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 Here is a list of the most interesting chapters in the report. Continue reading

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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

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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

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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

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One of our continuing beefs with the Panel is that it regularly fails to consider the long-term fallout of its decisions. For example, it recently rejected a union proposal that assignments to long-term travel TDY be given to the least senior employee when ”… there are two or more employees equally qualified for the assignment and there are no volunteers.” The Panel employee chose instead this agency proposal, “the decision to assign an employee to long-term TDY will not be based on criteria unrelated to mission.” The Panel chose the agency’s offer because the union failed to demonstrate a need for its rule and because it thought that management should have the discretion to select an employee with specialized skills and experience. Let’s put aside the fact that the union’s proposal allowed management to consider specialized skills and experience when determining qualifications, and focus on what can happen next when management tries to implement this clause. Continue reading

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What do you do if management suddenly announces that despite following a certain past practice for years, which obviously conflicted with the contract language, it is now pronouncing the past practice dead and insisting the parties immediately follow the clear and unambiguous contract language in the future? The first thing you would do is figure out whether you want to object, and if you do the second thing would be to read the newly issued decision AFGE, 66 FLRA 963 to refresh your recollection of how the law treats those situations. Continue reading

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Once the agency puts forth its explanation for why it made the decision the employee considered discriminatory, e.g., a promotion, a reassignment, a suspension, etc., the employee is expected to prove that the explanation is pretext or not worthy of belief.  There are thousands of EEOC and court decisions ruling on what is and is not proof of pretext.  So anyone involved in EEO complaints can either read and remember all of those decisions or develop a short, handy list of the most common ways to prove the agency’s explanation is pretext. We came across what we think is a very good list of them in a law firm’s power point presentation and thought you might want to use it as your own or to start building an even longer list of you own. You can add it to similar list we posted inEEO Cheat Sheet.”

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Practitioners on both side of the table come up against the following facts. The agency wants to keep overtime costs down. So, it decides to have its first line supervisors start doing what is universally recognized as bargaining unit work during the normal eight hour day and then give the supervisors comp time after the eight hour day to do the supervisory work they did not get done.  For example, assume the scheme works and the agency cuts out all bargaining unit overtime, which had amounted to about 100 hours a month for the last year. Does the union have a way to stop this and get paid for the overtime the supervisors took?  Does the agency have any liability? Continue reading

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It seems like every day we check this Administration has taken away one employee right after another.  So it was comforting to see the new EEOC decision reconfirming a disabled employee’s reasonable accommodation right to a reassignment if s/he can no longer perform the duties of his permanent position. The Commission outright stated, “As Complainant could not be accommodated in his current position, we find that the Agency, absent undue hardship, was obligated to consider reassigning him to a different position, consistent with the Commission’s regulations noted above.” When the agency did not so in this case,… Continue reading

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FLRA has ruled a number of FSIP decisions illegal and unenforceable. Usually, it is because the Panel-imposed language violates management 7106(a) rights. (See Note 1 below). But that is not the only example of how the Panel can act illegally, and it appears we just saw another with the issuance of U.S. Dept. of Agriculture, Rural Development, and AFSCME, Local 3870, 2017 FSIP 06 (2018). The impasse issue the parties brought to the Panel was how much official time the union rep should receive each week. The union wanted three days a week while the agency was only offering two, which was what the last contract provided. Consistent with the Panel appointees’ lack of any qualifications as neutrals, the Panel decided to give the union rep only one day a week. But is that legal? It seems to us that it is not for a few reasons. Continue reading

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