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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WHAT HAPPENS WHEN “COVERED BY” MEETS IMPASSE?

The quick answer is “Nothing good for the union.”  Let’s assume that the parties have been bargaining over a 10-issue mid-term MOU, have agreement on five of the issues and disagree on the other five, and have reached impasse at FMCS.  If that is all there was to their dispute, the agency cannot implement its proposed changes until the FSIP resolves the dispute—assuming the union timely and properly invokes the Panel’s assistance.  But change one fact and the answer is totally different.  Continue reading

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PRESIDENT DISPLAYS GROSS IGNORANCE OF LR

Trump recently issued three Executive Orders aimed at punishing federal employees, who he prefers to call the “deep state,” and the unions that represent them. By this time it should surprise no one that he has again demonstrated how little he knows or expects his staff to know. One of the Orders bars agencies from putting in negotiated labor agreements any commitment to progressive discipline. His message is that the only good punishment is capital punishment when it comes to federal employees—outside the White House.  (We are still waiting to hear what punishment he imposed on Kellyanne Conway in response to the U. S. Special Counsel’s report that she violated the Hatch Act three times.) Continue reading

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WITH FLRA ENCOURAGEMENT AGENCY SHOOTS ITSELF IN FOOT DURING BARGAINING

After a long winter’s nap during which it did not issue a decision for two months, the FLRA ALJ shop has rejoined active society with a decision that exposes a major flaw in agency term agreement bargaining strategies as well as FLRA case law.  In AFGE, Food Inspection Locals and DoAg, FSIS, WA-CO-17-0402 (April 30, 2018) the ALJ found the union committed a ULP when it refused to bargain in response to the Agency’s demand to renegotiate the term agreement. The union claimed that the term agreement required the agency to submit the substantive proposed changes it wanted in the agreement before it was obligated to bargain even the ground rules for the pending renegotiation.  The GC and the ALJ disagreed finding that a vaguely worded clause did not waive the agency’s statutory right to initiate term bargaining. The FLRA will most likely uphold the decision in six months and the circuit court could rule about 9 months after that if the union appeals.  At that point, the union will have lost with the GC, ALJ, FLRA and Court and have no choice but to return to the bargaining table.  BUT IT WILL BE A TOTAL VICTORY FOR AFGE. Continue reading

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AGENCY OBLIGATIONS AT THE END OF THE 12 WEEK FMLA PERIOD

The folks at JacksonLewis law firm have put out a series of posts to alert primarily managers to mistakes they can commit when administering FMLA.  Their 15th post highlights what the employer must do when the employee is approaching the end of his/her 12 week FMLA leave period. We recommend you check it out, especially if involved with an employee who took more than 12 weeks of leave. Union reps just might managers making technical blunders that they can turn to the employee’s advantage.

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FINGERS, THUMBS, NEGOTIABILITY AND IMPASSE

Both labor-management parties are regularly guilty of missing the very significant distinction between a proposal being “non-negotiable” versus the agency having “no obligation to bargain” over it.  The pre-impasse bargaining process permits parties to use them interchangeably without any penalty. However, the union suffers the bargaining equivalent of capital punishment when it ignores the distinction once impasse is reached. In short, it forfeits the right to delay an agency-proposed change from being implemented even if it missed the distinction on one out of 20 of the disputed issues. Continue reading

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HOW EEOC PROTECTS FORMER EMPLOYEES

A former employee has 45 days after s/he leaves an agency to file a complaint over some discriminatory treatment.  That can be extended if the employee only learned of the discrimination after the 45th day.  But what about the employee who left six months or a year ago? Does the EEOC filing deadline rules bar them from filing?  The Commission issued a decision last December that spells out the circumstance under which a former fed can file an EEO complaint against a previous agency employer. Bryan v. Berryhill, SSA, EEOC No. 0120172731. In this case, the agency failed to comply with an EEO settlement requiring it to correct certain information in his personnel file.  Continue reading

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