WHAT UNIONS ALMOST ALWAYS MISS TARGETING WITH FRIENDLY WHITE HOUSES

History has shown that when there is a union-friendly President in the White House federal sector unions usually want on three things, i.e., 1- new appointees to the FLRA, 2- new appointees to the FSIP, and 3- an order requiring agencies to bargain over 7106(b)(1) subjects.  The first two are inevitable, although they seem to take an unexplainably long period of time. The third one is almost never achieved with unions settling for some sort of vaporous, feel-good, we-will-do-better relationship pact. President Biden, to his credit, has finally ordered bargaining over those topics, although by delaying his appointments to FLRA and FSIP stunted any union permissive topic bargaining clout. But for some reason unions never seem to target a fourth area for change that has as much potential as all the others to improve things, i.e., government-wide regulations, particularly OPM’s. Below is comment on five such regs that union should be working overtime to get OPM to modify. Continue reading

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HERE IS HOW TOUGH EEOC (& UNIONS) CAN BE ON AGENCY PROMOTION RATING SYSTEMS

A State Department employee failed to achieve a passing score on the agency’s promotion rating system. In fact, he failed by a lot, getting only a 67 when 80 points were needed. But EEOC did such a through job of punching holes in the agency’s promotion rating systems that it ordered the employee retroactively promoted. The EEOC analysis is a model for what any union/employee can do to attack a nonsensical agency promotion decision where there are hints of possible discrimination. Continue reading

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EEOC CLAIMS DEMANDING FINGERPRINTS CAN BE RELIGIOUS DISCRIMINATION

Given that all federal employees must sub it to fingerprinting to get their job, and certainly leave their fingerprints all over the workplace every day, we thought you might be interested in this EEOC press release which we reprint verbatim. We have been unable at post time to identify which religion forbids letting others have your fingerprints. EEOC Sues AscensionPoint Recovery Services for Religious Discrimination. MINNEAPOLIS — AscensionPoint Recovery Services, LLC (APRS), a Minnesota-based estate and probate debt recovery company that manages decedent debt recovery for creditors, violated federal law when it fired a Christian employee instead of accommodating his request not to be fingerprinted due to his religion, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. Continue reading

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EEOC SAYS, “LET THAT DOG WORK”

An employee with a heart condition (atrial fibrillation or Afib) obtained a service dog that could alert her to when an attack was coming. Upon being alerted, she could take medication to avoid another stroke.  She had five before getting the dog. When she asked her employer in June for permission to bring the dog to work with her, she only got a runaround back for the next ten months rather than the reasonable accommodation she wanted.  EEOC found the delay intolerable as well as nothing that suggested the dog would interfere with operations. So, it found a violation of law and ordered the agency not only to allow the dog onto its premises but also to pay the employee compensatory damages. We decided to bring this case to your attention to drive home the point that accommodations for the disabled need not just be devices or schedule changes. For details, check out Thersa E., v. Louis DeJoy, Postmaster General, EEOC Appeal No. 0120182764 (2021)

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NEW FLRA DECISION SETS A RECORD FOR BLUNDERS

The Authority just issued DoD, DoDEA, Puerto Rico and Antillies Consolidated Education Association, 72 FLRA 414 (2021) which, along with the related prior Court of Appeals decision and other FLRA decision set the unofficial record for the most blunders in a single FLRA case. Those other decisions are DOD, Domestic Dependent Elementary & Secondary Schools, Fort Buchanan, P.R., 71 FLRA 127 (2019) and Antilles Consol. Educ. Ass’n v. FLRA, 977 F.3d 10 (D.C. Cir. 2020). After a brief summary of the case, we are going to list them for the benefit of negotiators who may be facing similar FLRA screw-ups. Continue reading

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FMLA OFTEN REQUIRES PERFORMANCE STANDARD ADJUSTMENTS

Often an employer must adjust an employee’s performance standards once it approves the employee’s FMLA leave request.  Not long ago a Federal Circuit Court spelled it out for LR practitioners on both sides of the table. Continue reading

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UNION REP TEST #14- Back Pay Entitlement

Many grievances are about getting back pay for employees, which makes it very important that practitioners know what can and cannot be done with back pay. Unfortunately, there are a lot of traps in the Back Pay Act (BPA) that can void an otherwise fair grievance settlement and hurt the covered union members deeply. Read through the hypothetical grievance settlement below and then answer the multiple choice question that follows. You can find the answer to the quiz at the end of this post. Continue reading

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Part 2- GRIEVANCE STRATEGY ISSUES

Now let’s turn to the common labor agreement requirement that the grievance include “the article(s) and section(s) violated.” Again, this sounds simple and very often is, but there are important exceptions. Continue reading

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GRIEVANCE STRATEGY OPTIONS TO CONSIDER  – Part 1

Most labor-management agreements list a few simple items that must be addressed to file a valid grievance, e.g., 1- name of the grievant, 2- agreement article and section violated, 3- date of violation, 4- brief description of the violation, 5- remedy requested, and 6- name and contact number of union rep. So, an inexperienced union rep might think it is therefore easy to draft a grievance, but the experienced rep knows that there are some serious strategy issues to decide under each of those six items.  This is the first in a six-part series that will explain what those strategic issues are. Part I deals with the Name of the Grievant. What is so complex about that you might be asking yourself?  Well, to borrow some famous words from our childhood, “Gather around and you shall hear.” Continue reading

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WILL AGENCY LR ATTORNEYS IGNORE ATTORNEY GENERAL GARLAND

(This was originally posted on Oct. 1, 2019 and which has greater relevance now that the Judge is the Attorney General. The sole addition to the original is in bold italic print in the second paragraph.)

One of the great things an arbitrator can do for a union is award it Laffey Matrix attorney fees for winning a case.  That can mean up to $894.00 for each hour the union attorney put in on the case as opposed to the $75.00 an hour the union actually paid her in salary. In comparison, even the best labor arbitrators only get about $300 an hour for their work. But it now appears that the Laffey Matrix’s application to D.C. area, federal sector arbitrations is coming an end.  That is not just due to the anti-union bile oozing from the Trump FLRA appointees who have proclaimed they are itching to end the use of the Matrix. An actual intellectual and honorable neutral, the polar converse of judges being thinly-veiled political party operatives also has served notice on the Matrix in a recent D.C Circuit court decision. So, this posting primarily is to notify any arbitrator who is thinking of awarding Laffey Matrix fees in an arbitration that his/her award is likely going to be overturned.  Moreover, while FLRA might remand the case for the arbitrator to reconsider the fee issue, it might also just vacate and toss the case into the dust bin never to be reopened again. Our second goal here is to review the obvious options arbitrators have. Continue reading

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