Posted on April 23, 2024 by AdminUN

GILBERT & BROIDA RESCUE DISABLED CBP OFFICERS

Way back in 2014 we wrote about a Customs and Border Patrol Officer with sleep apnea who asked to not be assigned to night shift or overtime work because his condition required that he get eight straight hours of sleep a night. The agency terminated him because it believed that these were essential duties of the job and there was no way to reasonably accommodate such a request. Although EEOC ruled the employee’s rights were violated, MSPB overruled EEOC and upheld the termination in August 2014. It agreed with the agency that it could never allow an employee to get out of working overtime or nights. The employee went looking for help to represent him in the very unusual Special Panel appeal process and to his good fortune (as well as that of all other temporarily or permanently disabled CBP Officers) the attorneys at Gilbert Employment Law took on the case. Given its legal significance to all CBP Officers the Panel allowed other parties to file amicus briefs, at which point Peter Broida, a renowned expert in MSPB matters, joined Gilbert in this fight. To make a long story short, they won and got the employee reinstated with back pay and compensatory damages. But it is important to understand what rights this case did and did not establish for all CBP Officers. Continue reading →

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Posted on April 23, 2024 by AdminUN

HOW FAR BACK CAN A BACK PAY CLAIM GO?

We are getting questions about how far back an arbitrator can order an agency to grant back pay as if there is some legal limit on it, e.g., do appropriation laws bar going back more than 6 years from the day the check is cut.  We are not going to get into the laws “allegedly” limiting how far back arbitrator can go. Rather, we thought we would point out a few cases where arbitrators and judges have ordered agencies to go beyond six years prior to the date the grievance or claim was filed, even if that means decades. 
Continue reading →

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Posted on April 16, 2024 by AdminUN

NAMING GRIEVANTS: A SOURCE OF UNION POWER 

Two members come to you, the union steward, complaining that the manager is no longer following the agreement’s provision about how to distribute overtime and they want to grieve.  After they leave, you call two other union members who work in the same group and ask if they want to grieve.  One says yes and the other no.  You never ask the three employees of the same group that have refused to join the union.  What can you do here to make the nonmembers regret their decision? Continue reading →

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Posted on April 16, 2024 by AdminUN

TWO ROOKIE MISTAKES

A 2019 FLRA decision opens with these three sentences, “In this case, Arbitrator Anthony R. Orman, found that the Agency violated Article 21, Section 4 of the parties’ collective-bargaining agreement by failing to distribute overtime in a “fair and equitable manner.”[ But he denied the Union’s requested backpay remedy because the Union failed to show which employees were available and would have accepted the opportunity to work the overtime.  We find that the Arbitrator’s denial of backpay is not contrary to the Back Pay Act (BPA).” Continue reading →

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Posted on April 9, 2024 by AdminUN

RATING PANEL GRIEVANCES: WE HAVE SAID IT BEFORE AND HERE IT IS AGAIN

Attacking the scores of a promotion rating panel is hard to do under traditional labor law.  But, if you can find a reason to allege that there was not just a violation of a contract provision, such as the need for all promotion actions to be “systematic and equitable,” but also an EEO violation, you have a better chance of winning the case.  EEO case law requires agency rating panels to carry a burden that most contract grievances do not.  The latest example of this is a case (David T. v. Megan Brennan, Postmaster, EEOC No. 2019001172 (2019)) that resulted in an employee getting retroactively promoted and compensatory damages in addition to back pay. EEOC said the rating panel members “failed to provide any specificity when asked why successful candidates were recommended and why Complainant was not.”  EEOC demands a lot of specificity that contract grievance arbitrators do not.  For example, EEOC wrote … Continue reading →

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Posted on April 9, 2024 by AdminUN

SEXUAL HARASSMENT QUIZ: WHO STAYS AND WHO GOES?

If one employee alleges that another employee in the same office is sexually harassing him, does the Agency have to move one to another workplace while it investigates the matter?  If so, who gets moved? EEOC just answered both questions in a case out of the Federal Aviation Administration. Continue reading →

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Posted on April 3, 2024 by AdminUN

LOVE THIS PIP PROTECTION IDEA

Being put on a PIP is often the beginning of the end for an employee. The manager uses it to focus the crosshairs on their target and all that remains is to pull the trigger. MSPB and arbitration can stop some management abuses, but not the big one.  By that I mean that they cannot mitigate a penalty imposed in an unacceptable performance action. Consequently, unions need to place as many employee protection devices in the PIP process as they can. An old AFGE arbitration victory started me thinking about this when I read that the union had negotiated the following clause into its agreement: Continue reading →

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Posted on April 3, 2024 by AdminUN

GRIEVANCE QUIZ: ALMOST PERFECT EXCEPT FOR …

Below is a hypothetical grievance inspired by one that actually went to arbitration and FLRA. The union lost on a technicality in both forums. See if you can spot the error before we reveal the answer.

TO:   Station 12 Director

RE:   Grievance

The agency has had a practice of allowing up to 2/3’s of the Customer Service Reps to take annual leave on the day before and day after a federal holiday. This practice has been in place for six years beginning with a memo you issued to your managers in 2012. However, a week ago the agency announced it would no longer allow more than 1/3 of the employees to take annual leave before or after next month’s July 4th holiday or subsequent federal holidays. When our union Chief Steward sent your Labor Relations Officer an e-mail asking “to negotiate over the number of employees who will be allowed to use leave around holidays” and that the agency delay implementing the change until those negotiations are concluded, the agency refused and implemented the change.

This violates Article 4 of our collective bargaining agreement which requires advance notice of and an opportunity to bargain over changes. It also violates 5 USC 7116(a)(1 and 5), the statutory obligation to bargain.

The union asks that the agency reinstitute the 2/3s practice and make whole any harmed employees, including the grant of attorney fees if back pay is awarded.

/s/ Sammy Gompers, Steward Continue reading →

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Posted on March 27, 2024 by AdminUN

UNION REP TEST #5 (Negotiations –An Agency’s Specific Notice Obligation)

We have said it often before.  The biggest process mistake management can make while bargaining is to violate this obligation, and aggressive enforcement of this obligation by the union increases its visibility, credibility, and bargaining clout.  Simply stated, the law requires management to give the union “specific notice” of any change in conditions of employment before the agency can implement the change. But there are a lot of subtleties and details union negotiators should know well.  We have posed 10 True-False questions below followed by the answers.  Test yourself to get a sense of how well you know this area of law. Continue reading →

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Posted on March 27, 2024 by AdminUN

THE $5.97 TRAVEL CLAIM VICTORY

A fed traveled for an agency to a Vegas conference, but before leaving he submitted a travel voucher for the projected cost of the trip.  For some unknown reason the agency took over three months to pay him. Consequently, he filed a supplemental voucher to cover his  $27.65 interest payment. The agency only gave him $21.68, arguing that interest accrues not from the date the employee enters the claim into its system, but from the date the travel office reviews it. To make a long story short, … Continue reading →

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