A NEW GROUND RULE CONTROVERSY 

Given the Trump Panel’s vicious attack on unions, it is no surprise that unions are working hard to reduce the Panel’s power.  One way to do that is to block an arguably illegal Panel final order from being implemented soon or ever, if possible. We ran across one last week that is bound to complicate Panel proceedings. The union proposed the following: Given the union’s retention of the right to ratify any final agreement before execution and given the potential that the union could have jurisdictional, legal, and substantive objections to the validity of a Panel decision, the agency accepts that union member ratification will be delayed until any objections to Panel proceedings are concluded so long as the union timely invokes the process or processes for challenging Panel decisions. This in no way lessens any statutory right the union has to delay implementation of an illegal Panel order.  Continue reading

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WHAT IS SURFACE BARGAINING? 

To begin, it is illegal.  It is also what Trump’s executive orders virtually mandate that all management negotiators do.  Finally, it is something union negotiators should learn to recognize because it could be the key to voiding an anti-union, anything-but-neutral FSIP decision.  So, we thought we would share some of the signs that management is engaging in surface bargaining.  If you spot an agency engaging in a few of the elements of surface bargaining, you should strongly consider filing a ULP grievance asking that the agency be required to go back to the beginning of bargaining to start again—but legally this time. A surface bargaining ULP charge, like almost any other good faith bargaining matter, would turn on a review of the totality of negotiations.  But, that does not mean a union has to wait until bargaining is over before it files a charge. If it has several examples of the agency’s surface bargaining it can sustain a case.  What follows is a list of statements from FLRA and judicial decisions that identify examples of surface bargaining, along with a Fedsmill comment after each.  Continue reading

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WHAT DO SELECTING OFFICIALS OWE BQ CANDIDATES–AGAIN? 

We can’t say this often enough.  When Selecting Officials non-select BQ candidates, especially those with higher scores than the selectee, the Selecting Official (SO) must provide the non-selected applicant something more than a vague, subjective, zero-content, non-verifiable reason why he/she was rejected. If the SO refuses to do it voluntarily, simply file an EEO complaint (or grievance alleging contract and EEO violations) and the SO will be forced to go on the record and under oath.  Continue reading

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THE CHAIRMAN’S FAVORITE MANAGEMENT BLUNDER

One of the best ways to teach is to tell a story and our chairman reels off one after another at board meetings.  But he has a favorite and it involves a case precedent that has not been cited by the FLRA since 1991.  Here is what happened.  It was early in 2007, during one of those periods where the political party in charge had installed an anti-union group of anything-but-neutral, knuckle-dragging, tongue-swallowers on the FSIP—much like today. As if that was not bad enough for the chairman’s union, the agency was led by a mean-spirited, operate-from-the-shadows, LR weasel who sent a truly obnoxious, hyped-up, union-hating chief negotiator out to do his dirty work. Imagine Mr. Clean hyped up on crystal meth and throw in a record-setting amount of arrogance about his self-declared superiority to any union rep on earth. That was the setting when the union had to negotiate a new term agreement and our chairman was the chief negotiator. Obviously, with the next Presidential election 18 or so months away, the best strategy was to figure out how to stall bargaining—and then pray—just like it is today. Continue reading

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UNION REP TEST #9  (Ratifying FSIP Orders)

QUESTION: What happens when a union refuses to ratify a term agreement partially based on an order from the Panel?  Can the agency just turn around and ask the Panel to impose the entire contract, including those issues the parties had agreed upon before going to the Panel?  If so, doesn’t that just mean that a decision not to ratify will merely delay implementation of the same agreement a couple of months? Continue reading

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FSIP BACKS OFF

The Panel does not publicize its decisions over whether or not to take jurisdiction, but they are very important to the LR community nonetheless.  In the case of Patent and Trademark Office and POPA, 20 FSIP 045 (June 2020) we see yet another instance of the union outmaneuvering the agency so as to block FSIP from putting one more collective bargaining agreement through its mean-spirited, anti-union meat-grinder. Knowing how to block the Panel from taking jurisdiction may be the most important skill a union negotiator can have these days as the Administration looks to crush unions. (Similarly, knowing how to avoid jurisdiction pitfalls is just as critical a skill for agency negotiators, as the PTO management team proved so convincingly in this case.) Fedsmill.com has posted many pieces on what blocks FSIP from taking a case that go into issues not involved in this PTO-POPA case. Among them are the following:

Just type in FSIP to the Fedsmill.com search box if you want to see them all.  Here is how the union blocked the Patent and Trademark Office management from getting FSIP’s union-hating help. Continue reading

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UNION REP TEST #8 (Part 2) – Prohibited Personnel Practices (PPP) 

This continues the self-assessment of your knowledge of prohibited personnel practices. Read through the hypothetical situations provided under each PPP and decide what you think.  The correct responses are posted below the quiz questions. Continue reading

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THE MONSTER OF EAGLE BUTTE, SOUTH DAKOTA

It has been a long time since we have run across as despicable a federal manager as the one at an HHS office there.  When an employee, a clinical pharmacist, filed an EEO complaint back in 2017, her third line manager apparently lost his mind.  He blocked her from getting a retention bonus she had been earned and that she was recommended for by two lines of management, threatened her with disciplinary action and demotion, tripled the number of reviews of her work, made her back off a proposed termination of an employee for a mistake that threatened patients’ lives, and then required the EEO complainant, Jacquetta, give the near-terminated employee a perfect rating. Continue reading

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PROBATIONARY VA MUSLIM MD GETS OVER $3 MILLION FOR DISCRIMINATION

On July 5, 2013, a VA Doctor filed a formal EEO complaint claiming that the VA discriminated against him based on race, national origin (Middle Eastern), religion (Muslim), and in reprisal for prior protected EEO activity. The employee was terminated about 3 months later during his probationary period.  The EEOC found Veteran Affairs guilty in all but one cited incidence and ordered the doctored be reinstated with back pay or given “front pay.”  (When an agency does not want to (or cannot) rehire the employee, EEOC orders the agency to pay the employee a salary anyway until his subsequent job equals or exceeds his federal salary. This is called front pay.) This probationer was given substantially more than $3 million in back and front pay along with damages. Check out Terrence H., v. Robert Wilkie, Sec’t’y, DVAs, EEOC No. 2019005811 (2020) for details.  This is a good case to show a probationer who thinks s/he has no way of pushing back against an agency when treated unfairly.

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EMPLOYEE AWARDED TELEWORK AND $30,000.00 

An arbitrator found that the agency violated the Rehabilitation Act and the agreement by denying the grievant a reasonable accommodation. As remedy, he directed the agency to grant the grievant a telework schedule, and awarded $30,000 in compensatory damages for the Rehabilitation Act violation. The FLRA upheld the award by dismissing two agency claims,i.e.,  1) the arbitrator didn’t account for the grievant’s partial responsibility for delaying the interactive process; and 2) the amount of compensatory damages didn’t account for the time during which the grievant was responsible for delays in the process. The FLRA explained that under the Rehabilitation Act, failing to make a good-faith effort to accommodate a qualified, disabled employee exposes an agency to liability for compensatory damages. AND THAT IS WHY A GRIEVANCE SHOULD NOT ONLY ALLEGE A CONTRACT VIOLATION, BUT ALSO AN EEO VIOLATION. Without the EEO allegation the employee would not have been entitled to the $30,000.00 in compensatory damages.  for more details, check out DoD, DLA and AFGE, local 1992, 71 FLRA 729 (2020) 

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