CARTOONS & REASSIGNMENTS

An Immigration and Customs Enforcement employee, the only African-American in her office, found that a co-worker had come into her office and drawn a monkey face on her whiteboard. When she asked management to do something about the harassment, it did.  It transferred her to another location that wound up costing her relocation costs.  She also lost her private office in the move. When she filed an EEO complaint, EEOC stepped in to order her reassigned back to her old office and the person who drew the cartoon moved elsewhere. Continue reading

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WHAT SHOULD A GREAT MID-TERM NEGOTIATIONS TRAINING PROGRAM INCLUDE?

The vast majority of negotiations in the federal sector involve an agency-proposed mid-term change, and in the overwhelming majority of those cases the union representatives are not full-time national staff, but local leaders. Unfortunately, those local leaders are lucky to get between 4 and 8 hours of formal classroom training on bargaining from their union. Consequently, it breaks our heart when we see that time wasted with a poorly constructed training program. There seem to be two types of negotiation training programs out there.  One is designed by big picture folks as more of a survey course and the other by those who know from extensive table experience the nitty gritty skills that actually determine success or failure at the bargaining table.  So, having come out of the former group, we want to  share our thoughts about what a local or mid-term bargaining training program should include. Continue reading

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A LITTLE-KNOWN DEFENSE IN EMPLOYEE THEFT CASES

Although MSPB said they were just drawing on prior court of appeals decisions, it sure looks like a new defense to us. At a minimum, they added enormous clarity to an idea that was only between the lines in those court decisions.  The employee, a DoD GS-14 Security Specialist, paid for his food at the agency cafeteria and then circled back into the buffet area where he added a couple of things to his lunch. Unfortunately, in a rush to adhere to his diabetic eating schedule, he failed to pay for the $5.00 worth of extras, and even more unfortunately for him the agency security cameras caught this heist in detail. When a manager spotted him making his way to his table to eat, the agency fuzz was called in, surrounded him, and forced a confession out of him. A few weeks later he was removed despite his 30-year unblemished career and the reality that the agency was tossing all that training, experience, and skill out the door over a one-time $5.00 debatable theft. It surprised us how he won his MSPB appeal given that the Board may be the last place on earth, under any White House administration, where common sense and compassion rule the day. Continue reading

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LOOK WHO IS SUDDENLY CONCERNED ABOUT AFGE’S ICE EMPLOYEES

After a career of doing her best to keep a knee on the necks of employees and their unions, suddenly FLRA’s Colleen Kiko-Duffy, a Trump disciple, is all torn up inside over how some employees and their union are being treated. This is the same person who spent much of her time late in the last decade overturning just about any arbitration decision that an employee or union won. When she had a few spare moments from that vendetta, she plundered through several of the most established, decades old labor law precedents to reduce or destroy employee and union rights. Deep down she is as honestly concerned about employees and unions as Putin is about Ukraine’s well-being. Here is why she was faking it in a recent decision. Continue reading

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FMLA, DISABILITIES, AND LIGHT DUTY

An employee, Jessie Crutch, had a long-time reasonable accommodation of being allowed to rest his hip for a few minutes every few hours while working as a warehouse custodian.  As the injury got worse and management less tolerant of his need to sit for a few times a day, he started to take time off using his FMLA rights to rest his hip.   When he returned after two days of FMLA leave, his supervisor informed him that he would not be permitted to work again until he either submitted new medical documentation certifying that he no longer needed to rest his hip during the work day or he submitted a formal request for light duty.  So, Crutch went home.  While a sad situation for Crutch, are there any violations of law and regulation here that the union can use to help him? Continue reading

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ASKING THE SPOUSE IS A D.O. DUE PROCESS NO-NO

When a federal firefighter failed a random drug test, he claimed that he must have mistakenly taken one of his mother’s pills given that they live together. The agency decided not to buy that excuse and proposed his termination.  When the employee made the same claim as part of his official reply, the Deciding Official (D.O.) elected to ask his wife, a nurse, whether it was likely someone could confuse the pills the employee was legitimately prescribed for the pill he allegedly took from his mother’s prescribed pills. For good measure, he also asked his brother-in-law, another nurse.  When both said it was most unlikely, the DO upheld the termination. Can you see yet why the federal courts overturned this removal even though the arbitrator of his grievance refused to do so? Continue reading

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EIGHT YEARS OF BACK PAY & AN AGE DISCRIMINATION GUIDE

MSPB just issued what it labelled a precedent-setting decision that will give a former OMB employee eight years of back pay and all the benefits that go along with it. We are delighted for her, but one of the things that stuck out from the MSPB decision was a very well-written description of what is necessary to prove age discrimination in the federal sector. No one expects stewards to be employment lawyers or even to remember all the decisions that have been issued that might be helpful to a member someday. However, you might find it helpful to read through the MSPB guide to proving age discrimination just once to get a sense of what to look for when a member in trouble stops at your desk.   What follows is a verbatim excerpt from the Board’s ruling in Marguerite Pridgen, v. Office of Management and Budget, 2022 MSPB 31 (September 12, 2022) Continue reading

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THIS POOR DHS BRANCH CHIEF

MSPB just upheld the termination of a DHS Branch Chief for unacceptable performance under circumstances that a bargaining unit employee likely would have won. We say that because the agency did not rely on the wording of his critical elements and performance standards to make its case.  Rather, it supplemented those requirements in the PIP by including 11 actions the employee had to complete to avoid termination.  Here is why we think a bargaining unit employee could have won the case.   Continue reading

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EEOC REMINDER ABOUT LEAVE AND REASONABLE ACCOMMODATIONS

Given the increasing number of requests for reasonable accommodations, union reps need to remember the following EEOC precedent: “forcing an employee to take leave when another accommodation would permit an employee to continue working is not an effective accommodation….absent undue hardship, an agency should provide reasonable accommodations that permit an employee to keep working rather than choosing to put the employee on leave.” This issue came up again last month when an employee needed to eat a small snack each time she took some medicine during the day.  The agency told her to just use leave, but EEOC reversed it giving her work time to snack because the agency could not prove that created an undue hardship. Check out Denese G. v. Dep’t of the Treasury, EEOC No. 0120141118 (Dec. 29, 2016) for details.

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MSPB CHANGES SIXTH DOUGLAS FACTOR MEANING

If a union rep cannot undermine the agency’s evidence that the employee committed the alleged infraction, then s/he uses the “Douglas Factors” to argue that even though guilty the employee’s penalty should be mitigated or reduced. MSPB just made it harder to use them successfully. Here’s what the Board did and how unions can adjust. Continue reading

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