AFGE recently terminated its second highest elected official, which makes this a good time to think through how agencies might react and unions can counter those reactions. Continue reading

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Although we are not the kind of folks who believe something just because an Ivy League Institution says it is true, it is almost always worth it to at least listen to what they have to say. The Harvard Business Review just posted a piece on this topic. If nothing else union leaders should read through it to focus for a few minutes on whether their members are happy and what the union can do about it to improve their lot one way or the other.

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One of the reasons an agency will raise to dismiss an employee’s EEO complaint is that the action s/he complained of was not adverse enough to be actionable.  While EEO law does require that employee can only file complaints over actions that are adverse, there is a lot of debate about what makes an action adverse enough to meet that test.  Consequently, practitioners on both side of the table should keep an eye on significant case decisions addressing that question, and the Second Circuit of the U. S. Court of Appeals just issued one of them.  Check out the blog from Goldberg-Segalla entitled, “Second Circuit: Notice of Termination is an Adverse Action Even if Rescinded.”  The court held that an employee can file an EEO charge over a proposed termination letter even if the proposal is withdrawn before it is acted upon. The court’s reasoning is what an employee’s representative would need to follow to make a good case when there is a question of whether an action is adverse enough. If you want to read the case yourself, it is known as Alana Schutz v. the Congregation Sherith Israel.

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This is a hypothetical; any connection to facts you may know of is purely coincidental. We have a great deal of respect for most union leaders and generally wish them the best.  But every once in a while an unethical one slips through and behaves in a way that hurts employees and damages the image of all unions. Management can ignore them or they can act.  We are rooting for them to act and want to outline how they might do it. Continue reading

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Not long ago we spotlighted AFGE not only for its monstrous increase in net membership last year, but for over 15 consecutive years of net growth. If you believe that membership growth is the surest sign that employees believe the union’s leaders are taking it in the right direction, AFGE could not have a more flattering piece of feedback. In that same piece we complimented NATCA for its continued net membership increases as well.  Now that all unions have filed their Dept. of Labor report for FY 16 we checked in to see if any other unions continued to grow during a time when staffing numbers are decreasing.  The news was good with NFFE, NWSEO and POPA all having had net increases.  Although we can’t prove it, based on experience we strongly suspect that membership increases today are the result of wise, forward-looking, risk-taking decisions made five or more years ago to install a strategic approach to membership building.  It is so much more than passing out a few flyers, small incentive checks, and a flashy PR material. So, Bravo and Encore to all of them who proved that membership growth is clearly possible at a time when staffing is decreasing.

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Collective bargaining law, particularly 5 U.S.C. 7114(a)(1), should be changed to deny those unions that have chronically low membership the right to delay the implementation of agency proposed mid-term changes in the conditions of employment covered by 5 U.S.C. 7106(a) and (b)(1).

Although collective bargaining can generate many benefits for employees, agency managers and the public as recognized in 5 U.S.C. 7101, there is one part of it that all too often undermines efficient and effective government. It is not the need to negotiate a master collective bargaining agreement establishing policy on over 250 HR issues. The agency needs a policy on those issues anyway. Nor is it that employees can serve as union reps helping co-workers enforce their rights. If employees’ co-workers were not there to represent them, many employees would hire lawyers, greatly complicating matters for the agency. It is not even that agencies have to devote limited budgeted funds to pay the salary and benefit costs of employees working as union representatives during the workday. If the agency did not fund this, it would have to meet with union reps after hours or on weekends, substantially delaying many meetings and decisions. Continue reading

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A basic law of physics is that for every action there is an equal  and opposite reaction. The President just reconfirmed his—let’s call it unfamiliarity–of that law by appointing the most anti-union group of alleged neutrals to the FSIP in the history of the Act. The uninitiated of the world unquestionably see that as a great thing for agency managers who will now win perhaps even more than the 90% of disputes that Becky Norton Dunlop’s Bunch delivered for agencies during President W’s term.  However, those with actual experience and sophistication in labor relations know that appointing a union-hostile Panel undoubtedly will produce a union reaction that creates more problems for agencies seeking to make midterm changes.  Let’s call them the unintended consequences of a poorly thought out decision. Continue reading

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There are a few things that separate an average union representational effort from a super one, and one of them is whether its reps are creative, e.g., they do things, even risky things, the agency did not anticipate.  A new decision out of the Federal Circuit Court of Appeals highlights a very gutsy move AFGE’s Social Security Council took to defend a fired employee. Other unions can learn from it and ER/LR reps can see another reason not to jump to conclusions based on surface evidence. Continue reading

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The Office of Special Counsel (OSC) recently smacked down the Dept. of Treasury FinCEN operations for screwing around with the merit system. The agency wanted to hire an attorney into a supervisory spot, but Treasury would not let them classify it as an attorney job. As a result, it was decided to advertise it at the GS-1801 job it always was, but to do things behind the scenes so that only an attorney with federal sector experience could get the job. Here’s how they did it and how we suspect a few other appointing officers manipulate the merit system. Continue reading

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Imagine that an employee asks for a week of annual leave in late August after using 3 weeks of FMLA in February to care for an ailing parent and the supervisor denies the leave.  The supervisor told her that she has already been gone far too long this year given her workload.  Has the supervisor retaliated against the employee for using FMLA? One of the issues a union or ER/LR rep must consider in answering that question is what the legal standard of proof is for retaliation cases.  Does the employee have to show that “but for” her use of FMLA the leave would have been approved or need she only show that her use of FMLA was viewed as a negative factor by the supervisor when s/he made the leave denial decision.  The good folks at OgletreeDeakins just posted an article providing an update on which of those two legal standards applies.  It is entitled, “Second Circuit Lowers Bar for Causation in FMLA Retaliation Claims.” While the courts are not unanimous on the answer to that question, their arguments are well-made and should consider when arguing for one or the other of these standards.

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