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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WHAT IS CO-WORKER HARASSMENT?

This VA case will give you a good idea. In a case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action. In July 2012 a VA work leader hit the “panic button” and summoned Agency police to her workstation because she was “afraid” of an employee.  When that investigation went nowhere, she moved her seat right next to his, and that, according to the employee, is when she started excessively monitoring, nitpicking, singling out, and provoke the employee.  The employee harassment complaint shows she was “constantly riding [him], screaming at [him] whenever [he was] late going on break,” even when he was busy helping a patient. Continue reading

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WE STAND CORRECTED; CONGRATS NFFE!

No sooner had we posted the story about AFGE reporting 18 consecutive years of membership growth and concluded that they outdid everyone else then we learned that NFFE rocked the federal sector labor community by reporting a 6.5% percent growth in dues paying members in one year. That is am amazing one year leap and just as much as testament to NFFE leaders in DC and throughout the country who are convincing long-time federal employees to finally see the benefits of organizing. Congrats and we hope this is evidence that NFFE is about to put together its own 18 year stretch of increasing employee support and union strength.

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A MINISTER, A MULLAH AND A MOHEL…

simultaneously report to the Herring Brook District Office of a federal agency for their first day of work. They were each hired as Customer Service Representatives for the agency.  The Mullah and the Mohel were given starting salaries of GS-9, Step 1 while the Minister was given a GS-7, Step 1.  The only obvious difference among them was that the Minister was a woman and the other two men. By the end of the week, they were good friends and got into a conversation at lunch where they shared their starting salaries. After a short conversation, the only reason they could identify for the difference is that the Minister had a lower salary in her previous private sector CSR job than the other two did. Otherwise, they were equally qualified for the job. So, off they went to HR to find out if that was the reason–and lo and behold it was. The HR Specialist pointed out how the two men refused to take the job unless the agency matched their previous salaries doing essentially the same private sector CSR work the Minister did.  What do you think happened next? Continue reading

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SAY “THANKS, BUT NO THANKS” TO BACK PAY FROM FSIP OR INTEREST ARBITRATORS

Few things make a union negotiator and members as happy as a Panel order that makes a pay increase retroactive. A fistful of cash relieves a lot of membership frustration with management. But as with so many good things, this also may be too good to be legal. Consequently, unions should think twice before exerting effort and bargaining chips inviting a Panel member or private interest arbitrator to order retroactivity. Panel orders can be challenged via agency head review and as detailed below there is a whopper of a legal argument available to agencies that does not seem to have been raised until recently. Continue reading

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THE AMAZING AFGE

While there are things that AFGE could do better, it is hard to imagine it or any other federal employee union doing a better job at building membership year after year. In fact, we can’t find another federal employee union that has increased its total number of members every year since 2001 like AFGE has. None! Zero! Zilch! Obviously, there is something special about AFGE’s national leadership—and the culture they have created–that motivates its local officers and stewards to recruit new members. This achievement is especially noteworthy because, given the 15 month freeze on new hires, these additional members must be coming from employees who previously refused to join. So, our hats off once again to former National President John Gage who got this record-setting streak going and to National President David Cox who has kept it going despite the decrease in the number of federal employees. That is great leadership. We have copied the Department of Labor reports showing the total number of AFGE members each year since 2001. Continue reading

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DON’T STOP READING WITH THIS FMLA/ADA HEADLINE

The Supreme Court just decided to not overturn a 7th Circuit decision that held a disabled employee was not entitled to additional leave once his/her FMLA leave ran out. The typical story headline reporting that decision is likely to lead employees to think the chance of ever getting additional leave as a reasonable accommodation is gone forever.  Not so. Even the 7th Circuit Court recognized there are circumstances where a disabled employee would be entitled to additional leave, particularly for short or intermittent leave requests. The key for the 7th Circuit was whether the additional absence amounts to being unable to do the job at all.   Moreover, this is only one of about a dozen circuit courts, each of which makes its own decision on this issue, as does the EEOC.  Here is a link to the Circuit Court decision if you want to know more about these post-FMLA leave requests.

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