The Fedsmill.com executive board has called a three-weeks long meeting of all officers, staff, international correspondents, imbedded informants, and its nighttime all-Norwegian cleaning crew starting September 19. We will be on Cap-aux-Meules at a retreat house far away from the bustle and distractions of its big cities.  Consequently, we will not be sending e-mail alerts of newly posted stories during that time. But, given that we probably will post to our web site short news pieces about any highly significant cases coming out of FLRA, EEOC, MSPB, FSIP, or OPM while cloistered there, you might want to check Fedsmill.com once a week on your own.

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We are back on the issue of OPM standing in the way of employees receiving back pay for all the time they spend performing higher graded duties. See our recent post entitled, “Money For Higher-Graded Work .“ While we are aware that OPM has now been asked politely to change its advisory opinion barring back pay beyond 120 days a year, we think that unions need to adopt a backup plan as well. Here is our suggestion. Continue reading

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We are happy to tip our hat to these union leaders for filing and winning a grievance involving probationary employees. Showing that they know their way around the Code of Federal Regulations, the union challenged management when the agency said that Law Clerk Trainees had to serve a new probationary period once they were converted to permanent Attorneys. The agency took the position the employees had to not only because they were temporary employees as trainees, but also did not hold the “same or similar jobs” as trainees as they would as permanent attorneys. The arbitrator and FLRA agreed that the agency was wrong based on the union’s skilled argument interpreting regulations, and the agency was obligated to credit the employees’ time as trainees toward the two-year probationary period requirement as attorneys.  For details check out NLRB and NLRBPA, 73 FLRA 223 (2022)

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Off the top of our head, we can’t think of an agency that did more to recklessly follow the labor relations advice of the last White House Administration – even though any LR practitioner with an IQ higher than a snow cone knew that their advice was riddled with legal errors. So, it warmed our heart to see the FLRA come down oh-so-hard on the Dep’t. of Education this week for unilaterally implementing a new term agreement back in 2018. FLRA stood behind a very strong remedy statement by the Authority’s Chief ALJ who heard the case.  It should help any other unions in the future who also must deal with an agency unilaterally implementing term agreements. The Cheif ALJ wrote, Continue reading

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To our surprise, both FLRA members decided to interpret the law differently from Chairman Dubester.  The case raised the question of whether an agency’s denial of an employee’s request to repay an overpayment is grievable.  These would be cases where the agency overpaid the employee salary or benefits, e.g., housing allowances, transit subsidies, etc. These issues had always been grievable for decades until President Trump’s two FLRA appointees launched their campaign to make more and more issues not grievable. Given that this new decision involves a grievance over a statutory provision, the union cannot appeal it to court. Consequently, the best course would be for some union to put a term contract proposal on the table and file a negotiability appeal to FLRA when the agency declares it non-negotiable.  If both members of the FLRA continue to oppose Dubester’s reasoning, the union will be able to take the issue to court.  The new case is US Agency for Global Media and AFGE, 73 FLRA 162 (2022).

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FLRA has approved AFGE’s request that it no longer be considered the exclusive representative of Immigration & Citizenship Enforcement (ICE) employees. From all we have heard and read, the ICE employees wanted to break away from AFGE (and the AFL-CIO with which it is affiliated) because those two organizations are not opposing illegal immigration strongly enough for ICE union leaders. Given that we know of other DHS employees represented by AFGE and other unions who have the same complaint about their own unions, we wonder whether ICE employees are merely the vanguard of a movement to form a union focused on fighting illegal immigration. We can think of four other bargaining units, representing more than 50,000 employees, that seem to think fighting illegal immigration should be a major goal for their national union. Continue reading

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One of the more satisfying grievances to win for employees is a claim that they be paid for doing work above their normal salary grade.  Often these are called Higher Graded Duty Grievances (HGDG), and they come with back pay, interest, attorney fees, and more remedies.  But there are a couple of common errors to avoid in drafting a HGDG grievance.  One of them was addressed in an August 31, 2022 FLRA decision. There the union requested a remedy that, based on the employee’s long-time assignment to what it argued was work above his grade level, the employee should receive a permanent promotion going forward. That doomed the grievance from the beginning because… Continue reading

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If an agency does not like a FSIP decision, all it needs do is have the agency head disapprove the agreement. That gives the agency an official platform on which to challenge the legality of what FSIP did. In the meantime, the entire new agreement is put on hold, absent mutual agreement to implement a portion of it. But if a union does not like FSIP-imposed provision, FLRA says it has no way to directly object by getting an FLRA ruling on the legality of the Panel’s action. According to FLRA, the union must refuse to comply with the Panel decision and “hope,” “keep its fingers crossed,” and “pray” that the agency files a ULP against it for doing so.  If the agency chooses not to file a ULP, but to unilaterally implement the new agreement with the agency-favorable provision, the union is caught in a nowhere-to-go trap. We say this because FLRA has repeatedly stated, “Only a party that fails or refuses to comply with a Panel order, and is consequently charged with a ULP, may then challenge the Panel’s order.” (DoD, DoDEA and FEA, 73 FLRA 149 (2022)) If the agency complies, there likely are no grounds to file a ULP (5 USC 7116(a)(6)) against to challenge the legality of the FSIP order.  Continue reading

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UNION REP TEST #20 – Reprisal or Hostile Environment

Read through the following facts to identify whether it is a case of reprisal for EEO activity or a hostile EEO environment. The distinction is a big deal when representing an employee.

A few weeks ago, Natalie reported a manager commented that she earned her promotion by “being on her back” with a male manager, but the Area Manager (AM) told her not to file a report and treated her with hostility afterwards. Natalie tells you, her union rep, that she believes it was because the AM “thought Natalie was being difficult,” by complaining about the offensive comment, and wanting to file a charge or grievance claiming this illegal treatment is based on race, national origin, and age. Natalie went on to mention that at a training, she asked the moderator a question and the AM jumped up and berated her for asking a question. She also recalled that at another training, she and another coworker were in the back row to share a laptop and the AM told them in a hostile manner that she did not want Natalie and the coworker to sit in the back row.  A Management Analyst (MA) friend of Natalie’s corroborated her statement that the AM treated Natalie with hostility after she reported the comment. He noted that the AM frequently interrupted Natalie, behaved in a condescending manner, rolled her eyes when she was speaking, and dismissed her suggestions in group settings by saying “we already tried that,” which he said “gave the impression that Natalie was not viewed as a peer in [their] Management group.” He also confirmed Natalie’s recollection of the incidents at the trainings, noting that at the second training, the AM’s manner was rude and she did not provide any valid instruction related to work or give a reason for why she wanted Complainant to move out of the back row. Continue reading

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One of the criticisms that can be leveled against most unions is that they often file grievances that fail to pursue all the potential remedies an employee is due.  To put it more bluntly, they are letting an agency off too lightly.  As we see it, when agencies get hit with extensive remedy orders they are less likely to fight similar grievances all the way in the future; they start looking for early settlements.  So, we have devoted more than a few lines of print to remedies, e.g., Grievance Strategy Issues (Remedies).  We just came across an EEOC decision which went to great lengths to give the employee all the remedies she was entitled to, and we want to pass along an excerpt of the case so you can see all the corrective actions that are possible and legal when you include an alleged EEO violation in your grievance.  EEOC wrote as follows, but we added the underlining: Continue reading

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