COURT REVERSES FLRA ON CBP OVERTIME CAP

About 20 years ago FLRA ruled that the statutory cap on how much overtime compensation a Customs and Border Protection Officer may receive did not bar paying the employee more than that cap amount pursuant to an arbitration or grievance settlement. But the U.S. Court of Federal Claims just ruled to the contrary in a case two Customs and Border Protection (Border Patrol) Canine Officers hired private lawyers to pursue outside the collective bargaining process. This is terrible news for CBP officers.  See Michael C. Bailey, et al. v. U.S., for the January 2019 decision. Continue reading

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LET‘S OVERTURN FLRA’S NUTTY & ILLEGAL PERMISSIVE BARGAINING PRECEDENT

Back in 1999, the Clinton Administration’s FLRA held that when an agreement expires containing a 7106(b)(1) permissively bargained provision, “A party’s right to terminate unilaterally a permissive bargaining subject is not contingent on first satisfying a bargaining obligation as to the substance, impact or implementation of the change.” (DOJ, FCI and AFGE, 55 FLRA 201 (1999))  For example, suppose a term agreement contains the requirement that, “For safety purposes, no employee will be required to remain in the office working overtime alone after hours.” This FLRA decision holds that the day the agreement expires the agency can notify the union that despite on-going negotiations over a new term agreement, and even the union’s proposal to continue the provision, the agency is immediately terminating the policy and will henceforth require employees to remain in the office alone after hours. AND THERE IS NOT A THING THE UNION CAN DO ABOUT IT! Why?  Because those three Clinton FLRA appointees concluded that “attaching bargaining obligations to termination of permissive bargaining provisions may discourage parties from engaging in bargaining on permissive subjects.” POPPYCOCK, we say, and here is why this decision should be overturned. Continue reading

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CONGRATS FOR AFGE’S AGGRESSIVENESS; BUT BEWARE THIS FILING DEADLINE RULE

We love it when a union decides to take on an unusual issue as AFGE did in its recent win in Dept. of Army, NC and AFGE, Local 1770. The federal sector’s 800 pound gorilla of a union stood up for a member who thought she was being cheated out of a retention incentive payment for the last six years and convinced an arbitrator to award her six years of retroactive incentive pay.  That should amount to more than a year’s pay.  WOW!  But as wonderful as this victory is, readers should not miss the reason why Abbott & Kiko were unable to screw over the employee by overturning the award as is their practice.  Continue reading

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ABBOTT DISPLAYS GROSS BIAS, BUT WHAT ELSE IS NEW

Jimbo Abbott’s anti-union bias is hardly headline news at this point.  He is desperate to get a better job from his political sponsors even if it means leaving a trail of biased decisional chaos behind him. A lot of baseball umpires can figure out what kind of ball a pitcher is going to throw before they throw it thanks to a tell or pattern they pick up. But now imagine that the ump informs the opposing batter before each pitch what it will be. The ump would deserve to be tossed out of the profession for such bias—if not “touched” by a stray fast ball. Well, that is what Abbott did recently. The official case that came before the Authority called for it to simply decide whether an arbitrator’s award of attorney fees was legal.  That is the only issue the agency filed exceptions over, and the three members agreed it was not legal. But that was not good enough for the unprincipled Abbott. Stopping there apparently offended his sense of anti-union contempt.  So, he decided to write a “Concurring Comment” to tell the agency that even though it did not object to another part of the award, he would rule it illegal if the agency had.  Put another way, he advised the agency to inform the union that even though it did not file timely exceptions over the issue, it was now going to refuse to comply with that portion of the arbitrator’s award as well because Jim Abbott, the so-called neutral, had sent it a very strong signal that they will hit a home run if they do. If you are thinking that Jimbo took action to destabilize a local labor relationship where there was no dispute, you would be correct. That is apparently what his political sponsors want him to do. See Dept. of Navy, CA and FPO, 70 FLRA 978 (2018)

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KIKO-ABBOTT ALLIES MOVE TO CRUSH LGBTQ COMMUNITY

Barely a week goes by in Washington without a news story about how the political activists who put Kiko and Abbott on the FLRA are working to crush the rights and dignity of the LGBTQ community.  Most recently, Senator Mike Lee of Utah got headlines for tormenting  the proposed member of the EEOC. The Senator was trying to extract a promise that she will turn her back on the LGBTQ community just like so many of the leaders of that political cult are doing. The cult leaders are trying to reduce “those people” to mere targets to be hit as often as possible.  We can only imagine what Kiko and Abbott do to the poor grievant headed their way with an arbitrator’s back pay award declaring that the supervisor failed to act in a fair, equitable, and non-discriminatory manner in evaluating an employee (and distributing  performance bonuses) based on the employee being transgender. That will be their chance to show their cult that they have as much contempt for those LGBTQ people as anyone else and their support for their President’s effort to make America fabulous again. Once they have taken care of the LBGTQ undesirables, this cult can turn its attention to the next group of people they do not approve of. Maybe Kiko will have some time then to get a leadership post of the cult’s Committee to Grab Whatever We Want ‘Cause They Really Like It.

