For the umpteenth time we have yet another case where the union’s own incompetence destroyed their ability to win a grievance.  In this case, the agency changed some employees’ working conditions by contracting out their work without notifying the union in advance.  The union responded by filing a grievance alleging a violation of the contract’s Articles 33 and 36 obligations to notify the union before doing so.  When the grievance went before an arbitrator, the union won.  And there you have it, i.e., total unquestionable incompetence by yet another union.  If you do not see the blunder you could turn to this, or this, or this  where we reported similar screw-ups. But if you want a faster answer read on. Continue reading

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When an VA employee asked for a reasonable accommodation, VA management moved the request very efficiently by providing a prompt denial and ending the discussion of the request. Short and sweet, but according to EEOC that was unquestionably illegal.  Law requires that if agency rejects a disabled employee’s initial request for a specific reasonable accommodation, it must interact with the employee to explore alternative accommodations.  As a result, EEOC ordered the agency to pay the employee nearly $37,000 in damages and gave her another $30,000. in attorney fees. If you are involved with a reasonable accommodation request and the agency merely dismisses the request without jointly exploring alternatives with the employee this is a good case to model your appeal upon.  See Diedre A., v. Robert Wilkie, Secretary, Dep’t of Veterans Affairs, EEOC No. 2019001567 (2020). Check out our post entitled, “What is the ‘Interactive Process’” for more details on  the elements of a legally sufficient process.

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The FLRA has said that it “specifically distinguished between contractual back pay recovery periods and contractual time periods for filing grievances.” Consequently, we practitioners had better know the difference, particularly negotiators when we sit down to write a labor agreement.  Here are a few comments that we think will help them the most. Continue reading

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We will never know if the Chief ALJ’s actions hastened this employee’s death, but they sure did not help. A judge in SSA’s Office of Hearing Operations (OHO) in North Charleston, South Carolina had cancer and asked that he be allowed to work at homes on days he did not have hearings scheduled to facilitate his chemo treatment. When the agency denied his request despite a bundle of documentation from the employee’s physician that EEOC ultimately said was adequate, he filed an EEO complaint.  The charge was an improper denial of an ADA reasonable accommodation. 

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You read a lot about employees grieving or challenging removals and suspensions as well as leave and promotion denials.  But it is rare to see a case where the employee knew enough to file charges against an agency for its refusal to send her to training. So, we thought we would let you know about the NRC employee, who was the only woman in her work group, and who challenged the denial of her training requests quite successfully by proving disparate treatment.  Aside from EEOC ordering the agency to pay for her training it must also pay her compensatory damages. If you know of a similar situation where an employee is being denied training that others are getting, check out this case: Lashawna L., v. Kristine L. Svinicki, NRC, EEOC No. 2019002093 (2020). 

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Agencies do not often propose to withhold a Within Grade Increase (WIGI), which is also known as an Acceptable Level of Competence determination (ALOC). But because it is so rare, it is easy for a union rep to make a mistake about when it is time to file a grievance.  FLRA has spoken to this very specifically.  Here is the quiz question: At which of the following steps in the withholding of a within grade process can the union file a grievance?

  1.  When the employee gets a letter proposing to withhold the increase in 60 days of s/he does not improve his/her performance.
  2.  At the end of the 60 days irrespective of whether the employees gets a decision letter.
  3.  When the employee gets the formal decision letter.
  4.  Along with the employee’s request for a formal reconsideration decision.
  5.  When the reconsideration decision is issued by management
  6. At any of the above junctures in the process. Continue reading
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EEOC long ago ruled that it constitutes illegal reprisals for a manager to tell an employee who has filed an EEO complaint that was the “wrong way to go about getting a promotion.” (Binseel v. Dep’t of Army, EEOC No. 05970584 (1998).  So when a manager recently told an employee that he would burn down his house if he pursued an EEO complaint you can imagine how easy it was for EEOC to award that employee money damages and order the agency to consider disciplining the employee. If you hear of statements falling anywhere between these two from managers upset about potential or actual EEO charges there is a way to fix it.  See Jefferey K. v. Louis DeJoy, Postmaster General, EEOC No. 2019003406 (2020).

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FLRA Member Kiko made a point on her bio to mention that in her spare time she works with her church’s women’s group and Member Abbott majored in religion. Yet, these self-promoting theists have no problem making deliberate misstatements, commonly known as lies to those who have adopted the Ten Commandments.  It is as if they are not just channeling President Trump, but also Jim and Tammy Bakker. Their latest fib popped up early in a new decision declaring that they were replacing the de minimis test for determining when an agency must bargain with a “sufficiently significant” impact on conditions of employment standard. They said this was necessary because case law shows that the de minimis test “…triggers an agency’s duty to bargain whenever management has made any decision, no matter how small or trivial….” If true, that might be a good foundational reason for making this change, but it is just not true. Not only has the U.S. Court of Appeals used the de minimis test to deny a union the right to bargain in 446 F.3d 162 (2005), but the Authority itself has used it to deny bargaining multiple times, e.g., 59 FLRA 728 (2004), 59 FLRA 46 (2004), 58 FLRA 363 (2004). We will not bother you with all the times ALJs and arbitrators used it to deny bargaining. So that is lie #1 in their decision. Continue reading

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Here are the facts.  See if you can figure out two things the union did wrong.  The agency had a practice of placing a guard at each of its strategically important locations around its property every shift.  When it suddenly changed that by requiring one staff person to cover two strategic locations per shift rather than one, the union charged management with violating the contract.  The clause at issue read as follows: “The Employer agrees to lower inherent hazards to employees to the lowest level possible without relinquishing its management rights.  A ‘strategic location’ is defined as a self-contained area and can only be safely secured by a single officer.”  The union grievance asked for a return to the prior staffing level and that is what the arbitrator ordered. However, FLRA overturned the award saying that it intruded too heavily on management’s right to assign work.  Have you identified the two errors yet? Continue reading

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UNION REP TEST #10 (Crediting Plans) 

We just read a Dept. of Treasury case where it was ordered to retroactively promote an accountant because the selecting officials on two promotions packages stumbled all over themselves (aka made stuff up) on the witness stand trying to explain how they made their selection decisions. They contradicted the written record, their agency attorney’s position, the agency’s final decision, and themselves. (See Rigoberto A., v. Mnuchin, Dep’t. of the Treasury, EEOC No. 2019003131 (2020).  By the end of the case, the agency had four different explanations on the record for why it did not select the employee.  It is a great example of why a union should get a copy of the agency’s crediting plans that tell ranking panels how to rate applicants whenever grieving non-selection.  Unfortunately, FLRA allows agencies a lot of discretion to keep the plans out of bargaining unit hands.  That means union reps have to be very precise when making a demand for the plan.  See if you can identify which one or ones of the following situations gives the union rep the best chance of getting the plan:  Continue reading

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