Posted on January 18, 2014 by AdminUN

DID MSPB JUST EXPAND USERRA PROTECTION?

We will leave that to those who argue about how many angels can fit on the head of a pin.  As union reps, it is important to know that the Board has apparently held that it violates USERRA for a selecting official to hold one’s military record against him.  The case began when a selecting official passed over a current federal employee applicant, who had been an enlisted sailor, in favor of a non-veteran, for a Dept. of Navy civilian job.  The employee alleged selecting official had said he could not conceive of “…a mere Chief Petty Officer in the U.S. Navy” capable filling the vacant position.  Stated differently, the employee did not allege he was discriminated against because of his service in the military, but because of his rank in the service. Continue reading →

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Posted on January 18, 2014 by AdminUN

AN OPEN LETTER FROM UNION REPRESENTATIVES

Outlined below is a draft of an e-mail message, flyer, posting, etc. that any union could use to remind the average unit employees how much more power union representatives have than employees, private attorneys, or even many managers.  Feel free to copy, improve on it, and use it in your own local to boost the union’s image and attract new members.  You can send it with the contract information for all the reps or have them individually send a version to the employees they represent. Continue reading →

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Posted on January 15, 2014 by AdminUN

MSPB OVERTURNS PROMOTION DEMOTION

What can an employee do when she is demoted because management says it improperly promoted her in violation of regulations?  As if that is not bad enough, what can she do if aside from the demotion the agency also demands that she repay all the money she received because of the improper promotion?  The MSPB has made is quite clear that it will only rarely review an agency action to correct a pay mistake.  However, in this case the employee met the narrow Board criteria for reversing a pay error, where the employee did nothing wrong to cause the pay error. Continue reading →

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Posted on January 15, 2014 by AdminUN

TEST YOURSELF: The Specific Notice Obligation

We have said it often before.  The biggest process mistake management can make while bargaining is to violate this obligation, and aggressive enforcement of this obligation by the union increases its visibility, credibility, and bargaining clout.  Simply stated, the law requires management to give the union “specific notice” of any change in conditions of employment before the agency can implement the change. But there are a lot of subtleties and details union negotiators should know well.  We have posed 10 True-False questions below followed by the answers.  Test yourself to get a sense of how well you know this area of law. Continue reading →

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Posted on January 6, 2014 by AdminUN

HOW TO BLOCK FSIP FROM TAKING JURISDICTION

There are a variety of reasons why a union might want to block FSIP from taking jurisdiction over its bargaining dispute. One way is to piggyback on Interpretation and Guidance, 11 FLRA 626 (1983) wherein the Authority announced that FSIP does not have the power to take jurisdiction over an issue impacted by a pending ULP charge. For example, suppose a union submitted a broad information demand that touched on ten articles involved in a 30-article term agreement dispute. (Or an information demand that impacted ten core proposals in a 30 proposal midterm negotiations)  If the agency refused to comply and the union filed a ULP alleging an improper denial of information, typically a 7116(a)(1) and (5) violation, the union would have grounds to argue that the Panel cannot take jurisdiction over at least the ten articles impacted by the information denial. The FLRA decision explained the reason for that as follows: Continue reading →

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Posted on December 19, 2013 by AdminUN

A RESPONSE TO PATRICK PIZZELLA AND THE BROTHERS

Patrick Pizzella is the newest member of the FLRA, filling the minority party seat. Yesterday, he signed his first decision (AFGE, 67 FLRA 107) and did something quite strange. After agreeing with the other two members on the basic decision, he felt compelled to write a concurring opinion to tell us about himself.  In the process he showed how little he knows and how socially clumsy he can be. Continue reading →

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Posted on December 15, 2013 by AdminUN

MSPB MODIFIES DIRECTED REASSIGNMENT CASE LAW

 Not long ago we posted a story entitled, “Directed Reassignment Case Law Overhauleds ruling and the Board has made issued a clarification.  OPM argued that the MSPB was wrong to state that an agency has to prove that a directed reassignment is “necessary” in order to prevail.  The Board agreed that was a poor choice of words, stating that the agency must prove the “reasons for the reassignment were bona fide” and additionally that its proposal to fire the employee for refusing the reassignment promoted “the efficiency of the service.”  Continue reading →

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Posted on December 15, 2013 by AdminUN

LESBIAN RUMOR COSTS HOMELAND SECURITY $100,000.

When rumors started to spread about a lesbian relationship among three women and favoritism by the manager among them, one of those women complained to agency managers asking them to make the rumors stop.  She soon filed an EEO charge complaining about a hostile work environment, gender and national origin discrimination.  Although the agency told employees in writing to cease and desist, it soon opened an investigation of the three women, asking if they had a sexual relationship and whether they were gay. Not long after the interrogation, Homeland Security (TSA) reassigned one of them from the night shift where she worked with the others to the day shift.  As if that was not enough of a blunder, it alerted the day shift managers that the reassigned employee might be hostile. That led to the EEO charge being amended to include a charge of retaliation.  Here is how that led to a $100,000 payout. Continue reading →

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Posted on December 12, 2013 by AdminUN

LIGHT DUTY DENIALS CAN BE CONSTRUCTIVE SUSPENSIONS

What do you do if an employee’s doctor says she can only return to work if given light duty, the agency refuses to provide any, and as a result the employee takes large amounts of annual, sick and LWOP to lessen the impact of the job on his physical condition?  The first thing you should do is read a new MSPB decision entitled, Kevin Cortez Bean v. U.S. Postal Service, 2013 MSPB 96. Continue reading →

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Posted on December 12, 2013 by AdminUN

FEDSMILL’S PARTICULARIZED NEED FORM

While science’s two-decade long, multi-billion dollar search for the Higgs-Boson particle ended in success (and according to some putting man virtually face-to-face with god), the quest for particularized need has proven more challenging than that for labor-management practitioners..  FLRA has had to issue over 80 decisions in its attempt to explain what it is and the courts have had to weigh in nearly a dozen times. So, we thought we would try to help. Continue reading →

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