time he denied many of the allegations that he had admitted in the earlier interrogation.

     At a hearing before the State Police Merit Board, the trooper unsuccessfully sought to exclude the entire first interview, because it did not comply with the Disciplinary Act or the bargaining agreement. He then grieved his termination.

     A neutral arbitrator ordered his reinstatement, holding that he should have been given his administrative interview rights at that time.  Management filed suit to overturn the arbitration award on the grounds that the arbitrator exceeded his powers and the award violates public policy.

     The trial court sided with the trooper, and management appealed that holding.  A three-judge appellate panel said that courts must not overrule an award simply because the judges differ in the interpretation of contract rights from that of the arbitrator.

     However, the panel said that the State Police has a statutory duty to investigate crime and to enforce the criminal laws.  Moreover, “an employer cannot by contract give its employees procedural rights and benefits regarding criminal investigations. The fact that the employer in this case is the Illinois State Police is immaterial”

     The language of the Bill of Rights clause in the bargaining agreement suggests it applies to disciplinary proceedings, not criminal investigations. The Uniform Peace Officers' Disciplinary Act also does not apply to criminal acts.

     Finally, courts must vacate an award if it is “repugnant to the established norms of public policy.”  There is a “clear public policy favoring the investigation and prosecution of criminal offenses.”  Illinois State Police v. FOP L-41, #4-00-0774, 2001 Ill.App. Lexis 505.

Opinion text: www.state.il.us/court/Opinions/AppellateCourt/2001/4thDistrict/June/Html/4000774.htm

IL P/O Disciplinary Act: www.legis.state.il.us/ilcs/ch50/ch50act725.htm

Disciplinary Punishment

Arbitrator sustains the dismissal of a public employee who, while on temporary total disability benefits, was secretly videotaped operating a lawn care business.

     A transit worker was in an on-the-job collision, and sought temporary total disability benefits.  She was informed, that because of the nature of her claim, she could not work elsewhere while receiving benefits.

     Management hired investigators, who videotaped the “disabled” employee performing manual labor; she was operating a lawn care business. She was fired, and the union grieved.

     In her defense, she said she was under “considerable” stress. Her grandfather had died, and she learned that her aunt and stepfather had been diagnosed with terminal illnesses.  She testified that she had no interest in the lawn care business, but did want to “help members of her family who were involved in the business.”

     An arbitrator denied the appeal.  The grievant had signed benefit claims forms which stated, “I understand that I am not permitted to work while receiving temporary total compensation.”

     The grievant “was not terminated because she owned a lawn care business. Rather, she was terminated because she wrongfully collected .... disability benefits while she was self employed performing lawn care services.”  She was videotaped performing lawn care services at four different locations.

     The arbitrator said that her “explanation that she was under stress and suffering from the adverse affects of various medications was preposterous and incredible.” He found that she “knowingly and intentionally lied” to obtain benefits she was not eligible for.

     He refused to mitigate the punishment. “The work she performed could hardly be considered therapeutic” and "likely aggravated her injuries and delayed the healing process."  He wrote that her termination was warranted.  Southwest Ohio RTA and ATU L-627, AAA #52-300-00520-00, 115 LA (BNA) 1141 (Imundo 2001).

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»  Editor's Comment: Although disability claims fraud is rightly punishable by termination (and even criminal sanctions), strict prohibitions against “other employment” unfairly punish a worker who is temporarily unable to perform manual labor, but is able to continue working at a nonstrenuous secondary job, involving only administrative tasks.

     To qualify for disability benefits, a disabled employee would have to relinquish his or her secondary occupation.  If the disabling incident is job-related, the prohibition is even more unfair.  A fair system would allow claimants to continue working in preexisting secondary employment positions, provided that the work (a) is not incompatible with the disability claim, and (b) the secondary work does not delay the recovery process.

     During the recovery period, governmental entities would be able to collect personal income taxes and in some cases, payroll and sales taxes.

