MSPB EXPANDS ACCUSED EMPLOYEE’S RIGHT TO INFORMATION

A Homeland Security Agent was fired for falsifying an official form.  When he tried to defend himself by pointing out how supervisory employees who committed the same offense were not fired, DHS management and the MSPB Judge would not let him see that evidence.  The terminated employee appealed, and got not only the information but another chance to prove his defense. Continue reading

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COVID AND WORKERS’ COMP CLAIMS

Thanks to one of our readers who pointed out that Federal employees can potentially qualify for Workers Compensation based on acquiring COVID.  Check out this web site for details.

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INSIDE THE MIND OF JAMES ABBOTT: MUDDLED OR MALICIOUS

As time goes on it becomes clearer and clearer that it is only on a rare day that James Abbott can be called something as flattering as merely malicious.  Most of the time his contempt for unions and a government run by laws rather than grudge-lugging political appointees are his most prominent feature. We were reminded of that in NLRB and NLRBU, 72 FLRA 80 (2021), a February decision where he issued a dissenting opinion criticizing even his ultra conservative FLRA colleague, Colleen Kiko Duffy. So absurd was Abbott’s view of how the law should operate that it got us wondering whether he is vying for election as Grand Dragon of some local QAnon lodge and that we can soon expect an opinion from him blaming Bill Gates for the Bill of Rights and Hillary for democracy.  In any event, this NLRBU case was about when the filing of a ULP bars a union from also filing a grievance in the future on similar facts and vice versa. Here are the facts in Jimmy’s Abbs own dissenting words. Continue reading

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NEGOTIATING 7106(b)(1) GRADES

We are going to open with the bad news.  FLRA has used the statutory provision of 7103(a)(14)(B) that excludes from the concept of conditions of employment anything “relating to the classification of any position” to pretty much gut the right to negotiate over grades. When AFGE proposed, “There will be six GS-12 Longshore Workers Compensation Claims Examiner Positions (GS-991-12) in the Boston District Office of Workers’ Compensation Programs” FLRA wrote that … Continue reading

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UNION REP TEST #12 (Illegal Bypass and Direct Dealing)

One of the harder things for managers to understand is a union’s “exclusive recognition” rights.  They just do not mean that the union is the only or exclusive organization the agency can deal with to negotiate formal agreements. They also prohibit a lot of other kinds of communications where the manager bypasses the union to deal directly with the employees, which would be a violation of 5 USC 7116(a)((1) and (5). Test your own understanding with these True-False questions.  The answers are at the end of the post. Continue reading

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NEGOTIATING THE 7106(b)(1) “NUMBERS” OF EMPLOYEES     

Biden’s Order requires agencies to negotiate over the “numbers…of employees or positions assigned to any organizational subdivisions, work project or tour of duty.” About the only way to make a numbers proposal non-negotiable is to focus on the total number of employees the agency must employee rather than the number assigned to a component, e.g., tour of duty, work project, etc. Office of Surface Mining, 53 FLRA 427 (1997).  Indeed, it does not matter whether the union demands the agency increase, decrease or maintain the current number of employees; the proposal would still be negotiable. FAA, 60 FLRA 159 (2004)  Consequently, unions can now demand that agencies fill vacant positions, assign two people certain jobs or tasks, or spell out the staffing for a tour of duty, which the FLRA has defined as  the hours of a day (a daily tour of duty) and the days of an administrative workweek (a weekly tour of duty) that constitute an employee’s regularly scheduled administrative workweek. NAGE, Local R5-184, 52 FLRA 1024 (1997).

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8 YEARS OF BACK PAY & CHOICE OF WORK LOCATION

When a few managers at the Greenville North Carolina TSA facility decided to make life miserable for an employee merely because she wanted all the sexual harassment to stop, the employee decided to stand up for herself and push back hard with an EEO complaint aimed at the managers and her co-workers the managers turned against her. When EEOC got a look at the evidence, it not only found prolonged harassment, but it also declared that there was no factual basis for charges management used to terminate her in 2013. So, it awarded her back pay to 2013.  But on top of that because management had unjustly denied her a reassignment to the Santa Barbara, CA TSA location that she was qualified for in 2013, EEOC gave her the choice of picking where she wanted to work if she returned—Greenville or Santa Barbara.  You do not see that often.  For details check out Phyllis F. v. Alejandro n. Mayorkas, DHS, TSA, EEOC No. 0120150799 (2021)

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OPM ADVICE TO AGENCIES ON BARGAINING 7106(b)(1) TOPICS

You will hear more from us on this soon, but check out the new OPM document entitled, “Guidance for Implementation of Executive Order 14003 – Protecting the Federal Workforce,” which gives agency negotiators their marching orders to begin bargaining issues previously negotiable.

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NEGOTIATING OVER 7106(b)(1) “TYPES” OF EMPLOYEES

This post is about unions’ newly bestowed right to negotiate over the “types… of employees or positions assigned to any organizational subdivision, work project or tour of duty.”  FLRA has ruled that the word “types” refers “to distinguishable classes, kinds, groups, or categories of employees or positions that are relevant to the establishment of staffing patterns.” For example, it found Dental Hygienists are different types of employees than Dental Assistants and temporary employees differ from full-time employees. But distinguishing between types of employees is the easy part of drafting a negotiable 7106(b)(1) proposal compared to two traps awaiting the union. Continue reading

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WHERE DO YOU BARGAIN PERMISSIVE ISSUES?

A lot of local unions think that they can approach their local management counterparts and demand to open bargaining over the permissive topics President Biden just made mandatory subjects of bargaining.  NOT TRUE! The statutory right to demand bargaining rests only with the exclusive representative.  So, if your local is in a consolidated unit of several or many local chapters only the head of that consolidated unit can make that demand.  The only way around that is if the agency agrees to bargain multiple contracts below the level of exclusive recognition, which, ironically, is a permissive right it has that the union cannot force it to give up.  See FDA and AFGE Council, 54 FLRA 630 (1998) which says that locals within a larger or consolidated unit only have the right to demand bargaining if delegated that power by the national parties’ agreement. But there are some ways around that. Here are some examples. Continue reading

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