ON VACATION

We are taking a break until mid-August in order to drag the staff around the Mediterranean on the annual Fedsmill retreat to identify new ideas. See ya.

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NEW STUDY CONFIRMS AMERICAN WORKERS ARE GETTING RIPPED OFF

Here is a very interesting article from New York magazine that should prove interesting to anyone wondering about the actual facts about how employees are doing economically today.

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HOW AGENCIES BEAT THEMSELVES IN PROMOTION CASES

A GS-2210 IT employee (let’s call him William) got passed over for promotion in favor of a far younger employee even though William had  worked in a similar position for over 19 years, served in the Agency for over 25 years, and had veteran’s preference. So, he filed a complaint alleging the decision was based on sex and age discrimination. It was easy to show a prima facie case of sex and age discrimination. (1) He was over the age of 40 and the Selectee was not; (2) he was a different sex than the selectee; and (3) he was on the list of applicants deemed qualified that was forwarded to the Selecting Official.  But that is the easy part of winning  non-selection cases.  The real hard part for employees is proving that the agency’s legitimate, non-discriminatory explanation as to why he was not selected was not believable.  At least that is the hard part if the agency puts forth an explanation that meets the requirements of law. When it fails to, it loses– as EEOC just pointed out in a new case. Continue reading

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IS LYING THIS FLRA’S GREATEST POWER

A new decision from those twin Trumpian towers of truth-lite thinking  highlights the greatest power political appointees have to abuse electoral rivals.  Kiko and Abbott wrote in DoD, 70 FLRA 654 (2018) that, “…we find that, on May 3, 2010, the Agency expressly notified the Union that it could not, and would not, fully comply with the awards.  We also find that, on August 18, 2010, the Union expressly acknowledged that the Agency had not complied with the awards.” Consequently, when the union waited until October 6, 2015 to file a ULP it was too late. The case they described is unquestionably an open and shut case. The union loses. Continue reading

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SEXUAL HARASSMENT QUIZ: WHO STAYS AND WHO GOES?

If one employee alleges that another employee in the same office is sexually harassing him, does the Agency have to move one to another workplace while it investigates the matter?  If so, who gets moved? EEOC just answered both questions in a case out of the Federal Aviation Administration. Continue reading

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BEWARE OF NEW PROPOSALS MADE LATE IN BARGAINING

Anyone who has actually bargained knows that as bargaining nears the point of impasse, new ideas often are put on the table to get around an insurmountable objection from the other party.  For example, an agency might propose that it will pay for the union’s stewards to travel to three FLRA training programs in return for a union compromise that it need not pay for the union’s mid-term bargaining travel expenses.  Or the union might propose that in lieu of a merit promotion article that covers all personnel actions not excluded by OPM reg that it will accept a narrowed scope if the agency agrees to competitively select for details of 30 days or more to higher graded positions. Such moves are signs of a healthy and effective bargaining process, but beware the Panel’s predisposition to punish a party for doing that. Continue reading

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WELL, THEY DID IT AGAIN AT FLRA

We’re not referring to Abbott and Kiko overturning yet another long-standing labor law principle, ruling against a union, nor even overturning an arbitrator. That is who they are and what the President expected of them when they apparently passed his notorious Loyalty-to-Trump test to get their jobs. Unlike James Comey, they were not about to get hung on loyalty to the law rather than a political leader and sect. No, our surprise is that these two issued yet another decision so filled with legal defects. In IBPO, 70 FLRA 512 (2018), they ruled that suddenly it violates law, specifically 7116(d), for a union to file a 7116(a)(5) ULP charge with FLRA alleging an agency unilaterally changed some workplace condition and also file a contract grievance alleging  the agency also violated the negotiated contract obligation to bargain before making changes–if both claims involve the same set of facts. Up until they issued this change, the law allowed unions to do that for a long time. Continue reading

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DOES THE OSC OWE THIS BEDFORD, MA. VA EMPLOYEE AN APOLOGY AND LOTS OF CASH?

Although the Privacy Act was passed over 40 years ago, that doesn’t mean that everyone is following it.  For example, the President’s newly appointed Special Counsel issued a press release on January 25, 2018 whining about how the VA did not discipline an employee harshly enough to suit him—and identified the employee by name. Continue reading

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NAVY MANAGER DISCRIMINATES AGAINST PHILIPPINE EMPLOYEES

The EEOC guidelines on English-only rules, found at 29 C.F.R. § 1606.7, state that an employer may require that employees speak English at certain times in the workplace only if the employer can show that the rule is justified by “business necessity” at those times. An English-only rule is justified by business necessity if it is needed for an employer to operate safely or efficiently.  Apparently, not everyone in HR management is bothering to stay up with EEOC rules. Continue reading

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IS THE FSIP LEGALLY STAFFED? PROBABLY NOT.

If Presidents ignore one tiny clause in the statute, the FSIP can be used as a political club to punish unions and the employees who support them.  After all, the President can draw all the appointees from one political party, none have to be confirmed by the Senate, there is no statutory criteria for its decisions to meet, courts cannot review its orders, it need not give the parties due process hearings before making decisions, each can be fired by the President for no reason at all and without recourse, etc.  Virtually every check and balance mechanism in the American legal system was withheld from the design of the Panel. Consequently, Trump (and before him Reagan and W. Bush) weaponized it by staffing it with right-wing, political ideologues with long records fighting unions. The only thing potentially stopping the Trump’s Panel from essentially suspending the statutory collective bargaining system during its reign is the tiny statutory clause that requires its members be appointed, “…solely on the basis of fitness to perform the duties and functions involved….” (5 USC 7119(c)(2)). Continue reading

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