HOW TO AVOID THE “EXCESSIVE INTERFERENCE LITE” TRAP
Now that Trump’s two operatives on the FLRA have made clear their intention to weaken unions and collective bargaining, unions would be wise to counter the pending onslaught of precedent-trashing decisions from these two. One way they can do that is to write grievances to undermine the impact of the Kiko-Abbott scheme to overturn more arbitration decisions. We believe it will benefit both labor and management to focus on what the revised grievance will look like. So, we have drafted one below that addresses the hypothetical situation of an agency apparently deciding to deviate from the clear language of an agreement clause dealing with the equitable distribution of overtime assignments. The draft is annotated with footnotes/endnotes that explain why certain passages are included. Given that FEDSMILL does not provide legal advice, union leaders should check with their attorneys before using this model to ensure that it conforms to their own contract and to see if the attorney has suggested improvements. However, if the attorneys tell you that detailed grievances like this alleging contract and statutory violations is not needed at all, get a second opinion. Given that Kiko and Abbott appear to be primarily motivated by politics and anti-union animus, the best way unions have to push back is to rely on the subtle counter-tactics embedded in the statutory scheme that only a seasoned actual practitioner of labor-relations, who respects the value of collective bargaining, is likely to know. For our part we will try to outline how to respond to Kiko-Abbott decisions as they come spitting out. Continue reading
MADAME CHAIR, MEET MR. NEWTON
Sir Isaac Newton that is. We are suggesting this hook-up because you and your fellow Trumpian traveler seem to have forgotten about his third law of motion, namely, that for every action there is an equal and opposite reaction. Over the years we have noticed that political appointees from the House of Heritage-Koch all arrived thinking they would trash a few dozen FLRA legal precedents and everything would turn out the way they and their sponsors wanted. But, in the end, all they generally managed to do was to create a lot of costly L-M conflict with little substantive change and increasing amounts of procedural complexity. They wrongly assumed that the L-M parties would not adjust to get around their often vacuous attempts to make “Labor Relations Great Again” or something like that, e.g., such as you inventing the criterion that arbitrator penalties now have to be reasonably and proportionately related to the contract. (AFGE, 70 FLRA 398) Continue reading
CONGRATULATIONS, VELVA! YOU HAVE JUST WON 12 YEARS OF BACK PAY PLUS …
These employees getting a decade or more of back pay for standing up for themselves must feel like the “Publishers Clearing House” van just backed into their driveway. The latest “winner” is Velva from the Postal Service. She filed a class action EEOC complaint on behalf of all injured-on-the-job employees who were working in limited-duty or rehabilitation assignments. She took offense when the agency initiated a sweeping medical inquiry to validate that they were still unable to return to full duty. One of the great benefits of being a fed is that the employee can almost always claim back pay starting six years before his/her complaint or grievance was originally filed no matter how long it takes to win the case. While it is certainly legitimate for agency’s to try to keep job injury costs down, … Continue reading
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.
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.