Few things bother us more than arbitration decisions sustaining a grievance only to find that the union did not ask for everything it was entitled to get. So, we like to pass along examples of cases from arbitrators, EEOC, MSPB, FLRA, etc. that contain complete remedies. We hope it will prompt unions to ask for more than a cease and desist order when drafting grievances. Here is a great example case. Continue reading
Not long ago we wrote about how EEOC rejected an employee’s claim of a hostile work environment, but sustained his charge of EEO reprisal based on the same facts. The point of that post was that it is easier to prove reprisal than hostility. A new EEOC decision makes that point again, but based on circumstances that might surprise you. The employee did not have to prove he was passed over for a permanent promotion; it was sufficient to show that the agency failed to give him temporary or acting assignments which would have improved his experience within the Agency and supported a lateral career move. Most unions never even think about challenging how these temporary career-building assignments are passed out. Continue reading
Although the FLRA is once again operating as a neutral and professional labor relations administrator, there will come a time when once again at least two of the three seats will be filled with Presidential appointees selected because of their disgust at, contempt for and ridicule of collective bargaining. When that time comes your union had better have learned from the legal abuses of the 2017-21 era and perfected the way you do business. Otherwise, you are going to get mowed down. At FEDSMILL.com we are keeping a list of things to do now to prepare for those days and one of them is to allege a ULP whenever grieving an alleged agency contract violation. Here is why. Continue reading
How often have you been frustrated trying to find someone in the union who knew the answer to a question? Either you can’t find them or they do not know the answer when you need it. Well, those days are coming to an end thanks to artificial intelligence programs like ChatGPT. Although it has some work to do before it takes our breath away with its expertise, here is an example of what it can already do for federal employee union reps. Continue reading
A good argument can be made that the previous White House staffed the FLRA with appointees eager to punish unions and employees for political purposes. One of their more notorious revenge efforts was aimed at an employee’s right to be temporarily and retroactively promoted to a higher salary grade if s/he did work classified at a higher grade than their permanent grade. (See SBA, 70 FLRA 729 (2018)) In short, the prior FLRA leadership took the right away by inventing criteria that were almost impossible to meet. Their alleged reason was that modern employees must accept that employers need to pay them less than the job legally requires. That always struck us as very similar to the speech the captain of the slave-ship Amistad probably gave his captives. Well,… Continue reading
One of the problems with case law precedent is that it often changes every time a different political party occupies the White House (WH). Last week FLRA swung the precedent pendulum yet again reversing the anti-union, anti-arbitration precedent of the previous administration on the issue of procedural arbitrability objections, i.e., when an agency believes a law or contract provision prevents an arbitrator from even hearing a case, much less deciding it. These are often called interlocutory appeals. Continue reading
The newest bundle of EEOC decisions included a decision with very good news along with some troubling news. When the Postal Service reorganized some years ago, hundreds of employees protected by the Rehabilitation Act thought it discriminated against them based on their disability when they were subjected to: (1) withdrawals of their reasonable accommodations; (2) hostile work environments; and (3) disclosures of confidential medical information. They filed a complaint as a group with EEOC and when it found in their favor, their lawyers asked for $17,215,063.60 in attorney fees. EEOC reduced that claim to $4,803,493.81 due to a lack of evidence proving the lawyers worked the hours they claimed, among other reasons. But it seems to us they were still overpaid because EEOC is refusing to follow the opinion of the federal D.C. Court of Appeals or the pronouncements of the Attorney General. Continue reading
Suppose the union challenges an agency’s termination or demotion of a union member and the employee dies before the case is resolved. Is an arbitrator allowed to issue a decision and if s/he does can the decision be enforced? Recently, a terminated employee died before MSPB resolved his case and the agency argued that the case died along with the employee no matter how illegally it treated the employee or how much back pay he was likely to receive. Given that agencies often argue successfully that arbitrators must follow MSPB precedent, it might help union reps to follow the instructions of a new MSPB decision dealing with this situation. Continue reading
Here is one we have not seen before. An arbitrator sustained a grievance and subsequently awarded the union attorney fees. However, he did so after four days after the negotiated deadline provision in the parties’ agreement that stated, “[t]he Arbitrator shall render a decision on the Union’s petition for attorney fees within thirty (30) days of receipt of the Agency’s objections . . . .” When the agency filed exceptions to the fee award on the grounds that the arbitrator no longer had jurisdiction after missing the negotiated deadline, FLRA remanded the case to the arbitrator to explain why he thought he still had jurisdiction. From where we are sitting, … Continue reading
One of my favorite childhood memories was aging up from the standard, pre-school box of 8 crayons to the post-K 24-pack and then finally once I proved myself old enough to be trusted the gigantic 48-count treasure chest. Wow! Those colors powered the artistic dreams of my youth. So, the very last thing I thought when I flipped the top of those boxes was that I was staring at a potential symbol of our country’s oppression of religious freedom. At least that is what I thought until I read a new EEOC decision. Continue reading