Yes, we have written about this before. But the wins keep on coming for NTEU in its long-term fight overtime with DHS/CBP and this is shaping up to be the biggest back pay case in federal sector history. It may also turn out to be the biggest case of agency non-compliance with FLRA ever. Continue reading
NAGE-SEIU confronted a situation where the agency refused to investigate an employee’s EEO allegation and suspected it was due to some lingering hostility toward the employee for having testified against the agency in a prior EEO dispute. When the union took its claim to an arbitrator, he found the union was correct. Consequently, he awarded the employee $185,000 in compensatory damages for all the harm she suffered as this dispute dragged on for more than a year. The FLRA confirmed that it does not matter if the agency otherwise had cause not to investigate, e.g., perhaps the employee had not properly alleged a civil rights violation. If the refusal to investigate was motivated by retaliation for prior EEO activity, it violates law. (See NAGE, 68 FLRA 916.) Although the decision involved an agency’s act of retaliation, unions also would seemingly be liable if they refused to investigate an employee’s grievance based on hostility for the employee prior involvement with EEOC or FLRA.
Here is how it all started. Two employees filed formal “Behavioral Code of Conduct” reports with their manager alleging that a third employee was harassing them with comments about joining the union and how young they were, calling them jailbait. Soon, thereafter, the manager approached the third employee to tell him about the allegations and to suggest that if the employee moved to a different floor in the hospital the complaints might be settled. The employee refused, but one of the complaining employees moved instead. Did the manager quickly defuse a bad situation or violate the law? Continue reading
About a decade ago, IRS proposed to NTEU that they automate the promotion system. After all, it would save gobs of time managers then spent rating candidates’ paperwork, remove the subjectivity of rating panels, and speed the process up so that promotions could be given earlier. Moreover, automation was the wave of the federal future with vendors offering several different systems, e.g., QuickHire, CareerConnect, etc. NTEU agreed to try it. After all, less subjectivity and faster promotions were great employee benefits. But here is what happened that resulted in probably a thousand IRS employees just getting priority consideration last week with FLRA’s blessing. Continue reading
Another victory on an FLSA grievance is hardly news, but an $80 million dollar back pay check is always something to crow about. NFFE, AFGE and LIUNA spent the summer implementing a settlement with the HHS Indian Health Service to get employees properly paid for overtime hours they worked. The Baltimore firm of Snider and & Co. led the litigation. There was no mention of any of the independent unions representing IHS employees sharing in the deal.
That is a more interesting question than you might think—and worthy of some thought given how important leadership can be. Some unions, like NWSEO and NLRBU demand that a member be an active federal employee to be their National President, while others, such as NTEU, do not require that their top leader ever spend a moment in the shoes of a federal employee–and gives them much lower dues rates if they join and run. Here is a quick overview of the requirements for running each of the unions. Continue reading
As of August 17th, five of the last six FLRA decisions involved NTEU cases, including yet another one dealing with how work hours are set under 5 USC 6101 and 5 CFR 610. While FLRA has over 100 decisions involving the operation of 5 USC 6101 and its companion, the NTEU-Customs and Border Security cases involve the largest potential remedy of all of them—by far. A fair guess is that it will work out to a hefty nine-figure amount due to back pay obligations reaching back to the turn of this century. Of course, all that changes if the agency can find the silver bullet defense argument that defeats the union’s back pay claim—assuming there is one. CBP has not uncovered it yet in any of the more than half-dozen cases it has litigated with NTEU around the issues. It appears to have only one procedural option left, which is an extreme long-shot without the silver bullet defense. Stay tuned as this case unfolds. Perhaps the parties will settle for dimes on the dollar or CBP will start offering reward money for the winning argument that saves it hundreds of millions. P.S. Continue reading
Back in 2012 David Cox won the AFGE National Presidency in a squeaker with 51% of the vote, but a short three years later he roared back into the job last week with 63% of the vote. Given AFGE’s tradition of deciding winners by razor thin margins, it is worth looking at how Cox got such an historically wide support so quickly. Continue reading
With the curtains about to roll back on the annual budget theatrics for us, it is time to think about what role labor law plays in it. The most dreaded response to a budget shortfall from any agency will be a RIF. In all likelihood, no one on either side of that table wants to do that, but those on the agency side will be working against some deadlines to get folks off the rolls. Standing in their way of meeting those deadlines could be one very powerful part of the labor laws, as AFGE demonstrated not long ago. Continue reading
This may come as a shock to lots of folks on the management side of the table, but a promotion applicant is not the best person for the job just because the ranking and selecting officials say so. If the agency does a sloppy job of selecting an employee and the employee/union challenge the selection, it can mean a big bundle of back pay, an even bigger attorney fees award, a bigger-than-both-of-them-combined compensatory damages award, and an order that the managers involved with the selection be disciplined. The prohibition against filing a grievance to challenge a properly ranked and rated promotion certificate does not apply if the employee alleges discrimination and invokes the “plainly superior” doctrine. Given how easy it is for an employee to meet his/her initial burden of proof, we are very surprised that there are not more of these cases. Continue reading