Domestic Partner Rights

Ninth Circuit upholds a city ordinance requiring firms doing business with the city to offer benefits to registered domestic partners on a nondiscriminatory basis.

     A corporation unsuccessfully sued San Francisco, attacking an ordinance requiring firms that do business with the city to provide employee benefits on a nondiscriminatory basis for workers who are married and those with registered domestic partners under state law.  San Francisco Admin. Code Ch. 12B and Calif. Family Code §297 (1999).

     On appeal, the corporation argued that the law was invalid under the Commerce and Due Process clauses of the U.S. Constitution, the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S. Code §1001) and under California law.

     A three-judge panel affirmed.  “The ... ordinance contains no language explicitly or implicitly targeting either out-of-state entities or entities engaged in interstate commerce.”  S.D. Myers v. C&C of San Francisco, #99-16397, 01 C.D.O.S. 4894, 2001 U.S. App. Lexis 13132 (9th Cir.).

Text: www.ce9.uscourts.gov/opinions

Employee Harassment - Nonsexual

Canada upgrades its federal employment sexual harassment policy to include rudeness, humiliation, degrading work assignments and other abuses. Policy also applies to non-employee contractual workers.

     The revised Policy defines harassment as any improper conduct by an individual that is directed at and offensive to another person or persons in the workplace, that the individual knew, or reasonably should have known, would cause offense or harm.

     Canadian federal employees “are expected to act towards other individuals professionally and respectfully.”  The Policy covers any objectionable act, comment, or display that demeans, belittles, or causes personal humiliation or embarrassment, as well as any act of intimidation or threat.

     Harassment includes rudeness, offensive teasing about a person's physical appearance, insults, and criticizing a worker in public.  Supervisors may not repeatedly single out an employee for meaningless or dirty jobs that are not part of their normal duties, or exclude them from group activities or assignments.

     It applies to full, part-time and casual federal employees, volunteers, temporary agency workers, and contractors who work in federal facilities and worksites.  “Policy on the Prevention and Resolution of Harassment in the Workplace,” Secretariat, Treas. Bd. of Canada (Eff. 6/1/2001), 39 (1915) G.E.R.R. (BNA) 671.

Text: www.tbs-sct.gc.ca/pubspol/hrpubs/TB851/harae.html

Hairstyle and Appearance Regulations

EEOC negotiates a $70,000 settlement for a Muslim who was fired for violating an employer's “no-beard” policy.

     EEOC sued in behalf of a Muslim who was fired by a major corporation.  Management agreed to provide him $14,000 in back pay and $56,000 in compensatory damages.

     Under a consent decree the employer has agreed to allow employees “with a sincerely held religious belief” that requires a particular hairstyle to seek an exception to the firm's appearance policy.  Abdul-Azeez v. Federal Express Corp., #CV100-50, 69 L.W. 2793 (S.D. Ga., 2001).  [Not on Internet]

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»  Research Note: Last year, we reported that the Justice Dept. sued Newark over its grooming policy, which impacted Islamic police officers. U.S. v. Newark, #00-2368, 38 (1864) G.E.R.R. (BNA) 666 (D.N.J.). Courts have upheld religious claims brought by Muslim, Rastafarian and Native American police and corrections officers, as well as for medical reasons (pseudofolliculitis barbae).

*    *    *    *    *    *

Federal court rejects a sex discrimination challenge to “no beards” policy for paramedics; plaintiff did not claim an exemption for medical, religious or ethnic reasons.

     An Oregon ambulance service required paramedics to use a respirator for protection against tuberculosis and other airborne pathogens.  Management switched to the N-95 respirator, which cannot be used by men with beards. A bearded employee shaved and sued for sex discrimination.  He argued that because only men grow beards, the no beard policy adversely impacts only on male paramedics. Management claimed the policy was a neutral grooming standard.

