NEGOTIATING COVID-19 IMPACT ISSUES

Once our President has completed his Clorox Chewables treatments we can expect him to order the feds to head back to the office—if for no other reason than he needs that PR to boost the pressure on governors who insist on listening to scientists about when to reopen. Unions can expect a lot of members to be very unhappy about this, especially where Trump orders them to get on the local roads despite their governor’s orders to continue to shelter. Assuming no federal union figures out how to get a judge to overturn the President’s order because he lacks the authority to override rules about state and local roads, it will be up the union’s negotiators to go to the table to soften the impact on unit employees.  Although we won’t say where we got them from, here are some of the bargaining interests unions are likely to pursue.
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NFFE BECOMES A BENCHMARK UNION

In real estate it is Location, Location, Location. In unions it is Membership, Membership, Membership that is the single most important, quantitative measure of the quality of a union. For years we have shined a spotlight on AFGE which for 18 consecutive years increased its net membership over the previous year. No other federal employee union did that, making AFGE a union against which other unions should measure themselves. But it appears we missed what was happening at NFFE.  Since the end of 2006 NFFE has had a 43% net increase in membership.  Even AFGE only had a 41% growth rate during that time. That is great news for NFFE and moves it onto our list of unions that other organizations should benchmark themselves against.  If your union has not had a long string of consecutive years with significant net membership growth like AFGE or failed to pile up a double-digit overall growth percentage like NFFE and AFGE over the last dozen years, then it is time to examine operations.  Look especially for signs you are still trying to recruit members like we did in the 80’s. If your recruiting program relies solely on flyers, posters, and once a year sign-up tables in the cafeteria, you have a problem—and you have had it for at least a decade. Today, unions must be just as aggressive as Walmart or any other private business scrambling for market share.  For example, if Walmart leaders were running a union it likely would be – Continue reading

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WHY CAN’T PARTIAL TERM AGREEMENTS BE IMPLEMENTED?

FLRA has held section 7114(c) contemplates that a negotiated agreement generally will be treated as an integrated and complete document rather than as a collection of articles and sections. It has pointed to the following words in that section as the basis for that, “the agreement, not a portion thereof,” is subject to agency head. It has even gone so far as to declare that to allow agency heads to review and approve or disapprove partial agreements, absent mutual agreement to allow that, “…would produce chaotic results…,” and listed several practical reasons for that position. Continue reading

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COMPENSATION FOR A LONGER (& ILLEGAL) COMMUTE

In labor relations it is next to impossible to get paid for the time spent commuting to and from work no matter what the violation of law, regulation or contract.  But the EEOC is more flexible on the issue. When a member of the Marshall’s Service was reassigned to another office while his EEO complaint was investigated, WHICH TOOK FOUR YEARS, he charged retaliation and won. EEOC looked at the harm the 62-mile round trip commute did to his personal life and gave him $90,000 to make up for it, along with a reassignment back to his original office. (See Donte v Dept of Justice, EEOC No. 2019005117 (2020)) The lesson for union reps is that it can pay off big when drafting a grievance to allege and pursue even the remote possibility that some violation against an individual is motivated by illegal discrimination, harassment, or retaliation.  Nothing stops a rep from alleging EEO infractions along with violations of contract, regulations, law or past practice.

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FLRA WILL DESTROY LABOR ARBITRATION UNLESS ARBITRATORS DO THIS

In 2017 Trump filled the majority of the seats on the Federal Labor Relations Authority from his stockpile of political operatives who understand the need to crush unions and employee rights to repay their political cult’s benefactors. Once firmly seated, the two Trumpettes started to gut arbitration of federal employee disputes in order to send the message to federal employees that unions can do less and less for them. Given that federal law permits FLRA to review every arbitration decision other than those involve adverse disciplinary actions, namely, actions in excess of a 14 day suspension, the two Trump appointees are in the position to overturn any arbitration decision that goes a union’s way.  And they have done just about that because their decisions cannot be reviewed by a federal court. So, for example, when an arbitrator ordered an agency to grant an employee 12 months of retroactive overtime (about $35,000.00) that he had been denied in violation of the agreement, the Trump appointees decided that was not “reasonably and proportionately related to the violation.” Although there is no record of FLRA using these grounds to overturn an arbitration award in the previous 38 years, these Abbott & Kiko have now used it more than a dozen times. Another one of their favorite grounds for gutting arbitrator awards is to second-guess the arbitrator by ruling that the remedy does not “draw its essence from the agreement.” There is little unions can do right now to try to preserve the validity of the arbitration process, but there are a few things arbitrators can do. For example, . . . Continue reading

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THE ABBOTT-KIKO ARBITRATION OVERTIME SWINDLE

After 40 years of FLRA upholding virtually all arbitrator decisions granting employees retroactive overtime pay for violations of the labor agreement, regulation, past practices or law, the two Trump FLRA appointees have conspired to swindle federal employees out of this money.  They are doing it to weaken the image of unions—and maybe to earn some bigger personal payoff from their political cult’s backers. These two labor law grifters have vacated several arbitrator awards of retroactive overtime pay by pronouncing that the awards do not draw their essences from the agreements, do not reasonably and proportionately relate to the violation, or do create an excessive adverse impact.  Those conclusions are typically supported only by their personal opinions, not citations to precedent, objective benchmarks, nor even reasoned explanations. But looking through these cases, it strikes us that a very important argument is being left out of the briefs, namely, the force of the Back Pay Act (BPA). It is an argument that should be made even though the odds are against Abbott or Kiko being judicially honorable enough to accept it. Continue reading

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WHAT DID THIS UNION DO WRONG?

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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FEDS OVER 40 CATCH A BREAK

The Trump Administration tried to slash federal employee rights to fight age discrimination, but on April 6, 2020 the Supreme Court slapped them down hard. The Trumpetteers wanted to force feds to have to prove that age discrimination was the ONLY reason an agency took an adverse action or denied a fed a benefit.  The Court tossed that view in the dumpster and held that it is illegal discrimination if age played ANY role in the decision.  So, even if an agency can prove that a younger promotion candidate had a quality the over 40 employee did not, the selection would be illegal if age played a lesser role in the selection decision.

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VITALLY IMPORTANT THINGS TO KNOW ABOUT FSIP’S POWERS 

The statute establishing the Panel gives it the power to “take whatever action is necessary” to resolve an impasse. (5 USC 7119) However, often the Panel ignores the fact that there are a lot of limitations on those five words. Some deal with whether the Panel has the power to take jurisdiction at all over a dispute. Other limitations apply to the content of the final order the Panel can issue, and still others address the enforceability of a final order. Because the Panel tends to ignore these limitations, it is up to the harmed party to mount a proper challenge. Here is a quick review of all those limitations.  Continue reading

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ACCOMMODATING THE DISABLED ALMOST EVERY TIME IS NOT GOOD ENOUGH 

Not long ago the Dept. of Defense tried to defend itself against an allegation that it had failed to provide a deaf employee a reasonable accommodation by pointing out that it had done so 11 out of 15 times the employee asked during the period in question. But complying with the law 73% of the time is not a defense, and the EEOC told DOD to figure out how much of a check to give the employee as compensation for the harm done. Continue reading

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