WHEN PAST PRACTICE TRUMPS CONTRACT LANGUAGE

What do you do if management suddenly announces that despite following a certain past practice for years, which obviously conflicted with the contract language, it is now pronouncing the past practice dead and insisting the parties immediately follow the clear and unambiguous contract language in the future? The first thing you would do is figure out whether you want to object, and if you do the second thing would be to read the newly issued decision AFGE, 66 FLRA 963 to refresh your recollection of how the law treats those situations. Continue reading

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HOW TO PROVE DISCRIMINATORY PRETEXT

Once the agency puts forth its explanation for why it made the decision the employee considered discriminatory, e.g., a promotion, a reassignment, a suspension, etc., the employee is expected to prove that the explanation is pretext or not worthy of belief.  There are thousands of EEOC and court decisions ruling on what is and is not proof of pretext.  So anyone involved in EEO complaints can either read and remember all of those decisions or develop a short, handy list of the most common ways to prove the agency’s explanation is pretext. We came across what we think is a very good list of them in a law firm’s power point presentation and thought you might want to use it as your own or to start building an even longer list of you own. You can add it to similar list we posted inEEO Cheat Sheet.”

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WHAT IS THE ANSWER TO THIS OVERTIME PROBLEM?

Practitioners on both side of the table come up against the following facts. The agency wants to keep overtime costs down. So, it decides to have its first line supervisors start doing what is universally recognized as bargaining unit work during the normal eight hour day and then give the supervisors comp time after the eight hour day to do the supervisory work they did not get done.  For example, assume the scheme works and the agency cuts out all bargaining unit overtime, which had amounted to about 100 hours a month for the last year. Does the union have a way to stop this and get paid for the overtime the supervisors took?  Does the agency have any liability? Continue reading

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EEOC REAFFIRMS RIGHT TO ACCOMMODATION REASSIGNMENTS

It seems like every day we check this Administration has taken away one employee right after another.  So it was comforting to see the new EEOC decision reconfirming a disabled employee’s reasonable accommodation right to a reassignment if s/he can no longer perform the duties of his permanent position. The Commission outright stated, “As Complainant could not be accommodated in his current position, we find that the Agency, absent undue hardship, was obligated to consider reassigning him to a different position, consistent with the Commission’s regulations noted above.” When the agency did not so in this case,… Continue reading

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DOES FSIP’S OFFICIAL TIME ORDER VIOLATE THE LAW?

FLRA has ruled a number of FSIP decisions illegal and unenforceable. Usually, it is because the Panel-imposed language violates management 7106(a) rights. (See Note 1 below). But that is not the only example of how the Panel can act illegally, and it appears we just saw another with the issuance of U.S. Dept. of Agriculture, Rural Development, and AFSCME, Local 3870, 2017 FSIP 06 (2018). The impasse issue the parties brought to the Panel was how much official time the union rep should receive each week. The union wanted three days a week while the agency was only offering two, which was what the last contract provided. Consistent with the Panel appointees’ lack of any qualifications as neutrals, the Panel decided to give the union rep only one day a week. But is that legal? It seems to us that it is not for a few reasons. Continue reading

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LABOR RELATIONS AND GUN CONTROL

Does an agency have the right to decide when its law enforcement personnel can carry their weapons while off duty?  For example, can the Dept. of Army deny its law enforcement personnel who are armed while on the job, the right to carry off the job until they have been in the job for five years? Nope, or at least that is what the Office of the Special Counsel got DOD to accept. Continue reading

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PRESIDENT PUNISHES NONUNION EMPLOYEES

One of the great benefits that unionized federal employees have is that they can appeal any disciplinary action to a neutral arbitrator–from a written reprimand to a removal. In addition, unionized employees can get a decision as fast as the parties want their arbitration process to move, usually between 6 and 12 months beginning to end. The law gives unionized employees the arbitration option on top of the right to appeal the more serious disciplinary actions, such as suspensions of more than 14 days, demotions, involuntary reassignments, coerced retirements and removals, to the Merit System Protection Board (MSPB). Almost all federal employees can appeal to MSPB. For decades federal employees relied on their access to MSPB when deciding whether they needed to unionize and undoubtedly some voted against unionizing because they had that protection.  Well, the President just rewarded those feds who have not unionized by essentially voiding their right to appeal any adverse action. Here is how he did it. Continue reading

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WHEN IS UNILATERAL IMPLEMENTATION LEGAL?

If you are a union rep and think the only time an agency can unilaterally implement a mid-term change is when there is an emergency, you are woefully unprepared to lead a bargaining team and your members are in great jeopardy.  If you are an LR Specialist and think the same thing, you are missing many, many opportunities to legally unilaterally implement a change and very poorly serving your agency. We recently saw all 15 situations in which an agency can unilaterally implement a midterm change explained in one training class by LearningEverywhere. Like all their collective bargaining training, it was a class designed for practicing bargainers.  It pulled together the many unrelated legal decisions of the courts and FLRA into an easy to use list identifying each situation and providing the legal criteria necessary to invoke each.  It also addressed what unions can and are likely to do to respond.   Continue reading

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OMG! WHAT IS THE FLRA GC DOING?

Suppose that just as the FLRA is turned over to the control of two Presidential appointees with long records of anti-employee decisions and the FSIP populated with notorious anti-union (and apparently anti-government, too) decision-makers, agencies were given the right to demand in bargaining that employees and unions be obligated to repay benefits they got through existing agreements. For example, imagine a union negotiated a $200.00 a month public transit subsidy as part of a term agreement signed in 2012. In fact, let’s assume that the FSIP imposed the contract clause as part of a final and binding order. Agencies today have the right to propose that they can stop paying the benefit in the future, but soon they might be able to also demand that employees repay all the transit money they got in the 2102 agreement. Or they could demand that union reps repay the agency for some of the official time hours the current contract gave them the last few years. Or they could demand that prior arbitration victories be undone and employees repay the money they were awarded. Continue reading

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SICK LEAVE ABUSE DURING THE PROBATIONARY PERIOD

What can an employee do who is fired for alleged sick leave abuse during her probationary period? One employee recently showed that she can get reinstated with full back pay, compensatory damages, and an order that the agency consider disciplining the manager who fired her. Here is a quick review of her alleged abusive sick leave usage and the arguments she used to win. Continue reading

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