     The judge noted that “the great weight of authority in federal courts holds that grooming and dress codes that distinguish between men and women are permissible and do not violate Title VII ... While it is true that only men can grow beards, it does not follow that a rule prohibiting beards amounts to sex discrimination.”

     The important fact of this case, is that the plaintiff did not adopt a hairstyle for medical, religious or ethnic reasons.  Barrett v. Amer. Medical Response, #CV-00-1539-ST, 2001 U.S. Dist. Lexis 7834, 85 FEP Cases (BNA) 1245 (D. Ore. 2001).

*    *    *    *    *    *

»  Editor's Caution: Some breathing devices will function with bearded users, and if religious or medical reasons are involved, management would have to accommodate a request to use an alternative breathing device that tolerated facial hair.

Health Insurance

Federal court in Seattle orders an employer to cover the cost of prescription contraceptives in its insurance plan.

     A woman sued her employer for violation of Title VII and the Pregnancy Discrimination Act, claiming that the decision not to cover prescription contraceptives was sex discrimination.

     The employer defended saying that contraceptives were voluntary, preventative, they do not treat or prevent an illness or disease, and the control of one's fertility is not a pregnancy, childbirth, or a related medical condition.

     The court noted that prescription contraceptives are used only by women, and that the employer's drug plan provided less coverage for women than men.  The court said:

Male and female employees have different, sex-based disability and healthcare needs, and the law is no longer blind to the fact that only women can get pregnant, bear children, or use prescription contraception. The special or increased healthcare needs associated with a woman's unique sex-based characteristics must be met to the same extent, and on the same terms, as other healthcare needs.

     The judge said that unintended pregnancies are over half of all pregnancies in the country.  They “carry enormous costs and health consequences for the mother, the child, and society as a whole.”  Erickson v. The Bartell Drug Co., #C00-1213L, 2001 U.S. Dist. Lexis 7550 (W.D. Wash. 2001).  [Not on Internet]

»  Law Note: For further study, see “Sex Discrimination and Insurance for Contraception,” by Sylvia A. Law, 73 Wash. L. Rev. 363 (1998).

National Origin Discrimination

Seventh Circuit upholds the promotion of an Asian agent which was challenged by an Hispanic agent.  The selected agent had more field experience.

     An Hispanic FBI agent sued for national origin discrimination when he was not promoted to an organized crime position.  The Bureau chose an Asian agent instead.

     Although six reasons were listed for his nonacceptance, the issue came down to whether the position sought was primarily administrative or operational.  The plaintiff's strength's were in the first category, and the agent selected in the latter.

     The District Court rejected his claims, and an appeals court has affirmed. The Bureau's reasons for declining to promote him were legitimate and there was no proof of pretext.  Guerrero v. Ashcroft, #00-3306, 2001 U.S. App. Lexis 12871 (7th Cir.).

Text: laws.findlaw.com/7th/003306.html

Race and Sex Discrimination - Disparate Discipline

Fifth Circuit reverses a jury verdict for a white ex-deputy who hit a wounded black suspect with a flashlight. The fact other officers were not fired for similar use of force incidents is irrelevant unless they were not white.

     The sheriff of a suburban New Orleans Parish fired a Caucasian deputy for allegedly using excessive force during the arrest of a young African-American male.  The deputy had confronted two car-jacking suspects.  One suspect was then shot in the leg; as he lay on the ground, the deputy struck him with a flashlight and handcuffed him.

     In terminating the deputy, the sheriff (an Asian-American) ignored a supervisor's recommendation for a two-day suspension.  The deputy filed suit, claiming that he was fired because of his race and to gain favor with minority voters.  The case was tried three times; the third trial resulted in a verdict of $64,000 in damages.

     On appeal, the panel noted that the ex-deputy “clearly established that he was ... punished more harshly than other officers who had used force at least as excessive ...”   However, he failed to produce evidence that he was punished more harshly because of his race.

