CHIEF ALJ LIES AND EMPLOYEE DIES
We will never know if the Chief ALJ’s actions hastened this employee’s death, but they sure did not help. A judge in SSA’s Office of Hearing Operations (OHO) in North Charleston, South Carolina had cancer and asked that he be allowed to work at homes on days he did not have hearings scheduled to facilitate his chemo treatment. When the agency denied his request despite a bundle of documentation from the employee’s physician that EEOC ultimately said was adequate, he filed an EEO complaint. The charge was an improper denial of an ADA reasonable accommodation.
EMPLOYEE FORCES AGENCY TO SEND HER TO TRAINING
You read a lot about employees grieving or challenging removals and suspensions as well as leave and promotion denials. But it is rare to see a case where the employee knew enough to file charges against an agency for its refusal to send her to training. So, we thought we would let you know about the NRC employee, who was the only woman in her work group, and who challenged the denial of her training requests quite successfully by proving disparate treatment. Aside from EEOC ordering the agency to pay for her training it must also pay her compensatory damages. If you know of a similar situation where an employee is being denied training that others are getting, check out this case: Lashawna L., v. Kristine L. Svinicki, NRC, EEOC No. 2019002093 (2020).
UNION REP TEST #11 (WIGI/ALOC)
Agencies do not often propose to withhold a Within Grade Increase (WIGI), which is also known as an Acceptable Level of Competence determination (ALOC). But because it is so rare, it is easy for a union rep to make a mistake about when it is time to file a grievance. FLRA has spoken to this very specifically. Here is the quiz question: At which of the following steps in the withholding of a within grade process can the union file a grievance?
- When the employee gets a letter proposing to withhold the increase in 60 days of s/he does not improve his/her performance.
- At the end of the 60 days irrespective of whether the employees gets a decision letter.
- When the employee gets the formal decision letter.
- Along with the employee’s request for a formal reconsideration decision.
- When the reconsideration decision is issued by management
- At any of the above junctures in the process. Continue reading
I WILL BURN DOWN YOUR HOUSE!
EEOC long ago ruled that it constitutes illegal reprisals for a manager to tell an employee who has filed an EEO complaint that was the “wrong way to go about getting a promotion.” (Binseel v. Dep’t of Army, EEOC No. 05970584 (1998). So when a manager recently told an employee that he would burn down his house if he pursued an EEO complaint you can imagine how easy it was for EEOC to award that employee money damages and order the agency to consider disciplining the employee. If you hear of statements falling anywhere between these two from managers upset about potential or actual EEO charges there is a way to fix it. See Jefferey K. v. Louis DeJoy, Postmaster General, EEOC No. 2019003406 (2020).
Posted in Retaliation
OH, HOW THEY LIE
FLRA Member Kiko made a point on her bio to mention that in her spare time she works with her church’s women’s group and Member Abbott majored in religion. Yet, these self-promoting theists have no problem making deliberate misstatements, commonly known as lies to those who have adopted the Ten Commandments. It is as if they are not just channeling President Trump, but also Jim and Tammy Bakker. Their latest fib popped up early in a new decision declaring that they were replacing the de minimis test for determining when an agency must bargain with a “sufficiently significant” impact on conditions of employment standard. They said this was necessary because case law shows that the de minimis test “…triggers an agency’s duty to bargain whenever management has made any decision, no matter how small or trivial….” If true, that might be a good foundational reason for making this change, but it is just not true. Not only has the U.S. Court of Appeals used the de minimis test to deny a union the right to bargain in 446 F.3d 162 (2005), but the Authority itself has used it to deny bargaining multiple times, e.g., 59 FLRA 728 (2004), 59 FLRA 46 (2004), 58 FLRA 363 (2004). We will not bother you with all the times ALJs and arbitrators used it to deny bargaining. So that is lie #1 in their decision. Continue reading
WHAT DID THIS UNION DO WRONG?
Here are the facts. See if you can figure out two things the union did wrong. The agency had a practice of placing a guard at each of its strategically important locations around its property every shift. When it suddenly changed that by requiring one staff person to cover two strategic locations per shift rather than one, the union charged management with violating the contract. The clause at issue read as follows: “The Employer agrees to lower inherent hazards to employees to the lowest level possible without relinquishing its management rights. A ‘strategic location’ is defined as a self-contained area and can only be safely secured by a single officer.” The union grievance asked for a return to the prior staffing level and that is what the arbitrator ordered. However, FLRA overturned the award saying that it intruded too heavily on management’s right to assign work. Have you identified the two errors yet? Continue reading
UNION REP TEST #10 (Crediting Plans)
We just read a Dept. of Treasury case where it was ordered to retroactively promote an accountant because the selecting officials on two promotions packages stumbled all over themselves (aka made stuff up) on the witness stand trying to explain how they made their selection decisions. They contradicted the written record, their agency attorney’s position, the agency’s final decision, and themselves. (See Rigoberto A., v. Mnuchin, Dep’t. of the Treasury, EEOC No. 2019003131 (2020). By the end of the case, the agency had four different explanations on the record for why it did not select the employee. It is a great example of why a union should get a copy of the agency’s crediting plans that tell ranking panels how to rate applicants whenever grieving non-selection. Unfortunately, FLRA allows agencies a lot of discretion to keep the plans out of bargaining unit hands. That means union reps have to be very precise when making a demand for the plan. See if you can identify which one or ones of the following situations gives the union rep the best chance of getting the plan: Continue reading
EEOC ORDERS RETRO INCENTIVE AWARD PLUS $5,000 SWEETENER
Throughout the year, the employee’s first and second line supervisors (S1 and S2) led him to believe that he was going to be rated at the top level. In fact, that is how they rated him until the third line supervisor (S3) ordered them to lower their recommended appraisal. Suspecting that other employees of different races and genders were not treated the same way, he filed an EEO complaint claiming disparate treatment. And here is how he won big time. Continue reading
A BACK-TO-SCHOOL GUIDE TO FFCRA CHILD CARE LEAVE
Thought we would pass along a Q&A guide from fellow bloggers at FMLA Insights. Although aimed at employers, it explains well employee rights that unions can enforce when schools are not fully operating. Our advice is to pass it along to your members so they have an idea of their rights
Posted in FMLA
HOW A GRIEVANCE CAN ALSO ALWAYS BE A ULP
The two Trump appointees are on the FLRA solely to weaken unions and collective bargaining and their favorite weapon is to overturn arbitrations case that employees win. They have been able to take tens of thousands of dollars in victories employees have won because of union error. Unless a grievance over a contract, regulatory, or statutory violation includes an unfair labor practice allegation unions cannot take the FLRA to court to have federal judges force the two Trumpettes follow the law. Consequently, every time a union files a grievance it should try to also allege a ULP violation. Here is how that can be done. Continue reading