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EEOC LAYS OUT PATH TO WINNING PROMOTION GRIEVANCES

EEOC just gave union reps a gift that can go on giving for a long time. It explained how to greatly boost the chances of winning grievances for union members passed over for promotion.  Let’s begin with some facts from the case to set the scene.  Gary met with his union steward to complain that Helen and Cedric were selected over him for promotion.  He pointed out that he has ten years’ experience in the job while Helen has one and Cedric two.  Moreover, he has often been asked to train past selectees for the vacant position. Finally, he noted that he was one of five BQ candidates interviewed, which suggests he must have had a pretty high score on the crediting plan.  The union steward told Gary that he would file a grievance alleging violations of the collective bargaining agreement provision requiring the agency to give all BQ candidates “uniform consideration,” and to ensure that all promotions are accomplished in a “systematic, fair and equitable manner.” THAT WOULD BE A BIG MISTAKE IF THAT IS ALL SHE DOES!
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IS THE STATUTE’S DUES WITHHOLDING PROVISION UNCONSTITUTIONAL?

It sure looks that way to an agency negotiator faced with the following union proposal:

SF-1188 dues revocation notices for employees who have had dues allotments in effect for more than one (1) year will be submitted to the payroll office only during pay period fourteen (14) each year. Revocations will become effective during pay period nineteen (19)

Under this proposal an employee must remain a member even if s/he disagrees with the policies, positions, or tactics of the union. For example, suppose an employee joined the union during pay period 15 of 2012, (let’s assume that was August 1, 2012). Then in pay period 16 of 2019, (let’s assume that is August 1, 2019), the union elects a new group of officers locally and/or nationally with whom the member severely disagrees. Maybe it is because of their support for affirmative action, or telework, or abortion, or some bill it is trying to get through Congress, or even a candidate for elected office.  The union proposal above would require her to remain with the union and pay dues until pay period 19 of 2020, (let’s assume that is October 15 2020). A new Supreme Court decision strongly suggest that is unconstitutional.  Continue reading

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UNION ATTORNEY FEES ENTER THE FLRA WOOD CHIPPER

It is common knowledge that about the only thing an agency needs to do to prevail at FLRA these days is file.  Consequently, it is not good news for employee representatives when FLRA decides to take on an issue.  In fact, it is not much different than being stuffed into a highly tuned wood chipper. This past summer Kiko and Abbott lifted the issue of union attorney fees onto the chipper feeder plate and began to push.  They bundled together eight or so decisions from four different arbitrators who had awarded two attorneys millions of dollars in fees and pulverized a long line of precedent to rule that they was not entitled to fees. (DoD, 70 FLRA 718 (2018))  Employee representatives stand to lose millions in income as Kiko & Abbott peddle this precedent throughout the case law. Continue reading

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TALK IS OK, BUT FILING IS NECESSARY

When management does something the union disagrees with, it if fine to try to settle the matter without formally filing a grievance, bargaining demand, ULP, etc. A new FLRA decision, however, makes it crystal clear that all the well-intentioned informal settlement discussions in the world do not change the contractual or statutory deadlines for filing a formal action to protect the union or employee’s official claim.  AFGE, 70 FLRA 973 (2018) If the union files the grievance, arbitration invocation, ULP, bargaining demand, etc. after the official deadline, it has waived its right to pursue the matter.  In fact, if the problem arose over an employee’s claim that s/he is owed back pay, don’t be surprised if the employee files a ULP against the union to force it to give her/him the back pay out of the union treasury. Ignoring a well-known filing deadline seems like “gross negligence” to us, which is the statutory standard for making the union libel for the money the agency owes the employee. We understand the lure of an agency official telling the union rep that s/he “is sure we can work this out without a grievance,” or “needs another two weeks to look into the problem before s/he can be ready to talk.” Grant all the extensions you want, but protect the union by a) asking for an extension to file the grievance or bargaining demand, b) filing the grievance or bargaining demand “only as a technicality,” or c) getting contract language that says whenever parties enter settlement discussions it postpones contract deadlines. Check with a competent union attorney for more ideas. We omitted any reference to ULP filings because parties do not have the power to extend those deadlines no matter how well-intended they are.

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EEOC ORDERS AGENCY TO PAY EMPLOYEE’S INCOME TAXES

The story just above this one reported that EEOC ordered an agency to increase an employee’s back pay check by enough to cover the extra income taxes she would have to pay due to receiving multiple years of income in one tax year. So, we thought we would quote from another new EEOC decision in which it discussed in detail what an employee must show to have his/her extra income taxes paid.  EEOC wrote, . . . Continue reading

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