GRIEVING ULP CHARGES

While the traditional place to file a ULP allegation is with the FLRA, there are considerable advantages to grieving it—especially if you make some small changes in your contract grievance procedure. Continue reading

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WHEN HIGHER AUTHORITIES INTERFERE WITH BARGAINING

One of the more maddening parts of bargaining for a union involves an agency rejecting a union proposal without a good explanation. For example, when the bargaining agency refuses to agree to any increase in the employee uniform allowance, but fails to provide a reasonable answer why. A reasonable explanation for opposing the increase might include an inability to pay, comparability with other uniformed employees, examples of employee abuse of the current reimbursement, etc. Although there can be several explanations for such senseless intransigence, one is that a higher power has made it very clear via an order or just a stern warning that the management negotiators are not to bargain on the matter. Unions often have responded by filing ULPs relying on the following FLRA precedents listed in Dept. of Energy, 34 FLRA 361 (1990): Continue reading

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WAS THE TRUMP-BORDER PATROL COUNCIL DEAL A BRIBE?

On December 16 the Washington Post revealed Trump intervened in the Border Patrol Council’s collective bargaining negotiations with CBP management to give the union a deal no other union in the federal sector can get from their agency executives.  That raises the question of whether the transaction involved an illegal bribe. So, let’s address that. Continue reading

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RELIGIOUS ACCOMMODATION GONE NUTS?

Maybe a better title for this post would be “One Small Step for a Catholic, One Giant Leap for Catholicism.” EEOC just reported that the VA excused an employee from attending a simple training program on LGBTQ cultural awareness. The employee said that even being in a room where tolerance for needy, sick and wounded gay veterans was to be discussed clashed head on with his Catholic faith. (Check out Kendall C. v. VA, EEOC No. 2019004162 (2019)).  Continue reading

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TRUMP PAYS OFF BORDER PATROL UNION

The December 16th Washington Post reported that the President finally paid off the National Border Patrol Council (NBPC) for breaking with virtually every other federal employee union in the 2016 election to support his campaign. Even though Trump imposed on all the unions that did not support him executive orders limiting union official time to one hour a year per unit employee, The Post reported that the  president leaned on Border Patrol management to triple the number of official time hours the Border Patrol Council had under the old contract. We estimate that equates to about 5 hours a year per unit employee—rather than the one hour a year to which he has limited all other unions. Those repressive executive orders also stripped a lot of protections from the average federal employee.  Here is the Washington Post article. The Border Patrol Council has chosen to not post a copy of its new agreement on its web site yet for all other unions to read. Let’s hope that some union can use this information to build a case that the President has acted in an arbitrary and capricious manner  to exempt this union from the orders that apply to all others.

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WHEN AN EMPLOYEE’S CHILD IS DISABLED

Pass Me On to Unit Members: What protection does an employee have when a child’s sickness requires that the parent stay home, but the parent does not have leave to do so? Can the parent demand a reasonable accommodation under the Americans with Disabilities Act (ADA)? No. But the mom or dad can do something if the employer tries to discipline or fire them due to their association with a disabled child. The law firm of Saxton & Stump just posted a story about a new federal court decision that outlines how an employee can be protected from any adverse personnel action motivated by any association with ANY person protected by a civil rights act—not just the ADA. If this happens to a bargaining unit employee, check with a union rep.  While the employee could file an EEOC charge of “associational discrimination, ”the union can pursue that claim along with any violation of other laws, federal regulations, or the labor agreement to have an arbitrator reverse the damage the employer did.

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NOT SO FAST PANEL PUPPETS

AFGE’s very creative General Counsel’s office scored a major litigation victory recently in a case where it argued that FSIP must have at least 7 members on the Panel before it can render a decision.  That requirement of law has been on the books for decades, but overlooked by everyone until AFGE staff asked the proverbial “What if?” question. Spooked by the lawsuit, the White House did not wait for a court to club it into submission.  It moved swiftly to make sure the Panel always had at least seven members, and it had its finger puppets at the Panel issue a decision “ratifying all the decisions it issued during a twenty-six month period when it did not have seven members.  To that we say, “Nice try, but no cigar” for the following reasons: Continue reading

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EEOC BODY SLAMS ARROGANT/IGNORANT AGENCY

Do you remember our posts about how EEOC normally orders agencies to reveal details about their crediting plans when an employee presents a prima facie case of discrimination? Secretary Mike Pompeo’s staff does not and it just paid a heavy price for that. An applicant for Foreign Service Special Agent job filed a complaint when he was told he was rejected due to his score of 67 on the oral assessment phase of the selection process. State considered 80 a passing score. When the employee presented a prima facie case of discrimination, EEOC was obligated to produce a believable explanation for why it did not select him. It responded that he failed the oral assessment which measures 12 dimensions of his knowledge, skills and abilities using “scoring anchors.” However, either in ignorance of the law or outright defiance, State … Continue reading

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WHEN TO TELL THE FSIP TO TAKE A LEAP – Revised

Mark Carter has been a faithful lapdog of the rightwing community that seeks to bankrupt and otherwise crush unions. He has maintained the practice of finding against unions 90% of the time which began during the Bush W. Administration. (By way of comparison, during the Clinton and Obama Administration FSIP only found against agencies about 50% of the time.)  Mark has shown there is no level too low to which he is willing to bend to screw over a union, thinking there is nothing unions can do about it.  But there are several reasons why employees, screwed over by the Panel just because they are union supporters, can tell Mark and his extremist posse to “bugger off,” “pound sand,” “take a leap,” etc. Continue reading

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ANOTHER REASON TO REDUCE ATTORNEY FEES.

EEOC just declared again that, as outlined in MD-110, an award of attorney’s fees “may be reduced where the quality of representation was poor, the attorney’s conduct resulted in undue delay or obstruction of the process, or where settlement likely could have been reached much earlier but for the attorney’s conduct.” This issue arose in a reasonable accommodation case filed to get the employee one more day of telework a week where the employee’s attorneys said that 16 attorneys and 22 paralegals did work on the case. We would have slashed the fees for that reason alone.  But the agency did not seem to argue such a massive division of labor was reasonable for what otherwise looks like a straight-forward case.  (Remember, although we at Fedsmill strongly support reasonable fees for employee and union attorneys, we have said for a while excessive, absurd demands are going to kill this proverbial golden egg laying goose.) Rather, the Commission upheld reducing the fees because the attorneys’ behavior delayed closure of the case. Agencies are going to jump all over this reason for reducing fees because often the attorney’s behavior is unreasonable.  For example, Continue reading

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