GRIEVING A FAILURE TO MENTOR OR DEVELOP EMPLOYEES

Very few labor agreements or grievances address an employee’s right to career development opportunities. But a new case out of the EEOC suggests that this is a field union reps should think more aggressively about. The Commission upheld an employee’s claim of sex discrimination in how the agency chose to mentor people and detail them into career enhancing situations. To reach that conclusion the EEOC, an arm of the federal government, decided that the denial of career development opportunities can be just as much of an adverse action against an employee as termination or failure to promote. Consequently, union reps stand on firm ground now when they ask to address those issues in negotiations or file a grievance over them. For example, … Continue reading

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DON’T MAKE THE GRIEVANCE MISTAKE THIS UNION DID

Who knows why they did it or even if it was knowing and deliberate. But a union that normally represents state and locally police ripped the rug out from under a federal employee’s grievance by citing the wrong section of the Family Medical Leave Act at every stage of the grievance. It cited the provisions that apply to state and local folks, not the ones that apply to feds.  The primary lesson to be learned here is that unless your contract requires you to cite a specific section of a law or regulation, DON’T.  In our experience, … Continue reading

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A BIT OF WIGI/ALOC GOOD NEWS FROM MSPB

Some people call it a Within-Grade Increase (WIGI) issue while others use the Acceptable Level of Competence (ALOC) label. Both refer to the salary step increases employees qualify for periodically.  While it is rare that a manager ever denies a step increase, denials do happen.  And when they do it is important for the union to know the unusual details of challenging a denial of this 3% salary increase. We have posted three important pieces on this issue which we list and link at the end of this one.  But MSPB just issued what it calls a precedential decision dealing with the right to challenge a denial, giving employees and their unions a new option. Continue reading

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CBP DEAF TO DEAF EMPLOYEE RIGHTS

A person EEOC identifies as Antwan applied to be a Customs & Border Protection (CBP) Agriculture Specialist where he would check for food and plants being brought into the US illegally by travelers or importers. He was and is “profoundly deaf” and due to a speech impairment uses American Sign Language. Although he met all the other requirements, CBP medically disqualified him because it concluded he would “have difficulties, communicating using a telephone to gather and exchange information and communicating verbally with members of the staff and public…Complainant’s hearing loss and speech impairment…would likely affect the safe and efficient performance of the essential job tasks.” Here is how Antwan overcame CBP’s inability to hear the law and wound up with years of back pay, other benefits and the job. Continue reading

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WHAT A GRIEVANCE REMEDY REQUEST SHOULD LOOK LIKE

Few things bother us more than arbitration decisions sustaining a grievance only to find that the union did not ask for everything it was entitled to get.  So, we like to pass along examples of cases from arbitrators, EEOC, MSPB, FLRA, etc. that contain complete remedies.  We hope it will prompt unions to ask for more than a cease and desist order when drafting grievances.  Here is a great example case.  Continue reading

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RETALIATION/REPRISAL IS EASIER TO PROVE THAN EEO HARASSMENT

Not long ago we wrote about how EEOC rejected an employee’s claim of a hostile work environment, but sustained his charge of EEO reprisal based on the same facts.  The point of that post was that it is easier to prove reprisal than hostility. A new EEOC decision makes that point again, but based on circumstances that might surprise you. The employee did not have to prove he was passed over for a permanent promotion; it was sufficient to show that the agency failed to give him temporary or acting assignments which would have improved his experience within the Agency and supported a lateral career move. Most unions never even think about challenging how these temporary career-building assignments are passed out. Continue reading

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REMEMBER THIS FOR WHEN THE GRIEVANCE HATERS RETURN

Although the FLRA is once again operating as a neutral and professional labor relations administrator, there will come a time when once again at least two of the three seats will be filled with Presidential appointees selected because of their disgust at, contempt for and ridicule of collective bargaining. When that time comes your union had better have learned from the legal abuses of the 2017-21 era and perfected the way you do business. Otherwise, you are going to get mowed down.  At FEDSMILL.com we are keeping a list of things to do now to prepare for those days and one of them is to allege a ULP whenever grieving an alleged agency contract violation.  Here is why. Continue reading

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AI’S “ChatGPT” CAN HELP UNION REPS NOW

How often have you been frustrated trying to find someone in the union who knew the answer to a question? Either you can’t find them or they do not know the answer when you need it. Well, those days are coming to an end thanks to artificial intelligence programs like ChatGPT. Although it has some work to do before it takes our breath away with its expertise, here is an example of what it can already do for federal employee union reps. Continue reading

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FLRA AMISTAD PRECEDENT SCUTTLED

A good argument can be made that the previous White House staffed the FLRA with appointees eager to punish unions and employees for political purposes.  One of their more notorious revenge efforts was aimed at an employee’s right to be temporarily and retroactively promoted to a higher salary grade if s/he did work classified at a higher grade than their permanent grade. (See SBA, 70 FLRA 729 (2018)) In short, the prior FLRA leadership took the right away by inventing criteria that were almost impossible to meet.  Their alleged reason was that modern employees must accept that employers need to pay them less than the job legally requires. That always struck us as very similar to the speech the captain of the slave-ship Amistad probably gave his captives. Well,… Continue reading

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THE FLRA PRECEDENT PENDULUM SWINGS YET AGAIN

One of the problems with case law precedent is that it often changes every time a different political party occupies the White House (WH). Last week FLRA swung the precedent pendulum yet again reversing the anti-union, anti-arbitration precedent of the previous administration on the issue of procedural arbitrability objections, i.e., when an agency believes a law or contract provision prevents an arbitrator from even hearing a case, much less deciding it. These are often called interlocutory appeals.  Continue reading

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