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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THE OPTION OF WORK WHILE ON FMLA LEAVE

We recommend that advocates on both sides of the table check out this post from the folks at JacksonLewis, who get paid to advise managers. It raises the idea that unions could demand that agencies provide employee on FMLA leave with work, including telework tasks, so that the employee can stay away from the agency worksite for a longer period of calendar time by stretching their 12 weeks.

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YO-YO KA IS NO YO YO MA

While the world of music is blessed with the genius of Yo Yo Ma,  the Federal LMR community is stuck with the screeching of Yo-Yo KA.  Kiko and Abbott (aka The KA), our two little TRUMP-ettes, have decided once again to yank us LMR practitioners like a yo-yo from the stability and comfort of long-time legal precedent. They just announced that the bargaining obligation only covers changes in “conditions of employment,” not changes in “working conditions.”  As they see it, one of the canons of statutory construction, which they never specifically cite, requires that the two terms must mean something different since they are not identical. That is the equivalent of denying the existence of synonyms in the English language, such as a donkey and an ass.  Apparently, The KA believes management is suffering such a huge injustice now that an entirely new exception to the bargaining obligation is needed.  It matters little to them that this will lead to years of litigation, during which management reliance on the rule could cost the government millions in back pay and attorney fee damages. The current publicly known cost to an agency of a single blunder is $900 million, but nothing says it can’t go higher. Continue reading

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BORDER PATROL CAUGHT VIOLATING CIVIL RIGHTS OF ITS OWN

A Border Patrol supervisor initiated an investigation of a subordinate claiming that Complainant exhibited “lack of candor.” But EEOC found it was done solely because the employee had named the supervisor as a responsible management official in a pending EEO complaint. About the same time, the employee was denied a career-building reassignment.  EEOC found that decision also was done to retaliate against the employee. As relief, the Commission ordered the Agency to take the following remedial actions within 120 days: Continue reading

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WHEN AGENCY AWARDS DISCRIMINATE

Unless the union has negotiated a criteria for granting awards or other safeguards agencies are largely free to do what they want with awards—unless the employee can find that s/he was treated differently than someone in a different protected class, e.g., race, gender, national origin, age, disability status, etc.  EEOC drove that point home in a 2017 Agriculture Department decision and in the process provided a road map for others that want to get similar relief to that DOA employee.  She got a retroactive cash award, a right to be paid compensatory damages, and an order that the agency consider disciplining the responsible manager.  Here is how she did it. Continue reading

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EEOC PAYS LOSERS TOO

Suppose an employee files an EEO charge or grievance over a denied promotion and the judge finds that there was discrimination in how the employee and other candidates were treated. But also assume that the judge also concludes that the complaining employee would not have been the one selected even if there was no discrimination. The job would have gone to someone who did not even challenge his non-selection. The grieving employee will probably feel likes/he lost. S/he is not getting the promotion or any back pay.  But there is a substantial consolation prize. Continue reading

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NFFE, NON-DISCRIMINATION AND THE NLRB

Way back in 1986 NFFE demanded an agency give it data on employees so that it could pursue civil rights claims on their behalf, and FLRA upheld the union’s ground breaking logic then as well as two years later. See NFFE Local 29, 22 FLRA 667 (1986) and NFFE Local 589, 32 FLRA 133 (1988).  Not long after those precedent-setting cases, AFGE joined the struggle in 32 FLRA 133, 44 FLRA 1405, firmly establishing that unions are entitled to information about how various personnel actions such as awards, promotions, training, etc. are doled out among the various civil rights protected groups. Then, a week ago the NLRB issued a decision adding its weight to FLRA precedent on this issue.  That decision will likely play a role shortly in the federal sector because FLRA precedents cited above all pre-dated the imposition of the particularized need (PN) standard.  The PN standard now requires that any union requesting that kind of data  needs to make a more sophisticated argument, especially to President Trump’s appointees. So, we thought we would walk through what that would look like so that advocates on both sides of the table argue and/or administer this thoroughly. Continue reading

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ATTORNEY FEE TURMOIL AHEAD?

In NAGE and DOD, DLA, 69 FLRA 572 (2016) the Authority signaled that it is willing to reconsider the criteria for approving employee attorney fee petitions. Given the pre-disposition of the two Trump appointees, Kiko and Abbott, unions and the private bar would be wise to think, plan and coordinate ahead about the possible directions these two could go in adjusting how fees are set.  Nor should they ignore the fact that the current FSIP is likely to be very, very receptive to agency bargaining demands for language that limit attorney fee recoveries.  So, now is as good a time as any to speculate on how this might play out. Continue reading

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HOW UNIONS CAN BOOST MEMBERSHIP AND OFFICIAL TIME

Now that FSIP has announced that it is going to reduce unions’ official time allotment if the unions do not increase their activity on behalf of employees, unions need to step up their representational activities. The best way to do that is to make sure all the unit employees not only know their rights, but also know that the union can help them enforce those rights. (As we have said before, sadly the American education system spends more time on the War of the Roses than the employment rights that will shape the next 50 years of a person’s life. That is a gap that unions have to fill.) We suggest that unions send all unit employees, not just members, an e-mail each week that contains a short story about a different right they have. It is OK to post the story on your web site, but that is not as good as pushing the story into their e-mail box.) Below you will find over 50 stories we have chosen from the nearly 900 FEDSMILL postings that were written for the typical employee. Pick one a week and push the information out to everyone in the unit along with perhaps a short message that your union is ready to help employees who might be experiencing a similar problem. Unions need to advertise just as much as any other business, and if they do so they should see a jump in membership as well. (Union leaders have our permission to copy these and any other story.) Continue reading

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