THE KABOOM!!! OPTION: WHEN UNIONS BARGAIN IRRESPONSIBLY

After writing about what unions can do when an agency drags its feet in term bargaining, fairness demands that we also touch on what happens when the union negotiators bargain irresponsibly, e.g., they manufacture bogus grievance or ULP claims to avoid FSIP taking jurisdiction. Although it is rarely talked about, agencies have the ability to leave the union bargaining table leadership shell-shocked. Consequently, union negotiators need to keep this potential in mind lest they push the agency to enter the launch codes and attack. Continue reading

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CHALLENGING AN ADVERSE REASSIGNMENT DECISION

One of the appeal options an employee has when given (or denied) a reassignment is to claim that the decision was made for discriminatory reasons, e.g., race, gender, age, etc. But in order to prevail the employee must be able to show that the decision amounted to an “adverse action” as that term is understood in civil rights law. Very recent decisions from the EEOC and a court that can be confusing. Continue reading

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AFGE CELEBRATES AGAIN

Most victories for unions are modest, like the one we posted below where AFGE was able to reverse an arbitrator’s ruling denying them attorney fees in a back pay case. But every once in a while unions score a huge win, and AFGE had one this week with the announcement by the Obama Administration was going to stop using private contractors to run federal prisons. While it will be the first to admit that it could not have done this alone, AFGE nonetheless gets a considerable share of the credit for working with groups outside organized labor, as well as the still influential AFL-CIO to launch an allied attack on private contractors. AFGE’s Council of Prison Locals (C-33) has lots to celebrate and the union’s plan of attack on these contractors is a model that other unions will study for a while. Bravo, AFGE. You are making us proud.

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NLRB & CIRCUIT COURT SMACK DOWN “NON-DISPARAGEMENT CLAUSES”

Although it is rarely done in the federal government, private sector employers often impose “gag orders” on current and resigning employees in order to avoid a public airing of facts about how the company is run. (See American v SBA, 643 F.3d 330 (2011) for a federal employee example.) These are called “non-disparagement clauses” and they often force a resigning employee to choose between receiving some severance pay and exercising his/her rights under various statutes to pursue a public airing of the company’s laundry—dirty and otherwise. They can prevent the employee from even revealing evidence of criminal violations by the employer if he/she wants some severance pay or just an employment recommendation that does not doom his/her chances for another job, much less a reputation. The latest pop example of how these clauses are used as cover-up devices is the Roger Ailes-Fox Network fiasco which was allowed to fester and build because employees were required to agree to these clauses in their employment contracts and severance agreements. There are dozens of other examples where employees were prohibited from revealing evidence of financial wrong-doing, waste, abusive employee treatment, rampant discrimination, violations of law and commonly accepted morals and just paste-poor leadership. But the life of this core “cover-up” tool seems to be coming to an end, thanks most recently to the NLRB and Federal courts. Continue reading

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AFGE RESCUES ATTORNEY FEE CLAIM FROM ARBITRATOR ERROR

Arbitrators are paid to make the final decision, but nothing guarantees that they make the right decision. In a new case out of FLRA, AFGE demonstrated its intimate knowledge of attorney fee case law by convincing the Authority to order an arbitrator to reverse his initial decision denying the union fees. (See AFGE and Food Safety Inspection Service, 69 FLRA 519 (2016).) If you have followed FEDSMILL for a while you know how important we consider attorney fee claims to be for a union. A $40,000 fee brings in the same amount of cash that an additional 1,600 members does a year for a union like AFGE. (Less than two weeks ago we opened an envelope to find an arbitrator had awarded another union’s attorney over $450,000 for a simple grievance victory.) Continue reading

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GREAT NY TIMES ARTICLE ON THE DECLINE OF UNIONS

We liked this piece particularly because of how well it explains how vital unions are to a democracy and their impact of national elections. It makes it crystal clear why certain political groups are trying their best to crush them. Check out the Times’ “Decline of Unions….” It will take less than five minutes to read.

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WHAT IS A DISABILITY UNDER ADAAA & REHAB ACT?

The Dept. of Justice is about to issue its new regulation defining a disability. That means it is time for EEO, ER and Union leaders to take a few minutes to not just check it out, but also spread the word through their organizations if the new definition means things have to change. You can read the actual rule at the end of this blog comment from our friends over at “Disability, Leave and Health Management Blog.

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NFFE LIGHTS UP AUO-FLSA DISTINCTIONS FOR LEO PERSONNEL

What do you do if law enforcement officers in your unit are suddenly switched to AUO compensation for work that for years they had been paid FLSA overtime to do?  Our advice is that you check out two FLRA decisions NFFE litigators won that establish a fairly bright light on how unions can get their members the higher rate of compensation. In DoAg, Forest Service and NFFE, Local 5300, 68 FLRA 90 (2014) the agency tried to save some money by switching folks from FLSA to AUO for the time the officers would be patrolling a large, multi-day public event at one of the national forests.  NFFE objected and took the agency to arbitration and then FLRA to get their members justly compensated. Continue reading

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HOW UNIONS  FORFEIT MID-TERM BARGAINING RIGHTS

Although FLRA has issued close to a half-dozen decisions upholding the concept described below, unions still are making the mistake that forfeits their right to bargain over mid-term changes.  So we thought we would refresh a few recollections. In POPA, 66 FLRA 247, Management made a mid-term proposal to change one part of a performance awards program and the union responded with proposals addressing the full range of performance award program issues.  Management promptly notified the union that most of the union’s proposals were “outside the scope of its change” and therefore management was not obligated to bargain over them. When POPA refused to limit the bargaining to just management’s change, management unilaterally implemented the change and the union filed a ULP grievance challenging that. It lost and here is why. Continue reading

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HOW NOT TO DEAL WITH TROUBLESOME UNIT MEMBERS

What’s a union leader to do when a non-member (or even a member) openly criticizes the union or one of its leaders in front of other bargaining unit employees during work time? What if the employee was not just loud and disruptive, but also threatened to get the union decertified or the union leader removed from office? Can the union leader report the incident to management and ask it to discipline the employee for “totally losing control” with a co-worker? The answer is yes, but the FLRA just explained to one union vice president what they had better not do in reporting the employee. Continue reading

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