WHERE DO YOU BARGAIN PERMISSIVE ISSUES?

A lot of local unions think that they can approach their local management counterparts and demand to open bargaining over the permissive topics President Biden just made mandatory subjects of bargaining.  NOT TRUE! The statutory right to demand bargaining rests only with the exclusive representative.  So, if your local is in a consolidated unit of several or many local chapters only the head of that consolidated unit can make that demand.  The only way around that is if the agency agrees to bargain multiple contracts below the level of exclusive recognition, which, ironically, is a permissive right it has that the union cannot force it to give up.  See FDA and AFGE Council, 54 FLRA 630 (1998) which says that locals within a larger or consolidated unit only have the right to demand bargaining if delegated that power by the national parties’ agreement. But there are some ways around that. Here are some examples. Continue reading

Posted in Bargaining Negotiability | Tagged | Leave a comment

EEOC ORDERS AGENCY TO RESTORE HIGHER GRADED DUTIES TO EMPLOYEES

EEOC recently caught the managers at the Voice of American using a not so common trick to deny a couple of employees promotions.  The managers simply withdrew certain duties from the employees’ jobs so that when it came time to determine who was operating at what grade level there was no basis to promote these two women to higher grades like their colleagues. When the employees filed charges alleged sex discrimination, along with other bases, EEOC spotted the illegal scheme immediately.  It not only ordered that the employees be retroactively promoted back to mid-2017, but also that the agency restore the tasks it had withdrawn that were associated with more difficult and prestigious work. For more details, check out Madlyn F. and Lashawn C., v. Kelu Chao, US Agency for Global Media, EEOC Nos. 2019005498 and 2020003512 (2021)

Posted in EEO/Discrimination | Tagged | Leave a comment

BARGAINING OVER THE “TECHNOLOGY” OF PERFORMING WORK

Yes, we hear that a lot of agencies out there are dragging their feet about engaging in permissive bargaining.  Unions will just have to keep pushing the issue through the grievance procedure alleging violations of President Biden’s Executive Order and the statute. Be sure to request that the arbitrator order that any agreement reached be given retroactive effect and attorney fees if there is any potential for back pay. In the meantime, we area turning to another one of the permissive subjects of bargaining, i.e., technology.  Continue reading

Posted in Bargaining Negotiability | Tagged | Leave a comment

EEOC HIGHLIGHTS TWO REASONABLE ACCOMMODATION PRECEDENTS

When an employee asked for a change in her work schedule because of her medical condition, but did not technically request a “reasonable accommodation” for a disability, the agency concluded it did not have to treat it as a reasonable accommodation request under the Rehabilitation Act or ADA law. So, when some jobs were about to open that would enable her to continue working, all the agency offered was to let her compete for them.  The agency ultimately fired the employee for being unable to do her job. As part of its decision ordering the agency to rehire the employee with back pay, interest and a few other bundles of cash, EEOC made these two often applicable points about reasonable accommodation cases: Continue reading

Posted in Disability, Reasonable Accommodations | Tagged | Leave a comment

HOW TO BARGAIN OVER PERMISSIVE SUBJECTS NOW

President Biden has made the decision on behalf of all federal managers to elect to bargain over those subjects the statute identifies as permissively negotiable with the agency. (They are also known as those topics the agencies have absolutely refused to talk to the union about for the last 40-plus years.)  That has caused a lot of union leaders to ask just how they initiate that kind of bargaining given that the vast majority of term contracts are not open for renegotiation right now.  Well, here is how they do it. Continue reading

Posted in Bargaining | Tagged | Comments Off on

BARGAINING OVER THE “METHOD AND MEANS” OF PERFORMING WORK

President Biden just gave unions the right to bargain over the method and means of doing work, but not a lot of union reps know what that term includes. That is no surprise given that they have not been allowed to talk about method and means at the bargaining table for decades.  So, we thought we would dig into the case law and provide readers a more concrete list of what they may now bargain over as a method and means (M&M) of doing work. We will follow with similar posts on all the other permissive concepts. Continue reading

Posted in Bargaining Law | Tagged | 2 Comments

HOW INTERIOR PASSED OVER A GAY FIRE ENGINE CAPTAIN FOR PROMOTION

It happens all too often to gays, women, minorities, union reps, the disabled, seniors and others considered too different from those with the power to make decisions – and that is why it is so important that union reps familiarize themselves with the details of how it is done.  This posting explains how the Dep’t. of Interior managed to screw over a gay Supervisory Fire Engine Captain who ranked first among seven candidates for promotion when the original Best Qualified List was constructed. Continue reading

Posted in Gender/Sex | Tagged | Comments Off on

“CBP NATION”- A MANAGEMENT FACEBOOK PAGE

Some managers in a Homeland Security’s Customs and Border Patrol Texas port set up a Facebook page allegedly as “an outreach program for suicide prevention and awareness” for current and former employees.  It had about 11,000 subscribers. The ranking manager testified before EEOC that the information shared on the page was to be work-related, e.g. about job swaps, accolades, achievements, deaths, and port of entry stories. He also affirmed under oath that he and three other agency employees monitored the site for any derogatory, inflammatory, and/or offensive posts.  When found, they were deleted and the writer blocked.  Well, apparently those monitors did not do the deletion part of their job well because a female CBP Officer filed an EEO charge, and EEOC found the CBP Nation Facebook page images and other material that were sexists and otherwise objectively offensive to women. You can guess the rest. EEOC ordered the agency to figure out how much to pay this female employee in compensatory damages and attorney fees, and to discipline the involved managers unless it had a good reason. If you want to read more about the case, check out Elenor S. v. Chad F. Wolf, Act’g Sec., DHS (CBP), EEOC Appeal No. 2019005538 (2020)

Posted in Gender/Sex | Tagged | Comments Off on

FLRA BOOSTS TELEWORK REMEDIES  

Few things are as frustrating as winning a grievance, arbitration or ULP only to find that the sole remedy imposed is an order that management not violate the law or contract again.  FLRA claims that remedies should “restore, so far as possible, the status quo that would have obtained but for the wrongful act,” and that they should be chosen in part as a “deterrence of future violative conduct.”  Even the courts have talked tough about remedies, “An approach to remedies that systematically fails to deter non-compliance, or dilatory compliance, with the Statute’s directives is fundamentally at odds with the Authority’s responsibilities. . .”  Continue reading

Posted in Flexiplace | Tagged | Comments Off on

COVID-19, THE ADA, THE REHABILITATION ACT, OTHER EEO LAWS, AND ULPs

Along with the surge on COVID cases our county is experiencing there is a surge in employee requests for union help in connection with those who get the disease and have chronic after effects, those who fear getting it from exposure to co-workers, those who have objections to vaccinations, etc. Lots of different laws are going to come into play, e.g., the labor laws making it a ULP for an agency to unilaterally implement a new COVID 19-related policy—unless there is an emergency or business necessity.  Our fellow bloggers at The Labor and Employment Law Blog just posted a very helpful piece entitled, “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws.” We recommend it as a good way to alert yourself to the various tools the union will have to represent members.

Posted in Medical Issues | Tagged | 2 Comments