YOUR SANTOS RIGHT GIVEN RETROACTIVE EFFECT

You might remember our recent post about a new court decision, known as Santos, holding that when an agency fires someone for unacceptable performance it must now prove that the original PIP it put the employee on was justified.  In other words, they must show that the employee was performing unacceptably before the PIP, not just at the conclusion of it.  Well, MSPB just made that news even better.  It ruled last week that… Continue reading

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REINSTATED DESPITE 939 HOURS OF UNSCHEDULED LEAVE IN ONE YEAR

This employee worked only three full pay periods over the course of a year. In all the others, he called in from home or wherever to ask for annual, sick or whatever kind of leave the agency would grant him, including AWOL. The agency put him on leave restriction letters twice during that time and suspended him twice for a total of 17 days without pay for failure to follow proper leave procedures and the suspension notices “clearly state[d], ‘[y]ou are cautioned [that] any repetition of this or similar offenses may result in more severe disciplinary action against you’” for not following leave procedures. Finally, they fired him in June 2016. Most union reps would look at those facts and conclude that the best thing they could do for this guy is get him a clean record if he resigns. But they would be wrong because the MSPB said he should be reinstated. See Christopher M Robinette v. Dep’t. of the Army, MSPB Doc. No. AT-0752-16-0633-I-1 (May 11, 2022) Here is why. Continue reading

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TRUMP’S UNION REMEDIES TURN OUT TO BE AGENCY COLONOSCOPIES

At the urging of several right-wing clans Trump prescribed changes via Executive Orders designed to crush federal sector labor unions’ bargaining power. To those of us who read, it was totally predictable that his orders required agency negotiators to violate the law. They made about as much sense as his Hydroxychloroquine, Ivermectin, and Clorox Chewables recommendations to treat COVID. So, we were not surprised to see yet another arbitrator rule last week that an agency’s five-year effort to negotiate a badly needed new term agreement was worthless and that management had to go back to square one to start the bargaining all over again. The discomfort, if not pain, Trump’s Executive Order remedies are causing agencies like this one now amount to the equivalent of withering organizational colonoscopies. We know of four other arbitrators who have reached the same conclusion in other agencies. Continue reading

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BYE-BYE BWANA JIM; WELCOME MS. GRUNDMANN TO FLRA

Finalllllllllly!  This morning the Senate voted to confirm Susan Tsui Grundmann to take a seat at the FLRA.   STG is one of the most respected, professional, and knowledgeable neutrals in the federal sector community, and will undoubtedly return FLRA to a place where judicial scholarship rules rather than political retribution. Coupled with that wonderful news is the fact that with her being confirmed, Bwana Jim Abbott is out the door. Jim will be forever known as someone who was driven by a sense of tribal justice rather than legal scholarship. He knew he was put in that job to screw over unions and federal employees and he did just that no matter how often a federal circuit court said he was wrong. He rarely let an arbitrator’s award of back pay stand–seeming to take particular delight in taking overtime pay away from those who earned it.  Moreover, he imposed interpretations of the statute that increased rather than decreased the ambiguity of law, which is how a country moves from a government of laws to a government of political appointee biases. Most of all he set a new bar for what it means to be a political hypocrite. Here is a press release from NFFE with more details about the confirmation.

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FREE EEOC WEBINAR MAY 11–REGISTER FAST

EEOC is running a free webinar geared toward union reps as much as anyone else. It is scheduled for 1 pm eastern time on the 11th and will focus on the latest EEOC/EEO developments. If you are interested, move quickly to get one of the slots by registering here

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BIDEN’S THINLY DISGUISED WAGE THEFT PROGRAM

President Biden deserves gobs of credit for rescuing federal employees and their unions from the intense hate the prior administration had focused on them. But let’s not pretend that all is now peachy for feds or their representatives. One particularly ugly smudge on the Biden image is an organized wage theft program he has done nothing about nor even recognized as such, i.e., 5 CFR 335.103(c). Continue reading

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THE AD/HD WORKER’S ADA PROTECTION

In our experience, too many feds do not recognize what physical and mental conditions are protected by federal anti-discrimination statutes. EEOC is letting International Paper, Inc. know that the company violated law when it failed to accommodate the needs of an employee with an Attention Deficit/Hyperactive Disorder. Here is what EEOC had to say about the rights of the AD/HD folks.

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“PROBATIONER” IN LINE FOR 8 YEARS BACK PAY

Why did we put the word probationer in quotes? Because MSPB just issued a decision highlighting that there are times when the agency might consider someone a probationer, but s/he is not. In this case, although the Dep’t. of Interior did not know that, Brandy Branstetter did—and he is now in line for eight years of back pay, health insurance coverage, promotions, step increases, seniority, retirement credit, etc. Here is how Brandy did what most agencies lead their new employees to believe is impossible, i.e., overturn the termination of a probationer. Continue reading

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FREE FLRA TRAINING; SIGN UP FAST

The availability of slots in these training programs is going to go fast.  So, look over the schedule of courses and sign up soon for FLRA-run webinars on Investigatory Interviews, Good Faith Bargaining, Illegal Union Bypasses, Formal Discussions, the Duty of Fair Representation, ULP’s and more.

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BWANA ABBOTT’S SAFARI

One of FLRA’s surviving Trump appointees, Jim Abbott, is the labor law equivalent of the great white hunters of Colonial Africa who ravaged its wildlife and exploited its population just for the fun of it- or maybe it was just to prove their manhood to themselves and others.  In Jim’s case, he is arguably out to kill off any and every legal precedent that grants a benefit to employees or unions. His current safari plans include bagging the legendary Laffey Matrix, protected by long-standing FLRA precedent.    For those of you unfamiliar with this particular species of the federal labor law Serengeti, it is a magnificent beast. It often forces agencies to pay union attorneys up to $919.00 for each hour they spend on an arbitration, ULP, MSPB or EEOC victory, no matter how competent the attorney, how routine their work, or how little their union actually pays them.  Because that almost never exceeds $125.00 an hour, it generates a very nice, non-dues income flow for unions. So, we thought we would share with you how we see Bwana Jim (BJ) stalking his prey despite several legal barriers protecting the Laffey. Continue reading

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