EEOC LAYS OUT PATH TO WINNING PROMOTION GRIEVANCES

EEOC just gave union reps a gift that can go on giving for a long time. It explained how to greatly boost the chances of winning grievances for union members passed over for promotion.  Let’s begin with some facts from the case to set the scene.  Gary met with his union steward to complain that Helen and Cedric were selected over him for promotion.  He pointed out that he has ten years’ experience in the job while Helen has one and Cedric two.  Moreover, he has often been asked to train past selectees for the vacant position. Finally, he noted that he was one of five BQ candidates interviewed, which suggests he must have had a pretty high score on the crediting plan.  The union steward told Gary that he would file a grievance alleging violations of the collective bargaining agreement provision requiring the agency to give all BQ candidates “uniform consideration,” and to ensure that all promotions are accomplished in a “systematic, fair and equitable manner.” THAT WOULD BE A BIG MISTAKE IF THAT IS ALL SHE DOES!
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IS THE STATUTE’S DUES WITHHOLDING PROVISION UNCONSTITUTIONAL?

It sure looks that way to an agency negotiator faced with the following union proposal:

SF-1188 dues revocation notices for employees who have had dues allotments in effect for more than one (1) year will be submitted to the payroll office only during pay period fourteen (14) each year. Revocations will become effective during pay period nineteen (19)

Under this proposal an employee must remain a member even if s/he disagrees with the policies, positions, or tactics of the union. For example, suppose an employee joined the union during pay period 15 of 2012, (let’s assume that was August 1, 2012). Then in pay period 16 of 2019, (let’s assume that is August 1, 2019), the union elects a new group of officers locally and/or nationally with whom the member severely disagrees. Maybe it is because of their support for affirmative action, or telework, or abortion, or some bill it is trying to get through Congress, or even a candidate for elected office.  The union proposal above would require her to remain with the union and pay dues until pay period 19 of 2020, (let’s assume that is October 15 2020). A new Supreme Court decision strongly suggest that is unconstitutional.  Continue reading

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UNION ATTORNEY FEES ENTER THE FLRA WOOD CHIPPER

It is common knowledge that about the only thing an agency needs to do to prevail at FLRA these days is file.  Consequently, it is not good news for employee representatives when FLRA decides to take on an issue.  In fact, it is not much different than being stuffed into a highly tuned wood chipper. This past summer Kiko and Abbott lifted the issue of union attorney fees onto the chipper feeder plate and began to push.  They bundled together eight or so decisions from four different arbitrators who had awarded two attorneys millions of dollars in fees and pulverized a long line of precedent to rule that they was not entitled to fees. (DoD, 70 FLRA 718 (2018))  Employee representatives stand to lose millions in income as Kiko & Abbott peddle this precedent throughout the case law. Continue reading

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TALK IS OK, BUT FILING IS NECESSARY

When management does something the union disagrees with, it if fine to try to settle the matter without formally filing a grievance, bargaining demand, ULP, etc. A new FLRA decision, however, makes it crystal clear that all the well-intentioned informal settlement discussions in the world do not change the contractual or statutory deadlines for filing a formal action to protect the union or employee’s official claim.  AFGE, 70 FLRA 973 (2018) If the union files the grievance, arbitration invocation, ULP, bargaining demand, etc. after the official deadline, it has waived its right to pursue the matter.  In fact, if the problem arose over an employee’s claim that s/he is owed back pay, don’t be surprised if the employee files a ULP against the union to force it to give her/him the back pay out of the union treasury. Ignoring a well-known filing deadline seems like “gross negligence” to us, which is the statutory standard for making the union libel for the money the agency owes the employee. We understand the lure of an agency official telling the union rep that s/he “is sure we can work this out without a grievance,” or “needs another two weeks to look into the problem before s/he can be ready to talk.” Grant all the extensions you want, but protect the union by a) asking for an extension to file the grievance or bargaining demand, b) filing the grievance or bargaining demand “only as a technicality,” or c) getting contract language that says whenever parties enter settlement discussions it postpones contract deadlines. Check with a competent union attorney for more ideas. We omitted any reference to ULP filings because parties do not have the power to extend those deadlines no matter how well-intended they are.

