VITALLY IMPORTANT THINGS TO KNOW ABOUT FSIP’S POWERS 

The statute establishing the Panel gives it the power to “take whatever action is necessary” to resolve an impasse. (5 USC 7119) However, often the Panel ignores the fact that there are a lot of limitations on those five words. Some deal with whether the Panel has the power to take jurisdiction at all over a dispute. Other limitations apply to the content of the final order the Panel can issue, and still others address the enforceability of a final order. Because the Panel tends to ignore these limitations, it is up to the harmed party to mount a proper challenge. Here is a quick review of all those limitations.  Continue reading

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ACCOMMODATING THE DISABLED ALMOST EVERY TIME IS NOT GOOD ENOUGH 

Not long ago the Dept. of Defense tried to defend itself against an allegation that it had failed to provide a deaf employee a reasonable accommodation by pointing out that it had done so 11 out of 15 times the employee asked during the period in question. But complying with the law 73% of the time is not a defense, and the EEOC told DOD to figure out how much of a check to give the employee as compensation for the harm done. Continue reading

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ARBITRATING EQUAL PAY ACT DISPUTES–EASY-PEASY

What can a Hispanic woman do if she is not getting the same salary as a man performing nearly identical duties? She can file a complaint with the EEOC claiming a violation of the Equal Pay Act (EPA), but she cannot file the same allegations in the grievance-arbitration forum because FLRA said so in DOL and AFGE, Local 12, 63 FLRA 216 (2009).  It claims that because the grievance would seek to have the person reclassified to a higher grade that violates the statutory prohibition against grieving classification matters. FLRA prefers to ignore the more basic nature of the grievance, i.e., a discrimination claim like any other that can be grieved and arbitrated. Moreover, even if an arbitrator ordered a person’s job upgraded law still permits the agency to immediately downgrade the job so long as it follows proper procedures. There is nothing “permanent” about any upgrade.  But how can unions ever get this changed if FLRA arbitration exception decisions on what is grievable are not reviewable in court?  EASY-PEASY! Continue reading

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TIME TO QUARANTINE CBP MANAGEMENT?

We have been watching CBP management for a while and it seems as if it is a diseased culture at the top of this vital agency.  EEOC has pointed out all too often that it finds CBP managers who take the stand and testify under oath just do not tell the truth.  That should be a removal offense for a law enforcement supervisor.  And the examples just keep coming. In yet another recent case, a manager filed an EEO complaint when she was not selected for the position of Supervisory Border Agent, National Frontline Recruitment Command, GS-15. Continue reading

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FSIP, DE FACTO NEGOTIABILITY DISPUTES & ULP’s

Agencies are obligated by executive order to refuse to negotiate over certain union proposals. So, what happens if a union makes proposals that directly clash with the provisions of Trump’s executive orders? One union has set out to find out with the following term agreement proposals: Continue reading

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EEOC ISSUES NEW GUIDANCE ADDRESSING THE ADA, REHABILITATION ACT AND COVID-19

Union reps need to stay abreast of information like this that will determine whether and how they can help their members.

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ARE YOU “GETTIN’ ENOUGH”— FROM GRIEVANCES?

One of the first mistakes a union can make when drafting a grievance is to not ask for enough of a remedy. Not only does the grievant potentially lose something she might have been entitled to, but the union misses a chance to raise management’s liabilities and risks. The FLRA has approved over three dozen different remedies arbitrators can impose.  Are you aware of each? Continue reading

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MAKING NEW PROPOSALS AFTER BARGAINING BEGINS

There is a little-known court case that authorizes union negotiators to make totally new proposals in the middle of negotiations. Continue reading

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THE “GET OUT OF FSIP FREE” CARD     

FSIP is the center of the known labor relations universe these days.  Agency negotiators are busting vital organs trying to rush negotiation disputes there because they know the fix is in.  Unions, on the other hand, are digging their heels in ankle deep to avoid that union woodchipper. So, this is a good time to review the FSIP “piecemeal bargaining” jurisdictional objection. It has been around the fed sector forever, although rarely used.  But it just might be the key to changing the balance of power between employees and their managers. Continue reading

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THE REASONABLE ACCOMMODATION SEARCH AREA

How far must an agency search in seeking a position to which it can reassign an employee needing a reasonable accommodation?  Here is what EEOC said recently. “We emphasize that a federal agency’s obligation under the Rehabilitation Act to offer reassignment is not limited to vacancies within a particular department, facility, or geographical area. Instead, the extent of the agency’s search for a vacant position is an issue of undue hardship. Enforcement Guidance on Reasonable Accommodation at Q. 27. Accordingly, absent undue hardship, the agency must conduct an agency-wide search for vacant, funded positions that the employee can perform with or without reasonable accommodation. See Julius C. v. Dep’t of the Air Force, EEOC Appeal No. 0120151295 (June 16, 2017).” Bill A., v. Megan J. Brennan, Postmaster General, EEOC Nos. 0120182340, 2019005819 (2020)

 

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