     There was no proof that the other officers, who were disciplined less severely were not white.  To show disparate treatment because of race, a plaintiff must show different treatment of coworkers who are of a different race (or other status).

     The sheriff provided unrebutted testimony that he fired numerous black and white officers for disciplinary violations, including the use of excessive force.

     The panel said a party cannot prevail by merely showing that he was punished severely, or that he was punished more severely than others, or that he was punished because of the employer's desire to gain favor in the minority community.

     Even if a termination is harsh and unwarranted, that fact, standing alone, does not support a claim of racial discrimination.  Even if the race of the brutality victim may have factored into the sheriff's decision, the critical issue was whether the deputy's race was a motivating factor.

     The panel held that the trial court erred in finding sufficient evidence of racial discrimination and the jury verdict was reversed.   McKenzie v. Lee, 00-30179, 246 F.3d 494, 2001 U.S. App. Lexis 5630, 85 FEP Cases (BNA) 1184 (5th Cir.).

Text: laws.findlaw.com/5th/0030179cv0.html

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»  Research Note: Last year, a black prison hearings officer presented sufficient evidence of differential treatment to send his disparate discipline claim to a jury.

     The 6th Circuit overturned a lower court ruling that dismissed a former Administrative Law Examiner's (hearing officer) discrimination claim.  The three-judge panel said there was “abundant evidence” in the record which demonstrated that the management treated the plaintiff differently than similarly situated non-minority employees.

1. Management disciplined him on several occasions for typographical errors but have never disciplined two white hearing officers for similar errors.

2. He was disciplined for failing to correct an incorrect inmate number on a disciplinary ticket, but a white hearing officer was not disciplined for the same error.

3. He was disciplined for misstating an inmate's disciplinary charge, but a white hearing officer was not disciplined.

The panel said that his “infractions and those of his colleagues were obviously of comparable seriousness,” and supported his claim of differential treatment.

     The panel added that the termination of the plaintiff MAY have been unrelated to his race, e.g., management claimed that he was not carrying his weight as a hearing officer.  However, “it is possible that the prison officials disciplined and ultimately terminated him because of the color of his skin.”

     The panel remanded those determinations for a trial.  Perry v. McGinnis, #98-1607, 2000 U.S. App. Lexis 6684, 209 F.3d 597, 2000 FED App. 0133P, 52 FEP Cases (BNA) 1009, 17 IER Cases (BNA) 1003 (6th Cir.).

Text: laws.findlaw.com/6th/00a0133p.html

Sex Discrimination - Affirmative Action

Federal appeals court upholds an unsuccessful 17-year old plan to hire more women firefighters, but directs management to work to eliminate preferences in 3-4 years.

     Until the mid-1980s, the Miami-Dade County fire dept. excluded women from firefighting positions, i.e., they were 1% of the workforce vs. 52% resident population. An affirmative action plan was adopted setting a hiring goal of 36%.  As a result of intensified recruitment, the firefighter workforce was raised to 11.6% women.

     Rejected male applicants sued to have the plan modified or ended. They claimed that population statistics were irrelevant for the fire service, because women were less interested and less physically qualified than men.  The district court rejected the argument that the MDFD's goal of 36% was unobtainable.

     On appeal, a three-judge panel said that the “perpetual use of affirmative action may foster the misguided belief that women cannot compete on their own. That notion is just as pernicious and offensive as its converse, that women ought to be excluded because their place is in the home.” The MDFD hiring plan had been in effect for 17 years.

     However, although recent studies suggest that a 36% hiring goal may be too high, there was no evidence the plaintiffs would have been hired if the female set-aside had been in the 15.9% - 21.69% range suggested by their data.

     The panel was unable to find a constitutional violation on the evidence presented, but said the county should “evaluate closely its female hiring goals ... with a sense of urgency.”  If it properly can eliminate its plan entirely within three or four years, it must proceed to do so.  Danskine v. Miami Dade Fire Dept., #99-14493, 2001 U.S. App. Lexis 12152 (11th Cir.).

