NFFE ARBITRATION WIN IN THE TIME OF #METOO
Although there has been a seismic shift on the media’s and public’s willingness to believe and support those reporting sexual harassment, it will be a while before we know how the #Metoo mindset is impacting accused employees defending themselves. NFFE just clobbered the U.S. Forest Service with some highly skilled legal representation of a member, winning reinstatement, back pay, interest, and attorney fees. It is just one case, but it is a vivid example of why Forest Service employees need to join and support their union. Continue reading
ARBITRATOR’S ALERT: FLRA BUILDS A BIGGER TRAP FOR ARBITRATORS
President Trump has installed his two operatives on the FLRA and they have set about deciding what they consider to be “fake law.” Among their first moves was to make it easier to overturn arbitration awards—unless arbitrators write them a certain way. Here are the legal background, the simplified facts of the case (70 FLRA 398), the new FLRA rules, and the workaround. Continue reading
YANKING OUR YO-YOS: ABROGATE AT ALL V. EXCESSIVE INTERFERENCE V. ENFORCEABILITY
As Kiko and Abbott pointed out in their recent decision terminating the “abrogate at all” arbitration review test in favor of a watered down excessive interference test the FLRA has modified the test in its four decades of operations at least half a dozen times. (AFGE, 70 FLRA 398) To put it more bluntly in terms that actual practitioners of day-to-day labor relations use, the Authority has once again yanked us around like a yo-yo, changing the rules and probably ushering in another half-decade of uncertainty and litigation. Now, every time a LR manager loses a contract interpretation or application case, s/he will not be able to advise the principal agency executive with certainty whether to appeal or to pay out before liabilities grow even higher. Before Kiko and Abbott decided to mark their territory at least the parties could look to six or so years of case decisions as benchmarks. Given that the two political views of the statute are likely to continue bouncing back and forth over whether abrogation or interference is the right approach, we want to suggest a third approach that has benefits for both sides of the bargaining table. Continue reading
WANT TO WORK AT HOME AS A REASONABLE ACCOMMODATION?
Back on January 2014 we wrote about an employee’s potential right to work at home if s/he otherwise qualifies for a reasonable accommodation. The post was entitled, “Want to Telework as a Reasonable Accommodation?” and provided a guide for union reps to make solid arguments in support of an employee’s request and for ER/LR specialists who have to make decisions on such requests. But there is a brand new decision out of the Sixth Circuit U.S. Court of Appeals that adds even more clarity to how one determines whether to grant the accommodation or not. Continue reading
WELCOME TO I&I RESOLUTIONS
If nothing else, labor relations is about managing conflict, and the better one is at doing that the better the job one is likely to do. A couple of ex- federal employees with a ton of federal sector ER/LR experience as labor and management advocates and neutrals have formed a company to help advocates on both sides of the table understand how to manage conflict and/or help them through significant ER/LR disputes. Not only were both of them actual advocates on each side of the bargaining table and labor relationship, but they experienced how hard it can be to give up traditional ways to dispute over something in favor of other, more scientific ways of doing it. In our book, experience as actual advocates gives them a step up on consultants who only ever worked as neutrals. The guys at I&I Resolutions know the challenge from the perspective of the client, not a disinterested third party. Check them out at their web site. They offer something different.
Posted in Bargaining
HATCH ACT GUIDANCE ON SOCIAL MEDIA
The federal election season is already underway and that means it is time to brush up on what the Hatch Act allows feds to do and prohibits them from doing. The Office of Special Counsel has just put out a helpful guide to what is OK and not OK on social media. It might be helpful to share it among the union members. Given that the OSC just notified President Trump that Kellyanne Conway has violated the Act twice and that he needs to consider disciplining her, that should be taken as a sign that all feds need to know what they can and can’t do.
FOR THE IN-HOUSE FMLA UNION AND AGENCY EXPERTS
Processing FMLA claims is an important part of the services provided by unions as well as agency ER shops. While the basics of the law are well-known, the odd situations and exceptions of the core rules are not. You can ignore them until they fall into your lap and hope that you then recognize that something is out of the ordinary here and that you need help from an expert. Or you can page through a summary of what the American Bar Association considers to be the latest unusual court cases and do that long before a need for your help pops up. We prefer the second approach and if you do as well we recommend you soon page through the ABA’s Summary of 2017 FMLA Court Decisions provided by our fellow bloggers at FMLAInsights.com. Here is a list of the most interesting chapters in the report. Continue reading
Posted in FMLA
Tagged FMLA ABA
HURRAY FOR MANAGEMENT?
As expected, our management guys on the FLRA (Kiko and Abbott) have started to come through for us managers. For years the Authority has insisted that once an agency enters into and approves a labor agreement it must live up to the promises it made therein unless the contract clause all but shuts down the agency’s ability to exercise a management right. It was terrible having to abide by promises we made employees—and maybe even a little insulting. But that all changed this week with the issuance of United States Department of Justice, Federal Bureau of Prisons (Agency) and American Federation of Government Employees, Local 817, Council of Prison Locals #33 (Union) 70 FLRA 398 (2018). Now we can sign contracts and ignore them with almost total immunity. Continue reading
FSIP THUMBS ITS NOSE AT FLRA
For over two decades FLRA has been issuing decisions outlining how an agency wishing to raise a “covered-by” defense to a union’s demand to bargain must meet the following test: ”If the agreement does not expressly contain the matter, then, under the doctrine’s second prong, the Authority will determine whether the subject is inseparably bound up with, and thus plainly an aspect of, a subject covered by the agreement.” DHS, CBP and AFGE, 69 FLRA 261 (2016). A quick computer search turned up over 100 decisions where FLRA has reaffirmed the “expressly contained in” and “inseparably bound up with” criteria. However, a federal judge looking to leave a personal legacy behind in precedent has refused to accept those criteria. He suggests, against FLRA’s advice, that a matter is “covered by” if it is within the “scope” or “compass” of an existing agreement—two hugely vague words that will generate generations of litigation. We expect that FLRA will continue to stay with the two-part criteria it has established enabling practitioners to benchmark off the facts of its dozens and dozens of covered by decision. But the FSIP just tastelessly stated that it would rather follow the judge’s advice than its parent agency’s precedent. Continue reading
Posted in FSIP
PANEL COVERS OVER ILLEGAL MANAGEMENT MANEUVER
FSIP is quickly stacking up examples of its extreme bias on behalf of management. Its latest stunt was to cover up, gloss over, steer around, compensate for, etc. an open and shut agency violation of law. FSIP wrote in its decision, “Throughout a portion of the parties’ negotiations, Management offered a transition MOU that largely mirrored the Union’s proposal as part of its final offer with little controversy.” But the agency then withdrew the proposal when FSIP took over the case. The proposal in question would have established a transition period for employees to meet newly established physical fitness goals before they were considered unable to perform the duties of their jobs and terminated. That was an open and shut case of illegal regressive bargaining, but that barely bothered the President’s appointees. Regressive bargaining occurs when a party withdraws a proposal from the table and replaces it with something worse for the other party without a good explanation. “A party’s withdrawal of a tentative agreement or a previous proposal, without good cause, is evidence of bad faith bargaining, but withdrawal does not establish per se an absence of good faith.”, Army and Air Force Exch. Serv., 52 FLRA 290, 304 (1996). See also Chicago Local No. 458-3M v. NLRB, 206 F.3d 22 (D.C. Cir. 2000). Continue reading