EMPLOYEE AWARDED TELEWORK AND $30,000.00 

An arbitrator found that the agency violated the Rehabilitation Act and the agreement by denying the grievant a reasonable accommodation. As remedy, he directed the agency to grant the grievant a telework schedule, and awarded $30,000 in compensatory damages for the Rehabilitation Act violation. The FLRA upheld the award by dismissing two agency claims,i.e.,  1) the arbitrator didn’t account for the grievant’s partial responsibility for delaying the interactive process; and 2) the amount of compensatory damages didn’t account for the time during which the grievant was responsible for delays in the process. The FLRA explained that under the Rehabilitation Act, failing to make a good-faith effort to accommodate a qualified, disabled employee exposes an agency to liability for compensatory damages. AND THAT IS WHY A GRIEVANCE SHOULD NOT ONLY ALLEGE A CONTRACT VIOLATION, BUT ALSO AN EEO VIOLATION. Without the EEO allegation the employee would not have been entitled to the $30,000.00 in compensatory damages.  for more details, check out DoD, DLA and AFGE, local 1992, 71 FLRA 729 (2020) 

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YOUR BOSS WANTS YOU BACK IN THE OFFICE — AN EMPLOYMENT LAW EXPERT EXPLAINS YOUR RIGHTS

We are passing along an article from MarketWatch that has ideas to help employees who do not want to be ordered back into the workplace.  While it is advice for private sector employees and their union, most of the ideas apply in the federal sector as well. This is an issue unions had better bone up on because it will dominate the next couple of months.

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UPDATE: BAR CHARGES FILED

Just thought we would let you know that charges were filed against Kiko and Abbott, Trump’s political operatives at the FLRA over their very deliberate and deceptive misrepresentation of a Supreme Court decision.  We fully support the idea because what they did may be the most reprehensible act of any FLRA members, which includes a long string of anti-union zealots.  We will keep you posted on what happens next to the extent we know.  Of course, the bar associations to which they belong may decide not to address the facts, find them innocent, or decide that substantively changing the words of a Supreme Court precedent to mislead the thousands of non-lawyers who fell in line with the now disgraced FLRA decision is not a big deal. But wouldn’t it be swell if someone in this Administration is held accountable for malicious behavior? For more background on this check out this Fedsmill.com posting: https://fedsmill.com/barcharge7565-2#more-7565

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WHAT UNION REPS CAN DO THAT EMPLOYEES CAN’T

All employees do not have equal legal rights.  Union representatives have far more rights than most.  In fact, they have far more rights than the average manager. So, if you hear anyone asking the question, “What Can the Union Do for Me?” here is just a short list of the powers a union rep can put to work for employees the minute a union is certified in an election. Continue reading

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REFORMING THE LABOR-MANAGEMENT STATUTE, NOT “FUTURATING” IT (Changes 1 – 3) 

Someday in the future fairness, reason, civil rights, and professional neutrality will once again be the values driving White House (WH) decisions as opposed to vengeance, greed, racism, and bullying.  And when that day comes, federal sector unions had better be prepared to not only push for labor law changes, but push in the right direction. Sadly, if history is any guide, even a Trumpless WH will try to co-opt labor by dangling some shiny new labor-management scheme that it promises will deliver employees and their unions to the bountiful gardens of LMR nirvana, e.g., partnership, forums, pre-decisional involvement, etc. Some 22-year old campaign worker recently elevated to shaping White House labor policy—but who never belonged to a union or represented employees– will probably coin an expression like “Futurating Our Workplace” as part of its marketing plan.  We have seen unions fall for this mindless WH drivel repeatedly in the last 30 years, and we are watching labor pay a horrible price for it now. If unions are to have any chance of resisting a useless WH offering, they need to begin working now on a plan that has them all committed to demanding nothing less than bolstering traditional collective bargaining. They cannot afford to settle again for a hollow LR tweak, getting invited to lame White House parties, and having the personal cell phone numbers of people who work there. While those things might be important to a union’s legislative staff, they are just cheap, shameful bribes that keep the union’s collective bargaining program weak and vulnerable.  So, we thought we would get the discussion going now by listing the changes labor must insist be adopted one way or the other.  Today’s post addresses three of about a dozen changes needed that we will focus on in the coming weeks.  Continue reading

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SHOULD BAR CHARGES BE FILED AGAINST ABBOTT & KIKO?

Lawyers like Jim Abbott and Colleen Kiko, Trump’s appointees to the FLRA, take a bar association oath to live by a higher than normal ethical standards.  They swear not to deceive, misrepresent, or commit a fraud, among other things. Lawyers have been tossed out of  bar associations just for making false statements on driver license applications.  Yet, back in 2018 these two self-proclaimed legal purists, decided to manipulate the wording of a Supreme Court decision they quoted in a FLRA ruling they wrote.  The decision was to reduce the right of unions to negotiate over mid-term changes.  How?  Well, imagine if somewhere on his trip down Mount Sinai Moses stopped to modify the ten commandments by using an ellipsis (those three dots that signal something has been omitted …) to delete just a word or two.  If he used the ellipsis the way Abbott and Kiko did we could now be living under the following commandments, “Thou shalt …commit adultery,” “Thou shalt … steal” and “Thou shalt … kill.”  The Abbott and Kiko ellipsis did not just slightly alter the meaning of the High Court’s decision; it altered it 180 degrees to support precisely the point these two thugs were trying to make. The question is whether practitioners should just give these two a pass or pursue the matter to the point where they may lose their law licenses.  Here is the logic of the draft charges we have seen. Continue reading

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UNION REP TEST #8  (Part 1) – Prohibited Personnel Practices (PPPs)

Although union reps are much more likely to encounter agency actions violating provisions of a labor agreement or federal regulations, there are situations where one of these 14 statutory prohibitions arises.  So, it helps to have at least a passing understanding of them. The 14 individual PPPs are listed below followed by a factual situation.  See if you can figure out if the PPP has been violated in the noted situation or not.  The answer follows each situation. Continue reading

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TAXES ON SICK LEAVE DONATIONS

The bloggers at “Benefits Law Advisor” just posted some information from IRS entitled, “IRS Provides Guidance On Employer Leave-Based Donation Programs That Aid Victims Of The COVID-19 Pandemic.” Check it out.  It is short and helpful

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“CONDITIONS OF EMPLOYMENT” (CoE) V. “WORKING CONDITIONS (WC).” WHY BOTHER?

When first we read AFGE and DHS, CBP, 70 FLRA 501 (2018) we were left wondering why Abbott and Kiko were trying so hard to justify another exception to a union’s right to bargain over midterm changes.  You may remember that case held unions only had the right to bargain before the change was implemented if it changed CoE, but not if it only changed WC. This was so important that the two Trumpettes opened themselves to bar charges by deceitfully manipulating a quote to make it seem as if the High Court agreed with their view—when in reality the Court held precisely the opposite according to a unanimous decision of three federal appellate judges.  That is a lot to risk when what Abbott and Kiko were trying to do looked like it could already be accomplished by an agency claiming the change was de minimis. There is 16 years of case law holding that is a legitimate exception to the right to bargain and providing practitioners solid examples and criteria for applying the exception.  But then it came to us what all this deceit and obfuscation was really about? Continue reading

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A NEGOTIATOR’S CASE STUDY

Just passing along a tip to other lifetime union negotiators.  Check out “Will There Be a 2020 Season” from yahoo.com. It tells an interesting tale of how the professional baseball players have boxed in the owners with potential ULP claims despite the owners’ greater wealth and bargaining power. Fed unions can do the same if they know the case law.

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