Text: laws.lp.findlaw.com/11th/9914493opn.html

Sexual Harassment - In General

Federal appeals court reinstates a $275,000 verdict for a woman firefighter and rejects the city's argument that firefighter behavior should be evaluated in the context of a blue-collar environment.

     Beginning with her training, she listened to comments about her breasts, sexual positions and oral sex.  She was asked by another firefighter if she took birth control pills because coworkers “could all bang her at a union party that night.”

     During the course of her career she was treated rudely, insulted, and excluded from daily meetings. Her locker was glued shut; a lieutenant and other firefighters frequently referred to her meals as lesbian food.

     When management failed to resolve her complaints, she took leave for more than two years for the stress she experienced.  She gained a lot of weight, and was afraid to leave her house.  Two different juries found the fire dept. liable for sexual harassment. The first verdict was for $275,000, and the second for $200,000.

     The appeals court concluded that there was a continuing violation and it was an error for the lower court set aside the first verdict.  The panel said “the accumulated effect of incidents of humiliating, offensive comments directed at women and work-sabotaging pranks, taken together, can constitute a hostile work environment” -- without touching or other direct behavior.

     As to the “blue collar environment” defense raised by the city, the panel said that it did not believe that a woman who chooses to work in a male-dominated occupation “relinquishes her right to be free from sexual harassment ...”  They said the more prevalent the sexism, the more difficult it would be for a woman to prove that sex-based conduct was sufficiently severe or pervasive to constitute a hostile work environment.

     “Surely women working in the [building] trades do not deserve less protection from the law than women working in a courthouse.”  O'Rourke v. City of Providence, #99-2346 & 00-1008, 2001 U.S. App. Lexis 165, 235 F.3d 71, 85 FEP Cases (BNA) 1135 (1st Cir.).

Text: laws.findlaw.com/1st/992346.html


Federal Tax Court rules that loans from a governmental retirement system are not a "return of contributions" to the plan.  Loans over $50,000 or those not repaid in 5 years are taxable distributions.

     A N.Y. City employee borrowed almost $9,000 in 32 separate transactions.  The IRS said the loans were taxable income. Under Revenue Code §72(p)(1), loans from a “qualified retirement plan” are taxable distributions if the aggregate balance is more than $50,000 or the loan repayment period is more than five years.

     In this case, repayment required 999 biweekly payments, more than 38 years.  The court found that the record did not reflect that the distributions were made from deductible employee contributions.  Campbell v. Cmsnr. Int. Rev., #3826-00, #3826-00, T.C. Memo 2001-118; 2001 Tax Ct. Memo Lexis 144, 81 T.C.M. (CCH) 1641, 39 (1914) G.E.R.R. (BNA) 655  (Tax Court, 2001).

Text: www.ustaxcourt.gov/Historic/InOpCampbell.opn.TCM.WPD.pdf

Telephone & Pager Monitoring / Audio & Video Taping

En banc federal appeals court holds that even if a bargaining agreement expressly authorizes surveillance which is illegal under state law, it would be void and unenforceable under federal labor law.  Federal bargaining laws cannot not permit employers and unions to agree to violate state criminal laws.

     We previously reported [2000 FP 92-3] that a divided Ninth Circuit panel had rejected a suit by employees who were videotaped in workplace restrooms.  The panel ruled, 2-to-1, that the right to sue was preempted by the bargaining agreement.  Cramer v. Consol. Frtwys., #98-56154, 209 F.3d 1122, 2000 U.S. App. Lexis 7759, 164 LRRM (BNA) 2129, 16 IER Cases (BNA) 321 (9th Cir. 2000). The employees obtained an en banc rehearing, which reversed the panel, 9-2.

     A private-sector employer engaged in secret videotaping of restrooms through two-way mirrors, an activity that is usually criminal in California. Employees sued for invasion of privacy, emotional distress, and retaliatory discharge. The state court action was removed to federal court.