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EEOC ORDERS AGENCY TO PAY EMPLOYEE’S INCOME TAXES

The story just above this one reported that EEOC ordered an agency to increase an employee’s back pay check by enough to cover the extra income taxes she would have to pay due to receiving multiple years of income in one tax year. So, we thought we would quote from another new EEOC decision in which it discussed in detail what an employee must show to have his/her extra income taxes paid.  EEOC wrote, . . . Continue reading

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KIKO & ABBOTT GET GREEN LIGHT TO CRACK DOWN ON “SEXUAL DEVIANTS”

If there is one thing that is undeniable about Kiko & Abbott it is that they have been true to the policies of their political cult.  Just about any time they had a chance to destroy an employee’s arbitration victory they took it because collective bargaining and employee rights are not part of their cult’s plan. So, we can expect big things from these two Trumpian tribunal terrorists now that OPM has deleted from its web site instructions to treat transgender federal employees as human beings with all the rights “sexually normal” people have. Along with their political godfather’s current request that the Supreme Court make it legal to oppress people for their sexual orientations, we assume that Kiko & Abbott are now looking high and low for a case where they can once again demonstrate their loyalty to the regime’s view of what is normal and crush a transgender employee’s arbitration victory.  So, heads up out there union reps. It appears we may be at the dawn of a new fight, one that we thought we won long ago, to push back against those who want to denigrate the humanity of others because of their sexual orientation. And don’t be fooled by thinking that surely religious people would not do this because they believe that a human being is their god’s work.  This is an exception to the rule for that group where they allow themselves to correct what they perceive as their god’s errors.

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“SHE IS ON MEDICATION”

A supervisor asked a contractor to keep an eye on an employee who had yelled and cursed on the job that day and to report back to him about any further incidents. The supervisor then told the contractor that the employee “is on medication.”  What the supervisor did as described in the first sentence above is ok, but what he did in the second sentence violates law even though it may seem like a tiny, single incident.  Continue reading

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NEGOTIATOR ALERT:

Kiko & Abbott are working hard to undermine, gut or obliterate nearly every right employees and unions have.  But, often all they are doing is placing extra obstacles in the road that practitioners can get around if they modify their term agreement. So, Fedsmill.com is taking on the task of helping Negotiators work around the Kiko-Abbott droppings. We are going to issue Negotiator Alerts that point them in the right direction or even give them some proposed language to work with. Today, we are taking on the damage they did to the efficient and logical flow of grievances through to arbitration, which we explained in the posting entitled, “KIKO-ABBOTT RIP UP ANOTHER ARBITRATION AWARD.”  These workarounds will often drive negotiated agreements to deeper levels of detail, complexity and liability, but zealous political appointees really don’t care about that.  For them it is all about stroking their egos—or whatever. Here is the proposal that will help practitioners get around the mess created by U.S. Agency for Global Media, 70 FLRA 946 (2018). Continue reading

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A BIG OLD LIAR & A BIG OLD BP+ CHECK

One of the things that pops out of reading the cases employees win before EEOC is how blatant the lies are told by agency officials. Normally, we don’t comment on a specific case, but one just jumped off the page and hit us between the eyes this week. So, we are going to publicize it to drive home the point that employees should use the EEOC process when the agency action makes no sense. Unlike arbitration, it often requires the agency to explain its actions that arbitrators enforcing contracts or other statutes do not. The honor of our first posting about outright lying goes to a Postmaster trying to defend against a charge that he retaliated against an employee for filing an EEO complaint.   As EEOC wrote in its decision, Continue reading

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KIKO-ABBOTT RIP UP ANOTHER ARBITRATION AWARD

Continuing their campaign of overturning virtually any arbitrator award that dares to sustain a grievance, this dynamic duo of decisional dissembling has created yet another reasons for screwing over employees. Moreover, they did it without citing a single federal or private sector case as precedent for doing so after about 40 years of federal sector case law and about 80 of private sector law.  In this new case, they stated an arbitrator does not have the right to deal with all the issues flowing from a remedy s/he imposed even if s/he formally retained jurisdiction over the rollout of that remedy.  Kiko and Abbott believe that if the initially ordered remedy has been implemented, no matter how imperfectly, the arbitrator loses the ability to settle the parties’ dispute over the flawed implementation of the original remedy.  Continue reading

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