There is an ALJ case lingering in the FLRA decision pipeline by the members that will once again put the “covered-by” (CB) defense up for review. (See DoD and NEA) Having watched the CB defense come into being and judicially mutate into nothing short of a near-total extermination of mid-term collective bargaining, my opinion has been that it is built atop unsupportable assertions. This becomes obvious when they are isolated and examined individually. To do so, I have focused on the reasoning of the primary, and most accomplished, CB activists, Judge Harry T. Edwards, of the D.C. Court of Appeals. Like me he spent his formative years learning about language, reasoning, sentence structure, fallacies, and syntax in a little place called Uniondale.  True story, but for another time. Hopefully, this analysis will enable unions to sharpen an attack on the concept. Continue reading

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Way back in 2016 AFGE’s Border Patrol Council exercised the autonomy it has under the AFGE Constitution to back a different candidate for America’s President than AFGE and the AFL-CIO supported.  It turned out that it backed the winner and in return got a bundle of benefits for Border Patrol employees and their union reps that the White House tormented every other federal union. You can condemn that as we have, but that is the “American way.”  Another election is looming and it well known around LR circles that if it goes a certain way the White House will be controlled by people who want to crush unions into a fine dust. So, you have to wonder what the AFGE Border Council can accomplish if it once again breaks from AFGE’s election strategy and winds up backing a winner. Here is how we see it.  Continue reading

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The employee was a GS-11 Claims Specialist with SSA working in an office alongside 15 other GS-11 Claims Specialists and two GS-12’s. He was also a combat vet diagnosed with PTSD in 2012. While he worked at home during the COVID office closures, he encountered the following symptoms upon return: feeling overly stressed and worried; marked weight loss; hair lose; forgetfulness; irritability; anxiety; and due to a hostile encounter with a co-worker he testified “I fear for my safely. I have nightmares that he is chasing me around the office with a gun. I’m not sleeping.”  Moreover, the record showed that other employees in the office with physical disabilities were allowed full-time telework because they were unable to drive—a physical disability versus his mental one. When his request to work from home was denied, he  filed an EEO complaint not just alleging improper denial of a reasonable accommodation, but also that he was treated disparately under the Rehabilitation Act. Continue reading

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BARGAINING WITH JERKS – #1 (Information Access)

There are a lot of different types of negotiators on the management side of the table and one of them deserves to be labeled The Jerk. This is the person who has come to bargaining intent on oppressing the union rather than working with it, is a game player rather than problem solver, and goads the union into making technical errors that undermine or void its right to bargain.  So, we thought we would post occasional stories about how to deal with the various tactics of the table Jerk. Here is our first installment. Feel free to post your own suggestions at the end of the article.  Continue reading

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Wine them, dine them and fly them, but never ever tell them about (or let them decide) anything important. As our media headlines carry more and more stories about dictators and dictator wannabees, it is hard not to notice the parallels between how they stay in power and how non-profit CEO’s perennially dominate their own kingdoms. (Full disclosure here. I believe far too many CEO’s, especially in the non-profit world, have not just excessive power over their members, but also exercise it to the detriment of their organizations.)  So, maybe it will help to shine a light on how they do it in case anyone out there wants to change that in their own organizations. Continue reading

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Now let’s turn to the common labor agreement requirement that the grievance include “the article(s) and section(s) violated.” Again, this sounds simple and very often is, but there are important exceptions.  Continue reading

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A management law firm just posted a piece entitled, “Doesn’t the Pregnant Workers Fairness Act just require employers to treat pregnant employees just like they treat employees with disabilities?” Although it is written for managers, union reps will find it is thought provoking in terms of how to protect pregnant members.  We recommend you read it and remind you that pregnant employees can also at times be disabled employees depending on the facts.

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Most labor-management agreements list a few simple items that must be addressed to file a valid grievance, e.g., 1- name of the grievant, 2- agreement article and section violated, 3- date of violation, 4- brief description of the violation, 5- remedy requested, and 6- name and contact number of union rep. So, an inexperienced union rep might think it is therefore easy to draft a grievance, but the experienced rep knows that there are some serious strategy issues to decide under each of those six items.  This is the first in a six-part series that will explain what those strategic issues are. Part I deals with the Name of the Grievant. What is so complex about that you might be asking yourself?  Well, to borrow some famous words from our childhood, “Gather around and you shall hear.” Continue reading

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You have heard us describe other major employment law victories for federal employees delivered by Gilbert Employment Law (GEL). But this may top them all given that it overturns a Reagan Administration rule that prohibited FEHB plans from covering “[s]ervices, drugs, or supplies related to sex transformations . . . .”  We also wonder whether it opens the door for Rob Shriver, OPM’s Acting Director, to go back and remedy previous abuses of the trans community.  Continue reading

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The 4th Federal Circuit Court of Appeals just trashed an MSPB decision that upheld the right of Trump’s appointees in DHS/CBP to punish whistleblowers. It seems that some employees in the CBP Weapons of Mass Destruction Division (WMDD) noticed that the operation was collecting DNA information on travelers in violation of the law. When they raised this with the Chief Advisor to the Secretary of DHS in 2017, things suddenly changed for the worse for the entire WMDD program. So, they filed a whistleblower complaint with MSPB once they found a D.C. law firm that would take the case. Continue reading

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