“GOVERNMENT EXECUTIVE” RECOGNIZES IFPTE & AFGE CONTRACTING OUT CLOUT

According to “Government Executive” the Department of Defense went down in defeat before the power of IFPTE and AFGE when the department tried to increase the amount of contracting out on DOD.  We recommend that article posted just before the holidays  for its comments about what to expect from the next White House administration on contracting out federal employee work. 

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MSPB NEEDLESSLY EMBARRASSED THIS FDIC EMPLOYEE

Not long ago we ran across an MSPB case filed by an FDIC manager challenging his demotion and reassignment for having a sexual relationship with a bargaining unit employee who reported to him. Although the supervisor made a big mistake and likely deserved the demotion as MSPB ultimately ruled, we felt bad for him because the Board identified him by name in a case that will be available on-line to the world for years and years to come. But our response was closer to outrage on behalf of the female employee he slept with because the Board also published her name along with the facts of their affair, their intimate e-mails, and other salacious details. So, both of these employees will have the intimate details on the world wide web forever for their parents, kids, grandkids, spouses, neighbors, co-workers, etc. to page through. Why? Because that is the way MSPB has always done it. Is there an alternative that would protect employee privacy, especially that of victims. Yes, the EEOC implemented it over a year ago. Continue reading

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UNIONS AGAIN OPEN THEIR FINANCIAL DEALINGS FOR REVIEW

Not only did the new year arrive a few days ago, but also the next round of LM reports began showing up as well. Unions file these nationally and locally with the Dept. of Labor to open their financial operations to members—at least a little bit. Union members, and especially local officers, should never complain about knowing what the union is doing with their dues money or future if they have not looked over these annual reports. If you want to check out you own national or local click on over to the DOL search site for these reports. Select the union you are interested in and whether you are looking for a local or national’s report. You can also enter a local’s number and on the bottom of the page the fiscal year if you want to target the search more precisely. Here are some things to look for in these reports. Continue reading

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DAMAGES POSSIBLE FOR EMOTIONAL DISTRESS IN FLSA RETALIATION CASES?

Let’s assume that you filed a grievance claiming two hours of overtime pay for the time a manager had you stay a “little late” during the pay period to get some work out.  When the supervisor responded to the grievance, she not only denied it but also began harassing you for nitpicking, not being a team player, and coming out as anti-management. That led to a lot of emotional stress, even a visit to a doctor for anti-anxiety medication.  While it is too early to tell if this concept will get picked up in the federal sector, the federal circuit courts seem to be supporting the idea that an employee can get compensated for emotional distress flowing from FLSA-related retaliation.  Both sides of the table should keep this idea in mind if they confront an FLSA retaliation case. The agency needs to figure these damages into its potential liability, and the employee needs to pursue every right s/he has or might have even if filing a retaliation grievance.  Check out this story from the law firm on Ogletree Deakins on the evolution of this precedent, “Fifth Circuit Joins Growing List of Circuit Courts, Holds Employees Can Recover for Emotional Distress in FLSA Retaliation Claims.” Then talk with professional legal counsel if a potential situation arises.

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CREATIVE SOLUTION FOR HIGHER GRADED DUTY GRIEVANCE

It is one thing to have a great contract provision backing you up. In this case, the AFGE-DVA contract covering Pharmacy Technicians in Richmond, VA required temporary promotions for those who performed higher graded duties for 25 percent of the time for 10 or more days.   That may be the best higher graded duty protection in any federal sector contract. But, you also need a savvy union to steer around the obstacles to enforcing contract rights through arbitration, and AFGE’s foresight did the trick in a very creative way when the employee asked for six years of back pay for the time he had been required to do the job of a person one grade higher than him. Continue reading

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MSPB TWEAKS ADVERSE ACTION DUE PROCESS CONCEPT

The agency indefinitely suspended an employee for losing his security clearance, and on appeal MSPB used the case to tweak it concept of due process protections in an adverse action. That makes it a case lots of LR/ER practitioners should know about. Continue reading

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WHAT IS ASSOCIATIONAL RACE DISCRIMINATION?

Is it illegal to discriminate against a person based on the race or nationality of their spouse or significant other? The attorneys at Fox Rothschild posted a short piece on what the courts have said and the newest case. We recommend you at least zip through it to make sure you are aware of the employee rights and agency liabilities associated with this concept. See “Associational Race Discrimination 101.” If the entire post does not open on your screen, copy everything visible and paste it into a Word page. It should pop up. Or print it.

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BEWARE THE RETROACTIVE CONTRACT CLAUSE

It does not happen often, but every few years we hear about an interest arbitrator or fact-finder imposing a contract clause that has retroactive effect. For example, suppose the parties went to the FSIP in 2007 and had imposed on them a contract clause that required the agency to fund the incentive awards pool for bargaining unit employees at the same percentage of total salary level it funds the pool for non-unit employees. Then, when the contract reopened into 2011 the union proposed that the awards funding formula be adjusted retroactively to sweeten the amount of money that should have been distributed for the last two years of the 2007-11 contract? If the 2011 negotiations go to impasse could the Panel or a private arbitrator acting in its place order the union’s proposal that effectively requires the agency to send out back pay checks to unit employees covering the last two award years? We doubt it and here’s why. Continue reading

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TAKING RESPONSIBILITY FOR ATTORNEY FEE PETITIONS

Yes, we admit that this is a pet peeve for us.  If even a few attorneys submit outlandish fee requests to EEOC, MSPB or arbitrators that will hand those already looking to screw over federal employees great facts to whip up a drive to reduce employee rights—and especially the right to attorney fees. (Even if that group only limited fee reimbursements for union attorneys to the union’s actual hourly cost for their labor it would have a significant effect.) So, we are going to put a spotlight on what we believe to be the kind of facts that are feeding the anti-fed posse. Continue reading

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REMEMBER THIS AFGE AWOL DECISION

One of the reasons we activated Fedsmill was to overcome the disadvantage regional and local union leaders are at when they have no way to hear about case victories from other unions.  That hobbles them and it can be terminal for the employee whose career hangs in the balance. For example, when an employee in a Florida VA cemetery was AWOL 21 times over a 100-day period the agency suspended him for 14 days. (The employee also had a zero balance of annual, sick, and FMLA leave during those 100 days.) When the case got to arbitration, … Continue reading

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