Posted on October 14, 2022 by AdminUN

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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Posted on October 11, 2022 by AdminUN

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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Posted on October 11, 2022 by AdminUN

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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Posted on October 3, 2022 by AdminUN

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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Posted on October 3, 2022 by AdminUN

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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Posted on September 26, 2022 by AdminUN

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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Posted on September 26, 2022 by AdminUN

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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Posted on September 18, 2022 by AdminUN

ON YOUR OWN; WE ARE ON RETREAT

The Fedsmill.com executive board has called a three-weeks long meeting of all officers, staff, international correspondents, imbedded informants, and its nighttime all-Norwegian cleaning crew starting September 19. We will be on Cap-aux-Meules at a retreat house far away from the bustle and distractions of its big cities.  Consequently, we will not be sending e-mail alerts of newly posted stories during that time. But, given that we probably will post to our web site short news pieces about any highly significant cases coming out of FLRA, EEOC, MSPB, FSIP, or OPM while cloistered there, you might want to check Fedsmill.com once a week on your own.

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Posted on September 18, 2022 by AdminUN

UNDERTAKING A HGDG REVERSAL STRATEGY

We are back on the issue of OPM standing in the way of employees receiving back pay for all the time they spend performing higher graded duties. See our recent post entitled, “Money For Higher-Graded Work .“ While we are aware that OPM has now been asked politely to change its advisory opinion barring back pay beyond 120 days a year, we think that unions need to adopt a backup plan as well. Here is our suggestion. Continue reading →

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Posted on September 18, 2022 by AdminUN

PROPS TO THE NLRBPA FOR THIS UNUSUAL GRIEVANCE

We are happy to tip our hat to these union leaders for filing and winning a grievance involving probationary employees. Showing that they know their way around the Code of Federal Regulations, the union challenged management when the agency said that Law Clerk Trainees had to serve a new probationary period once they were converted to permanent Attorneys. The agency took the position the employees had to not only because they were temporary employees as trainees, but also did not hold the “same or similar jobs” as trainees as they would as permanent attorneys. The arbitrator and FLRA agreed that the agency was wrong based on the union’s skilled argument interpreting regulations, and the agency was obligated to credit the employees’ time as trainees toward the two-year probationary period requirement as attorneys.  For details check out NLRB and NLRBPA, 73 FLRA 223 (2022)

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