BEWARE THIS CONTRACT DEADLINE CLAUSE

Here is one we have not seen before.  An arbitrator sustained a grievance and subsequently awarded the union attorney fees.  However, he did so after four days after the negotiated deadline provision in the parties’ agreement that stated, “[t]he Arbitrator shall render a decision on the Union’s petition for attorney fees within thirty (30) days of receipt of the Agency’s objections . . . .” When the agency filed exceptions to the fee award on the grounds that the arbitrator no longer had jurisdiction after missing the negotiated deadline, FLRA remanded the case to the arbitrator to explain why he thought he still had jurisdiction. From where we are sitting, … Continue reading

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SHOULD ALL CRAYONS BE COLORLESS?

One of my favorite childhood memories was aging up from the standard, pre-school box of 8 crayons to the post-K 24-pack and then finally once I proved myself old enough to be trusted the gigantic 48-count treasure chest. Wow! Those colors powered the artistic dreams of my youth.  So, the very last thing I thought when I flipped the top of those boxes was that I was staring at a potential symbol of our country’s oppression of religious freedom. At least that is what I thought until I read a new EEOC decision. Continue reading

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ON-SITE PRAYER MEETINGS

EEOC just reminded us of the right of employees to demand on-site agency space to hold prayer meetings. A postal employee, who was known to be a Christian asked for some private space during the day to pray alone or with other. Postal Service management said no. They noted that there was a rule in place that barred employees from even talking about religion during the workday.  So, the employee filed a complaint of religious discrimination.  Continue reading

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JUST A REMINDER ABOUT RETIREMENT AND TERMINATION

An employee who retires after the agency issues its decision to remove him, but before the effective date of the removal, may still appeal his removal to the Board. Mays v. Department of Transportation, 27 F.3d 1577, 1578-81 (Fed. Cir. 1994). See Howard Sipe, Appellant, v. Dep’t. of Veteran Affairs, Agency. Doc. No. DE-0752-15-0513-I-1 (August 24, 2022) Whether the employee can appeal to arbitration will be determined by the contract language.

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WHAT CAN BACK PAY AND DAMAGES INCLUDE?

You will be surprised to see what can be included and it all depends on how you draft the grievance. Continue reading

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WHY NEGOTIATE OVER MIDTERM AGENCY CHANGES?

Some unions are very aggressive about demanding to bargain over every management-proposed midterm change while others act like these changes are not worth their time—and we never understood the latter group.  Those unions are missing out on numerous employee and union benefits that come with an aggressive mid-term bargaining program.  So, we thought we would take a minute to highlight what those benefits are.  Maybe this will convince some readers to change the way their own union operates. Check out our post entitled “How to Lose Millions for Members” if you doubt us about an unaggressive union losing millions for members.  Continue reading

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MSPB, THIS DOES NOT SOUND FAIR

An agency removed a supervisory employee based on the charge of conduct unbecoming a supervisor, supported by two specifications.  But MSPB upheld his removal based on specifications that were never listed in the proposed removal letter. That is a great win for HR Specialists who no longer need do the hard work of formally notifying the employee why it is removing him. All they need write in the future is a description of one or two incidents and then throw in the phrase, “and lots of other times you screwed up.” Here are the details of how MSPB is ignoring employee due process rights just to make HR’s job easier. Continue reading

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HOW TO APPEAL “LAST CHANCE AGREEMENT” (LCA) DISMISSALS

The Federal Circuit Court of Appeals just reminded us that while it is possible to challenge, appeal or arbitrate a dispute over whether a last chance agreement permitted the agency to terminate an employee without any opportunity to appeal, the employee must be able to show one of three things, i.e., that

  • s/he complied with the LCA,
  • the agency materially breached the LCA, or
  • s/he did not enter into the LCA knowingly and voluntarily.

For details, check out Ross v. MSPB, No. 2021-2262 (Fed. Cir. Feb. 10, 2022) for an IRS Agent who failed to show any of those.

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WHAT DOES DODEA THINK MISOGENY IS IF NOT THIS?

We have a lot of respect for the top leaders at the DOD Education Activity (DoDEA), but based on a new EEOC decision it looks like they have a lot of work to do with changing organizational values at the lower levels. From where we and EEOC sit, they not only had a school principal who let a co-worker torment women, but the agency’s national ER and counsel staffs jumped in to defend the blatant misogynistic behavior. But we will let you judge for yourself. Here is what the EEOC found to be the facts. Continue reading

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EEOC MANDATES PERFORMANCE AWARD

A supervisory Customs and Border Protection employee was not at work for more than half of the fiscal year due to cancer treatment and surgery. Nonetheless, he felt he was entitled to an annual performance award like his peers. When the agency did not grant it, he filed an EEOC disability discrimination charge.  Surprisingly, agency officials confirmed that the absence for surgery and cancer treatment was the reason that Complainant was denied a cash award.  EEOC decided that CBP violated the Rehabilitation Act because there was direct evidence linking Complainant’s disability and related accommodations to the cash award denial.  Consequently, the employee got his $2,500 award, another $1,00 in damages, and almost $10,000 in attorney fees. He also got an EEOC order that CBP consider disciplining the Post Director. See Darrin F., v. Alejandro N. Mayorkas, Secretary, DHS, CBP, EEOC Appeal No. 2021000554 (2022)

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