GAG ORDERS

In our experience, gag orders or anything like that used to stop someone from talking about “bad stuff” that may be happening at the job are terrible.  FEDSWEEK just wrote a short piece on how gag orders imposed on federal employees can violate the law.  If your co-workers are under a formal order—or even an unwritten practice/expectation in a single work unit—barring them from discussing problems with anyone other than their supervisor, then the union should think seriously about going after it by teaming up with the office of Special Counsel.  The FEDSWEK piece is entitled, “OSC Stresses Restrictions on ‘Gag Orders’ against Federal Employees.”

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MENOPAUSE DISCRIMINATION

One thing we try to do at Fedsmill is to make union reps aware of new issues developing in the employee and labor rights areas.  For now, we will just call your attention to this article from Forbes entitled, “What Employers Should Know About Menopause Discrimination.” While written for employers, it provides a good initial overview of what this issue involves. Think about bringing this to the attention of all your members because providing useful information to BU employees is one of the most valued services a union can perform. If your national union is not yet talking about the issue, ask why.

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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

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CAN UNIONS SACRIFICE RETIRED GRIEVANTS?

Every so often we hear from a union officer trying to settle a grievance asking whether s/he can cut out of the deal anyone no longer in the unit, agency, or even federal government. For example, suppose an agency refused to pay 50 unit employees public transit subsidies one fiscal year despite a contract entitlement at the rate of $200 a month. If the union filed a mass grievance on October 15, 2004 that covered all 50 harmed employees and it took nine years to settle that case (October 15, 2013) after all the grievance steps, multiple arbitration hearings, FLRA exceptions, etc. it is very likely only half of the original 50 were still in the bargaining unit then.  Continue reading

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WHICH UNION PROTECTS ITS NON-UNIONIZED STAFF THE BEST

We have posted about a half-dozen articles complaining about how fed unions do an absolutely terrible, if not immoral, job protecting staff members not covered by the staff’s collective bargaining unit. (See  the list of them below.) These non-unit staffers are the proverbial sitting ducks who can have their income and vital benefits cut off in an instant if an elected union leader is in a bad mood, wants to strut his/her power, needs someone to blame for the leader’s own screw-up, or is just wallowing in paranoia. It is a toss-up as to whether it is more embarrassing that non-unit staffers have fewer rights to challenge a dismissal than the unit employees they supervise have or that the managers in the federal agencies they represent have. So, we thought we would show you a policy statement protecting non-unit union staff and ask if you can identify which union has adopted it—or even whether your own union has. Continue reading

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SOME PROBATIONERS JUST GOT A GUT PUNCH

Not all feds hold the same job uninterrupted throughout their probationary period.  Some get hired as seasonals to work a few months at a time, get furloughed, and then get called back. Others get hired into one job and move to another one during their probationary period.  They and those like them have had to string together enough months of work to satisfy their probationary period and the work they did in each job had to be similar.. Check out  McCormick v. Department of the Air Force, 307 F.3d 1339 and 98 M.S.P.R. 409 for an explanation of that criteria. But, the Federal Circuit Court of Appeals just through a large monkey wrench into that building body of case law.  See the FEDWEEK article entitled, “Court Takes Restrictive Reading on Completing Probationary Period.” An employee may be flattered to be offered a new job while still a probationer or the agency just might have a critical need for the employee’s help in another job during that time. But unions should start thinking about what they can do to make sure those in probationary periods at least have ADVANCE notice when a job change is going to force them to restart their probationary period.

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GILBERT & BROIDA RESCUE DISABLED CBP OFFICERS

Way back in 2014 we wrote about a Customs and Border Patrol Officer with sleep apnea who asked to not be assigned to night shift or overtime work because his condition required that he get eight straight hours of sleep a night. The agency terminated him because it believed that these were essential duties of the job and there was no way to reasonably accommodate such a request. Although EEOC ruled the employee’s rights were violated, MSPB overruled EEOC and upheld the termination in August 2014. It agreed with the agency that it could never allow an employee to get out of working overtime or nights. The employee went looking for help to represent him in the very unusual Special Panel appeal process and to his good fortune (as well as that of all other temporarily or permanently disabled CBP Officers) the attorneys at Gilbert Employment Law took on the case. Given its legal significance to all CBP Officers the Panel allowed other parties to file amicus briefs, at which point Peter Broida, a renowned expert in MSPB matters, joined Gilbert in this fight. To make a long story short, they won and got the employee reinstated with back pay and compensatory damages. But it is important to understand what rights this case did and did not establish for all CBP Officers. Continue reading

Posted in Disability | Tagged | 1 Comment

HOW FAR BACK CAN A BACK PAY CLAIM GO?

We are getting questions about how far back an arbitrator can order an agency to grant back pay as if there is some legal limit on it, e.g., do appropriation laws bar going back more than 6 years from the day the check is cut.  We are not going to get into the laws “allegedly” limiting how far back arbitrator can go. Rather, we thought we would point out a few cases where arbitrators and judges have ordered agencies to go beyond six years prior to the date the grievance or claim was filed, even if that means decades
Continue reading

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NAMING GRIEVANTS: A SOURCE OF UNION POWER 

Two members come to you, the union steward, complaining that the manager is no longer following the agreement’s provision about how to distribute overtime and they want to grieve.  After they leave, you call two other union members who work in the same group and ask if they want to grieve.  One says yes and the other no.  You never ask the three employees of the same group that have refused to join the union.  What can you do here to make the nonmembers regret their decision? Continue reading

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TWO ROOKIE MISTAKES

A 2019 FLRA decision opens with these three sentences, “In this case, Arbitrator Anthony R. Orman, found that the Agency violated Article 21, Section 4 of the parties’ collective-bargaining agreement by failing to distribute overtime in a “fair and equitable manner.”[ But he denied the Union’s requested backpay remedy because the Union failed to show which employees were available and would have accepted the opportunity to work the overtime.  We find that the Arbitrator’s denial of backpay is not contrary to the Back Pay Act (BPA).” Continue reading

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