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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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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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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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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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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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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FLRA, RETIREES & OTHER FORMER EMPLOYEES

Can the FLRA help retired or other former employees when an agency or a union interferes with that person’s current or potential employment? For example, suppose a federal agency negotiated a settlement with an employee that in lieu of termination she could resign with a clean record so long as she never applied for a bargaining unit position anywhere in that agency’s federal department.  Or imagine if a union, in lieu of disciplining and potentially prosecuting a local officer for theft let him resign the agency so long as he never worked in the future in an agency that union represented.  What could the FLRA do? Continue reading

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NOW THIS IS A WHOPPER…

of a remedy that union reps should keep in mind when drafting grievances, especially those that allege an EEO violation. It is the kind of remedy order that opens up the mind as to what is possible through a grievance. EEOC ordered the agency to do 13 different things after allowing a manager to discriminate and retaliate against an employee for raising EEO allegations. Here is the EEOC order in its own words. See if any of these remedies are things you never would have thought of. Continue reading

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5 COMMON TYPES OF REASONABLE ACCOMMODATIONS

Looking through the blogs posted by law firms representing federal employees, we ran across a useful post from PINESFEDERAL, a firm operating out of D.C., Houston and Atlanta. Fedsmill has posted a ton of material on reasonable accommodations, but we liked how this firm covered the issue simply.  In a perfect world, this is a piece that a union would forward to all its members or prospective members to alert them as to a benefit they may not even know they are entitled to. If your union experience is like mine, you have seen that most employees have no idea of all the rights they have.  We can thank the American education system for demanding high school students learn more about the War of the Roses than the laws in place to benefit them over the next 40+ years of their life. In any event, here is the post we recommend you forward to all stewards if no one else.

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DEFENDING FEDERAL EMPLOYEES IN PIP CASES

From time to time, we scan the blogs of various law firms that specialize in representing federal employees and find very useful information.  So, we thought we would start passing on links to these  posts.  We are kicking off this effort with a piece from the firm of Berry & Berry, located just outside D.C in Northern Virginia. Their post has the same title of this post and you can find it here.

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