WHAT ARE YOU DOING WITH YOUR NEW SANTOS RIGHT?

Almost a year ago the Federal Court of Appeals, in a case known as Santos v. NASA, made it just a little bit harder to fire federal employees for poor performance. It reversed a long-time precedent by declaring henceforth management will need to prove by substantial evidence that an employee was performing unacceptably BEFORE it puts him/her on a PIP.  Prior to this, an employee could be put on PIP for any reason—or no reason at all—because management was not required to prove a thing. While the court’s decision is a welcomed contribution to employee protections, it will mean little unless unions think creatively about how to use it. For example, …  Continue reading

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MASKS, FACIAL HAIR, QUAL STANDARDS, AND AFRICAN-AMERICAN EMPLOYEES

EEOC just issued a new decision involving African-American employees and qualification standards. It is a familiar story about the difficulty those employees often have when required to be clean shaven in case a need arises to wear tight seal face masks, e.g., Pseudofolliculitis Barbae. The agency removed ten of them from their police officer positions in 2010 because of their inability to shave close enough to meet the agency qual standard. They filed a discrimination complaint, forcing EEOC to address the conditions under which it will find a qual standard discriminatory.  Continue reading

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COURT HAMMERS TOP ARBITRATOR; SETS NEW ARBITRATION STANDARDS

Joseph Sharnoff is one of the top labor arbitrators in the country, but that meant nothing to the Federal Circuit Court of Appeals when it reviewed his decision in an adverse action case. The result seems to be a new set of standards arbitrators must meet when they deal with similar cases.  Here is a quick view of the court’s criticisms in Binta M. Robinson v. U.S Patent and Trademark Office, (Fed. Cir., 12/21/2021) Continue reading

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EEOC GRANTS $75,000 FOR WORKPLACE FOOD ALLERGIES HARASSMENT

The employee worked in a large, open-space area surrounded by dozens of other employees when she developed allergies to spicy foods, e.g. pepper, Szechuan peppercorn, ginger, especially those made with oils. She brought in a MD’s note outlining the need for her to avoid contact with those contaminants lest she develop immediate problems swallowing and breathing as well as shock. Management responded by asking the employee’s fellow team members to eat pungent foods in a separate area away from the team workspace and that spicy food products had to be kept in air-tight, covered containers in the workspace. However, as time progressed, management stopped enforcing that request and refused to even inform employees of the issue—leaving it to the allergic employee to do so.  Moreover, it took no action when co-workers ignored the problem. All this earned her the nickname “allergy lady” and the agency an EEO complaint, which could have been just as easily raised as a grievance. Continue reading

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YES, VIRGINIA, COVID 19 CAN BE A DISABILITY

If you are representing a member looking for more flexibility to deal with COVID problems than the agency is allowing, check out this post with the same title as this post from a law firm known for its employment law expertise. Raising the disability issue opens the door to mandatory reasonable accommodations.

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PROVING PERFORMANCE APPRAISAL DISCRIMINATION

Want to boost your chances of winning a performance appraisal grievance? Check out Maria D. v. Merrick B. Garland, Attorney General, DoJ (FBP), EEOC No. 2021001182 (2021) Maria could have settled for filing a grievance simply alleging that portions of the contract’s performance appraisal article were violated, e.g., failure to provide a systematic, fair and equitable rating. But she boosted her chances not just of winning an appraisal upgrade, but also much stronger penalties on the agency by alleging that her appraisal violated civil rights laws and regulations. She claimed the agency gave some of her male co-workers a much higher appraisal rating without there being any legitimate difference between her performance and theirs. Here is how EEOC concluded there was discrimination—and a roadmap for you to prove the same thing if you or a member face similar facts. Continue reading

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IMPASSE CRACKERS

What’s an impasse cracker?  It is one of those tactics seasoned negotiators pull out when bargaining seems hopelessly deadlocked to create an agreement.  FEDSMILL.com has listed some of our favorites for you to consider and use. Continue reading

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“IT’S ALIVE!”  NOT FRANKENSTEIN’S MONSTER, BUT FSIP

After months of deconstructing the existing hideous monster that plundered the L-M communities far and wide, President Biden has finished scouring the countryside for new parts, stitched them together, and sent his own creature out into the countryside.  On November 10, 2021 it showed what it intends to do with the mere L-M mortal peasants, known as the parties, and the news is neither good or bad. It is NEUTRAL and that is precisely what the two sides of the bargaining table have needed to put an end to the endless surprise attacks, litigation gymnastics, evasions, revenge, and senselessness that characterized too many L-M relationships during what we like to call the Orange Years (2017-2020). This first FSIP decision under the new Administration can be found at DoD, Texas and AFGE, Local 1004, 2021 FSIP 013 (2021). Below is a recap of the three most significant parts of the decision that all negotiators should know about. Continue reading

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IS YOUR NATIONAL UNION REP A TYPE A OR TYPE J REP?

Among the things you notice over a 40-year career working with unions is that not all national union reps are the same. In fact, they can differ greatly in how they approach the job, and that can have a major impact on how the locals they work with grow—or not. There is not much a local can do about the rep assigned to work with it given that national or regional elected officials usually have total control over staff assignments. But it should help to know what the differences or range of differences are. Consequently, we are going to describe and dissect two types of reps who are polar opposites of one another, occupying different ends of a spectrum. Continue reading

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FLRA ADDRESSES HOW SPECIFIC A GRIEVANCE MUST BE TO SURVIVE

Not long ago FEDSMILL posted a piece entitled, “Grievance Strategy Issues- Part 4” which examined how specific a grievance must be to avoid several traps that can destroy an otherwise valid allegation.  FLRA just added its own view on this in a decision entitled AFGE, local 1741 and DOJ, FBP, Michigan, 72 FLRA 501 (2021).  Unions had better rethink how specific their grievances are because you can bet the mortgage that agencies are going to start pounding them with this new decision to gut grievances no matter what the past practice is. Continue reading

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