     The federal trial court and a three-judge appellate panel had held their claims were preempted by the Labor Management Relations Act, 29 U.S. Code §185, §301, because they were members of a Teamster's Local and their bargaining agreement allowed workplace surveillance.

     The bargaining agreement provided for the use of videocamera evidence for discipline and discharge.  It did not explicitly permit the use of restroom surveillance techniques or two-way mirrors.  Calif. Penal Code §632, §635, §647(k) and §653n make it a crime to install a two-way mirror in a bathroom, to view the interior of a bathroom, to eavesdrop by electronic recording devices, or to possess such devices.

     The employees had argued that a union and management cannot negotiate for activities that violate criminal statutes.  As part of an effort to deter the use of drugs, the employer installed video cameras and audio listening devices behind two-way mirrors in the restrooms at its trucking terminal.

     Because state law bars restroom surveillance, employers and unions cannot bargain for or agree to illegal conduct. The en banc court reinstated damage claims for the intentional infliction of emotional distress brought by over 270 workers, and remanded the suit to the state's Superior Court.

     The part of the holding with national implications, is that even if a bargaining agreement expressly authorizes conduct which is illegal under state law, it would be void and unenforceable under federal labor law.  Federal bargaining laws cannot not permit employers and unions to agree to violate state criminal laws.  Cramer v. Consolidated Freightways, #98-55657, 2001 U.S. App. Lexis 13385, 255 F.3d 683, 167 LRRM (BNA) 2353 (9th Cir. en banc 6/15/01).

Text: caselaw.lp.findlaw.com/data2/circs/9th/9855657p.pdf

Union and Associational Activity

Federal appeals court overturns a recent national labor board ruling which had allowed the union to photograph an intimidating certification election.

     For many years the NLRB has held that, absent justification, the act of photographing employees while they engage in “protected activity,” such as picketing or voting, violates federal labor law.  Pepsi-Cola Bottling Co. of Los Angeles, 289 N.L.R.B. 736, 1988 NLRB Lexis 250, 128 LRRM (BNA) 1275, 289 NLRB No. 94 (1988).

     That ruling affected both private-sector employers and employees, and was adopted to prevent intimidation.  In a later case, a union rep. took photographs of pro-union and anti-union employees, and told an anti-union activist “We've got it on film,” and that “some of you may not be here.” Mike Yurosek & Son, #31-RC-6084, 292 N.L.R.B. 1074, 1989 NLRB Lexis 65, 130 LRRM (BNA) 1308, 292 NLRB No. 124 (1989).

     In a recent case, the Board did an about face, and determined that union photo-graphing of employees during an election does not interfere with employee free choice.  It overruled its precedent in Pepsi-Cola Bottling, but declined to overrule Mike Yurosek, reasoning that photographing when accompanied by coercive conduct is still unlawful.

     In the recent case, the Board found no objectionable conduct. The employer appealed to the U.S. Court of Appeals (D.C. Circuit).  A three-judge panel has reversed, saying that a silent departure from Board precedent cannot survive judicial scrutiny.

     “It is elementary that an agency must conform to its prior decisions or explain the reason for its departure from such precedent.”  Randell Warehouse v. NLRB (SMWI L-359, AFL-CIO), #00-1155, 252 F.3d 445, 2001 U.S. App. Lexis 12400, 167 LRRM (BNA) 2340 (D.C. Cir.), reversing 328 N.L.R.B. 1034, 1999 NLRB Lexis 528, 161 LRRM (BNA) 1265, 328 NLRB No. 153, 1999 WL 554239.

Text: laws.findlaw.com/dc/001155a.html

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»  Editor's Note: Although NLRB decisions do not apply to the public sector, they often are “persuasive” to state public employment labor boards, e.g., only two states have rejected the Board’s “Weingarten” decision.



