ANOTHER SINKHOLE OPENS UNDER LAFFEY’S USEFULNESS

The D.C Circuit just overturned a District Court decision that held that the Laffey Matrix was not appropriate for reimbursing attorneys in a D.C. discrimination class action case.  The lower court ordered the parties use the U.S. Attorney Office (USAO) matrix, which reimburses at a substantially lower rate. While this may sound like a big victory for those looking to ride the Laffey matrix, it is not because the Circuit Court characterized the Laffey Matrix as appropriate for complex litigation rather than simple litigation. It is our guess that most arbitrations, as well as MSPB and EEOC disputes, are not complex litigation. See DL, ET AL.v. DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION, ET AL., No. 18-7004 (D.C Cir. 2019) Continue reading

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QUIZ: WHEN IS CHARGING LWOP ILLEGAL?

In this case an employee had an auto accident damaging someone else’s private property. After a short investigation, the employee’s supervisor informed her that she could choose between either taking Leave Without Pay (LWOP) or using annual leave until she completed a driving training course. The employee, however, decided to take LWOP until she completed the driving training course, and was placed in a LWOP status from October 28, 2011, through November 3, 2011. What is illegal about that? Continue reading

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HAS FSIP VIOLATED THE LAW ON OFFICIAL TIME?

FSIP has the statutory power to “take whatever action is necessary” to settle a bargaining impasse. (See 5 USC 7119(c)(5)(B)(iii))  But it does not have unlimited power. The rest of that statutory section requires that whatever the Panel does must not be, “…inconsistent with this chapter to resolve the impasse.” The Panel recently cut a union’s official time allotment from about 181,000 hours per year in a 45,000-person unit to 50,000. There is not a thing the union can do to challenge that—unless it can show that decision violated a statutory provision.  But there just might be. Continue reading

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WELCOME BACK, CARTER: FSIP, ICE, & AFGE 

Someone needs to check where Mark Carter, the Chair of the FSIP, went to law school. Given his string of seemingly illegal decisions recently, our best guess is it was at Trump University. His latest blunder popped up in the recent Panel order imposing bargaining ground rules on ICE and AFGE. He and his posse of anti-union puppets ordered that when it comes time to approve or disapprove the ICE-AFGE term agreement that these ground rules should lead to the agency head will be able to disapprove the provisions/he does not like, but then implement all the other provisions.  In other words, the agency head only has to implement the provisions s/he likes. But don’t take our word for it this violates law.  The Authority has repeatedly held that Agency Heads cannot implement only portions of an agreement.  For example, Continue reading

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RESPECT THE ABAYA OR PAY

What is an “abaya?” It is a loose-fitting ankle-length overgarment worn by Muslim women that conceals the outline of the wearer’s body. It is required by their faith, and if an agency refuses to reasonably accommodate an employee or applicant who wishes to wear one, the EEOC has just made it clear it will go after them. It is suing … Continue reading

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QUIZ: WHAT IS WRONG WITH UNION REPS?

Please excuse our frustration, but it very painful to read about cases that unions lost but easily could have won if they drafted the grievance correctly. Union reps need to protect themselves from the twin Trumpian troglodytes at FLRA who will overturn any union arbitration victory they can.  Even though we have written about this before several times, apparently the message is not getting through to everyone.  So, we are going to try it as a quiz.  The facts of the case are as follows and the correct answer is at the end of this post. Continue reading

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SSA & AFGE: FSIP BIGOTRY GONE WILD

You can almost always rely on zealots to overreach.  In fact, it is their greatest weakness and typically exposes a core bigotry. The new SSA-AFGE Panel decision is a great example of that. The Panel cut the union’s yearly bank of official time from 250,000 hours to 50,000 without any serious basis in evidence, e.g., how many grievances were filed, negotiations held, formal meetings scheduled, investigatory interviews booked, etc.  But to add insult to this injury it also required that any time union reps spend representing employees in the EEO process must be charged to that bank of time for collective bargaining activity. And that is where these seven anti-union bigots may just have revealed who they actually are and crossed a line rendering their entire order unenforceable. Continue reading

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SSA & AFGE: PITY THE POOR PANEL ZEALOTS

Zealots can be at their most dangerous when they actually know something about law and regulation.  When they don’t, they just look foolish and wind up hurting the people they want to reward.  For example, in late May the FSIP issued a decision in a term contract dispute between SSA and AFGE.  The first issue it addressed was the agency’s demand to “terminate all 1, 046 (approximate) existing memorandums of understanding (MOUs) and other supplemental agreements.”  With what we can only imagine was ideological drool running down their faces, the seven Panel members leapt to adopt the agency’s demand saying that terminating those documents will create “one guide for all interested parties.”  That guide is the new collective bargaining agreement. But had they taken the time to know the law that they help administer, here is what they would have run into. Continue reading

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THE LIMITS OF BACK PAY ORDERS

Dear Fedsmill,

I just saw the Authority’s May 22, 2019 decision in which it chose not to enforce a 2017 FSIP final order.  That order required an agency to implement a salary increase retroactive to 2015 as part of its new term agreement. I am shocked.  Doesn’t the law say that FSIP has the power to “take whatever action is necessary” to resolve an impasse? (5 USC 7119(c)(5)(B)(iii)). If this decision holds up, how should we respond to it?

/s/ Colleen DeBurg 

Dear Colleen:

Rather than focus just on the Panel’s ability to set salaries, which only a few unions bargain over, let’s assume the Panel did the same thing with a transit subsidy dispute. For example, imagine that in May 2019 FSIP increased the subsidy the agency was to pay and made its order 24 months retroactive. Lots of unions bargain those subsidies. Continue reading

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FLRA SMACKS DOWN FSIP ON “TENTATIVELY AGREED” ISSUES

On May 22, the Authority told FSIP that it does not have the power to order the parties to implement those issues tentatively agreed before they came to the Panel to settle their unagreed issues.  The Panel has occasionally ordered the parties as part of the FSIP decision on the unagreed issues to implement all the previous tentative agreements along with the provisions it has ordered. The Authority noted that even though the statute says the Panel can “take whatever action is necessary,” that power is limited to the parties unagreed or impassed issues.  In a simple world the parties lump their tentatively agreed articles with those newly settled by the Panel, send the bundle forward for agency head review, and implement the new deal about 30 days later.  But the world can get complex and we want to talk about what this new decision means for actual practitioners. Brace yourself, it gets messy. Continue reading

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