If you follow the NTEU National newsletter you have seen that the delegates at its upcoming August convention are going to consider whether or not the National President should retain the power to decide to organize in the Department of Defense (DOD). Veeeeery interesting! So, we want to think out loud about that for a few minutes. Continue reading
How do unions handle dispute when local reps want to take a case to arbitration and the regional or national reps do not? Well, it turns out there are a variety of ways ranging from the very democratic to the other end of the spectrum. Here are some examples we found around the federal sector. Continue reading
A recent post about two FLRA members declaring the placement of a single letter in the labor law to be so significant as to make clear and unambiguous the answer to three substantial labor law questions has prompted interest in how laws and contracts should be interpreted. The short answer for those asking, “Are any rules?” is that, yes, there are some rules. But they are not “rules” as in the disciplinary rules of conduct, where often one toe over the line means discipline. They are more principles, tenets, guidelines and traditions. Arbitrators and judges have lots of room to apply personal feelings about how the decision should turn out. For example, it is not very hard cite one of the rules as the basis for their conclusion and ignore even more relevant rules. Nonetheless, in the long run anyone arguing a case before an arbitrator, MSPB or FLRA needs to know the rules and apply them as best they can. There is a wonderful, easy to understand, and even free to copy guide to the rules put out by the Congressional Research Service entitled, “Statutory Interpretation: General Principles and Recent Trends.” We recommend it.
J. K. Rowling should be writing this given the elements of wizardry in a recent FLRA decision making it look like it is right out of the Department of Magical Law Enforcement. The Authority confronted an interesting question, namely, should an agency that is excluded from the provisions of the labor law be required to respect the rights that act guarantees to covered employees. When a bargaining unit employee was accused of viewing porn on an agency computer, his employing agency, Hill Air Force Base, sent in the Air Force Office of Special Investigations (AFOSI) to interview him. AFOSI promptly refused to let the employee bring a union rep on the grounds that AFOSI was excluded from the labor law’s obligations. FLRA had to decide whether the employee’s right were violated, and by a 2 to 1 decision it held they were not. AFGE, 68 FLRA 460 (2015) Continue reading
Kodak, Borders, Blockbuster, Lehman Brothers, Circuit City—and the list goes on. Most business schools will tell you now that they have had a chance to examine the corpse of each of those once great companies that they died from leadership suicide. Their top leaders made it very clear to employees that they did not want to hear any bad news, that questioning the status quo was frowned upon, and that candid, reality-based planning for the future was not worth the leadership’s time. That is a lesson that is even more important for top union leaders because of the very fragile state of unionism in this country. We can’t survive much more trauma from the outside. So, the last thing we need is damage from within. The Harvard Business Review people just put out a short, thought-provoking article that union leaders should read entitled, “Make it OK for Employees to Challenge Your Ideas.” We all know it is common that when national union leaders meet with local leaders that everyone likes to hear what the national president is up to and the national president likes to hear what a great job he is doing. If not a great job, at least no accusations, criticisms or tough questions. But every one of those national president-local presidents meetings should devote a large portion of the agenda to one request from the national leadership, “So, tell me what I could do better, what I am missing, and what you need from me.”
Not long ago we pointed out a case where MSPB overturned an employee’s removal from FDIC because the agency failed to get approval from the Office of Government Ethics (OGE) of an FDIC-created rule of conduct. It was titled, “MSPB Recognizes OGE Defense to Disciplinary Actions.” When the Board returned the case to the Regional office judge to conclude, the employer, FDIC, appealed again. Only this time it asked OGE its opinion about whether FDIC needed to get conduct rules it created approved by OGE before applying them to employees. FDIC also changed its rhetoric to boost its chances, calling its rule not a conduct rule but a minimum fitness rule. To our surprise, OGE bought into the FDIC change of labels and declared it did not have to approve a fitness rule in advance. Although the OGE decided to ignore the MSPB’s thinking on the issue, the Board decided that politeness, which lawyers call “comity,” required that it respects OGE’s view—even though OGE trashed MSPB’s view first. The Board adopted the OGE/FDIC argument, reversed its previous decision and upheld the employee’s termination. (See Jonson v FDIC, 2015 MSPB 36 (2015)) maybe now Jonson appeals arguing that FDIC did not follow the regs dealing with minimum fitness or qualification rules and the Board can deal with this a third time. So if you run into the same wording shell game by an agency imposing a new rule for firing employees, contact the local’s lawyer and start pushing back early, e.g., by demanding bargaining before implementation.