IS THE FSIP LEGALLY STAFFED? PROBABLY NOT.

If Presidents ignore one tiny clause in the statute, the FSIP can be used as a political club to punish unions and the employees who support them.  After all, the President can draw all the appointees from one political party, none have to be confirmed by the Senate, there is no statutory criteria for its decisions to meet, courts cannot review its orders, it need not give the parties due process hearings before making decisions, each can be fired by the President for no reason at all and without recourse, etc.  Virtually every check and balance mechanism in the American legal system was withheld from the design of the Panel. Consequently, Trump (and before him Reagan and W. Bush) weaponized it by staffing it with right-wing, political ideologues with long records fighting unions. The only thing potentially stopping the Trump’s Panel from essentially suspending the statutory collective bargaining system during its reign is the tiny statutory clause that requires its members be appointed, “…solely on the basis of fitness to perform the duties and functions involved….” (5 USC 7119(c)(2)). Continue reading

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WHAT HAPPENS WHEN “COVERED BY” MEETS IMPASSE?

The quick answer is “Nothing good for the union.”  Let’s assume that the parties have been bargaining over a 10-issue mid-term MOU, have agreement on five of the issues and disagree on the other five, and have reached impasse at FMCS.  If that is all there was to their dispute, the agency cannot implement its proposed changes until the FSIP resolves the dispute—assuming the union timely and properly invokes the Panel’s assistance.  But change one fact and the answer is totally different.  Continue reading

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PRESIDENT DISPLAYS GROSS IGNORANCE OF LR

Trump recently issued three Executive Orders aimed at punishing federal employees, who he prefers to call the “deep state,” and the unions that represent them. By this time it should surprise no one that he has again demonstrated how little he knows or expects his staff to know. One of the Orders bars agencies from putting in negotiated labor agreements any commitment to progressive discipline. His message is that the only good punishment is capital punishment when it comes to federal employees—outside the White House.  (We are still waiting to hear what punishment he imposed on Kellyanne Conway in response to the U. S. Special Counsel’s report that she violated the Hatch Act three times.) Continue reading

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WITH FLRA ENCOURAGEMENT AGENCY SHOOTS ITSELF IN FOOT DURING BARGAINING

After a long winter’s nap during which it did not issue a decision for two months, the FLRA ALJ shop has rejoined active society with a decision that exposes a major flaw in agency term agreement bargaining strategies as well as FLRA case law.  In AFGE, Food Inspection Locals and DoAg, FSIS, WA-CO-17-0402 (April 30, 2018) the ALJ found the union committed a ULP when it refused to bargain in response to the Agency’s demand to renegotiate the term agreement. The union claimed that the term agreement required the agency to submit the substantive proposed changes it wanted in the agreement before it was obligated to bargain even the ground rules for the pending renegotiation.  The GC and the ALJ disagreed finding that a vaguely worded clause did not waive the agency’s statutory right to initiate term bargaining. The FLRA will most likely uphold the decision in six months and the circuit court could rule about 9 months after that if the union appeals.  At that point, the union will have lost with the GC, ALJ, FLRA and Court and have no choice but to return to the bargaining table.  BUT IT WILL BE A TOTAL VICTORY FOR AFGE. Continue reading

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AGENCY OBLIGATIONS AT THE END OF THE 12 WEEK FMLA PERIOD

The folks at JacksonLewis law firm have put out a series of posts to alert primarily managers to mistakes they can commit when administering FMLA.  Their 15th post highlights what the employer must do when the employee is approaching the end of his/her 12 week FMLA leave period. We recommend you check it out, especially if involved with an employee who took more than 12 weeks of leave. Union reps just might managers making technical blunders that they can turn to the employee’s advantage.

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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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