UNION REP TEST#13- Loss of Status

Assume that a supervisor gets upset with an employee, who has long had special status in the work group and takes all that away from her.  Up until this run-in with the supervisor, this employee was the acting manager whenever the supervisor was gone, the expert everyone was directed to when they had technical questions, trained all newcomers, given all the public speaking opportunities the group had, and was allowed to pick the most interesting cases to work on rather than have them assigned to her randomly.   What can you do for the employee if the supervisor does not downgrade her? Continue reading

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WHAT IF YOU JUST ALERT MANAGEMENT TO AN EEO PROBLEM BUT NEVER FILE A COMPLAINANT?

A well-meaning Corrections Supervisor approached the Warden and “… voiced some concerns with…promoting other staff to the acting position and compensating one at the higher grade, but not compensating another employee to serve in an acting role at a higher grade.” A few months later the supervisor approached the same Warden executive saying, “The Associate Warden’s Secretary, African-American female, expressed concerns to me she was being discriminated against as it related to providing relief to the Warden’s Secretary for lunch breaks, leave use, etc.” Just like the first time he talked to the Warden he was told, “not to worry about it.” However, a short time later the supervisor had his supervisory duties taken away. Continue reading

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FLRA’S CHURCH LADY EXPOSES HERSELF

The FLRA Chair, Colleen Kiko-Duffy, has made it a point to publicize not just her faith in God, but also her active involvement in her church. So, imagine our surprise when we saw her criticism of the parties to a labor agreement in a recent decision because they did not define what they meant when they wrote that official time could be used in a “reasonable” way. She was incensed because such a subjective term “failed to provide any objective guidance for resolving the dispute,” and that inevitably would lead to “protracted litigation at the public’s expense.” As we read her words, we could almost see her imagining herself atop the Mount fulminating, frothing and beseeching us masses to lead radically better lives—or at least write clearer sentences. But… Continue reading

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WHAT ARE COMPENSATORY DAMAGES FOR DISCRIMINATION?

A lot of FEDSMILL articles mention that employees who win discrimination grievances or complaints often get “compensatory damages.” So, we thought we would take just a minute to explain what that term means because these damages, up to an extra $300,000. beyond an employee’s back pay, interest and attorney fees, can often be much more than anything else an arbitrator or the EEOC awards the employee.  Compensatory damages include damages for (1) past pecuniary loss (out-of-pocket monetary loss), (2) future pecuniary or monetary loss, and (3) nonpecuniary loss (emotional harm).  Pecuniary losses are out-of-pocket expenses incurred because of the agency’s discriminatory action, including job-hunting expenses, moving expenses, medical expenses, psychiatric expenses, physical therapy expenses, and other quantifiable out-of-pocket expenses. These can be expenses incurred in the past or the future.  For example, if the employee’s future earning power has been reduced as a result of the discrimination that would be another instance of future pecuniary damages. Non-pecuniary losses are losses that are not subject to precise quantification, i.e., emotional pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, injury to professional standing, injury to character and reputation, injury to credit standing, and loss of health.  When filing a grievance alleging discrimination asking for “all appropriate remedies” should be enough to remove any doubt that the arbitrator has the power to award any kind of compensatory damages. Moreover, there is no need to prove these damages at the initial arbitration or EEO hearing. The decision-makers usually order the parties to take 60 or so days to discuss an appropriate settlement figure or to then return to them for a final decision.

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HOW TO AVOID THE “EXCESSIVE INTERFERENCE LITE” TRAP IN ARBITRATION

Now that Trump’s two operatives on the FLRA have made clear their intention to weaken unions and collective bargaining, unions would be wise to counter the pending onslaught of precedent-trashing decisions from these two. One way they can do that is to write grievances to undermine the impact of the Kiko-Abbott scheme to overturn more arbitration decisions.  So, we have drafted a model grievance below that addresses the hypothetical situation of an agency deciding to deviate from the clear language of an agreement clause dealing with the equitable distribution of overtime assignments. The draft is annotated with footnotes/endnotes that explain why certain passages are included. Given that FEDSMILL does not provide legal advice, union leaders should check with their attorneys before using this model to ensure that it conforms to their own contract and to see if the attorney has suggested improvements. However, if the attorney tell you that detailed grievances like this alleging contract and statutory violations is not needed at all, get a second opinion.  Given that Kiko and Abbott appear to be primarily motivated by politics and anti-union animus, the best way unions have to push back is to rely on the subtle counter-tactics embedded in the statutory scheme that only a seasoned actual practitioner of labor-relations, who respects the value of collective bargaining, is likely to know.  For our part we will try to outline how to respond to Kiko-Abbott decisions as they come spitting out.  Continue reading

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WHEN IS CO-WORKER HARASSMENT ILLEGAL AND THE AGENCY’S FAULT?

Although the lawyers break it down into a much longer list of criteria, EEOC recently put it in a nutshell as follows: “In the case of co-worker harassment, an agency is responsible for acts of harassment in the workplace where the agency (or its agents) knew or should have known of the conduct, unless it can show that it took immediate and appropriate corrective action.” Here are some facts from the case that will give you a more tangible idea of what that looks like. Continue reading

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DON’T LET EMPLOYEES PICK THEIR “WORK FROM HOME (WFH)” DAYS

The “Harvard Business Review” just posted a very thoughtful research piece on adjusting telework schedules now that the epidemic is winding down. It is short, very understandable and something union negotiators should be aware of because any management negotiator with half a cup of intelligence is going to bring up the data to argue for changes. Check it out here.

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TWO PROBATIONERS WIN REINSTATEMENT & GOBS OF BACK PAY

We love to pass on stories of probationers winning reinstatement and back pay because too many feds believe that there is nothing unions can do for probationary employees.  Here are the two latest examples. The first employee is going to be reinstated retroactive to December 2007 along with back pay for all that time and compensatory damages. That would include any career ladder promotions, step increases and time towards retirement among other benefits. And here is why she won. Continue reading

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FLRA POSTS 9 TRAINING FILMS ON THE ULP INVESTIGATION PROCESS

The Authority has done a great job of explaining every step of the ULP investigation process for anyone who might be involve in one on behalf of a union member or the union itself. Check them out at https://www.flra.gov/resources-training/training/video-training

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EVEN DISCLOSURE BY MISTAKE OF MED INFO IS ILLEGAL AND COMPENSABLE

Instead of sending an email notifying his supervisor that an employee had been taken to the hospital, a CBP manager sent all 118 co-workers at an Arizona station naming an employee and disclosing that he “had been transported to a medical center after experiencing rapid heartbeat and tightness in his chest and left hand.”  The employee filed an EEOC complaint alleging that his private medical information had been illegally disclosed and asking for money damages. Continue reading

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