     “Application of the ADA to Contingent Workers Placed by Temporary Agencies and Other Staffing Firms,” EEOC Enforcement Guidance 915.002. May be viewed online or on downloaded at: www.eeoc.gov/docs/guidance-contingent.html

     “Building and Maintaining a Diverse and High Quality Workforce,” a guide to help Federal agencies develop an effective program to build and maintain a diverse, high-quality workforce and providing a legal framework for understanding and managing diversity. May be viewed online or on downloaded at:


Arbitration Procedures:  see  Disciplinary Interviews.
Pregnancy Policies and Discrimination:  see  Health Insurance.
Stress Related:  see  Disciplinary Punishment.
Telephone & Pager Monitoring / AV Taping:  see  Disciplinary Punishment.

Page numbers in [brackets] refer to the print edition.

Abdul-Azeez v. Federal Express Corp., #CV100-50, 69 L.W. 2793 (S.D. Ga., 2001). [119]
Barrett v. Amer. Medical Response, 2001 U.S. Dist. Lexis 7834 (D. Ore. 2001). [119-120]
Campbell v. Cmsnr. Int. Rev., 2001 Tax Ct. Memo Lexis 144, 81 T.C.M. (CCH)
     1641 (Tax Court, 2001). [124-5]
Cook County (Adult Probation Dept.) and AFSCME L-3486, 115 LA (BNA) 1025 (Wolff, 2001). [115]
Cramer v. Consolidated Frtwys, 2001 U.S. App. Lexis 13385, (9th Cir. en banc). [125-6]
Danskine v. Miami Dade Fire Dept., #99-14493, 2001 U.S. App. Lexis 12152 (11th Cir.). [123]
Erickson v. The Bartell Drug Co., #C00-1213L, 2001 U.S. Dist. Lexis 7550 (W.D. Wash. 2001). [120]
Guerrero v. Ashcroft, #00-3306, 2001 U.S. App. Lexis 12871 (7th Cir.). [121]
Illinois State Police v. FOP L-41, #4-00-0774, 2001 Ill.App. Lexis 505. [116-7]
McKenzie v. Lee, 00-30179, 246 F.3d 494, 2001 U.S. App. Lexis 5630,
     85 FEP Cases (BNA) 1184 (5th Cir.). [121-2]
Mike Yurosek & Son, #31-RC-6084, 292 N.L.R.B. 1074, 1989 NLRB Lexis 65,
     292 NLRB No. 124 (1989). [126]
O'Rourke v. City of Providence, 2001 U.S. App. Lexis 165, 235 F.3d 71,
     85 FEP Cases (BNA) 1135 (1st Cir.). [123-4]
Pepsi-Cola Bottling Co., 289 N.L.R.B. 736, 1988 NLRB Lexis 250, 289 NLRB No. 94 (1988).  [126]
Perry v. McGinnis, #98-1607, 2000 U.S. App. Lexis 6684,
     209 F.3d 597, 52 FEP Cases (BNA) 1009 (6th Cir.). [122-3]
Randell Warehouse v. NLRB (SMWI L-359, AFL-CIO),
     252 F.3d 445, 2001 U.S. App. Lexis 12400 (D.C. Cir.). [126]
S.D. Myers v. C&C of San Francisco, #99-16397, 01 C.D.O.S. 4894,
     2001 U.S. App. Lexis 13132 (9th Cir.). [118]
Southwest Ohio RTA and ATU L-627, AAA #52-300-00520-00, 115 LA (BNA) 1141 (Imundo 2001). [117-8]
U.S. v. Newark, #00-2368, 38 (1864) G.E.R.R. (BNA) 666 (D.N.J.). [119]

Canada federal employees: “Policy on the Prevention and Resolution of Harassment in the Workplace,” Secretariat, Treas. Bd. of Canada (Eff. 6/1/2001), 39 (1915) G.E.R.R. (BNA) 671. [118-9]

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