Posted on March 7, 2023 by AdminUN

HOW TO BEAT A “LACK OF CANDOR” DISCIPLINE CHARGE

MSPB has a long record of terminating employees not just for making outright false statements, but also for failing to volunteer information about an incident that management did not even ask for.  The former is often justified, but the latter has never impressed us as fair. So, we were very surprised to see the employee reinstated in a recent case based on the facts, but we give a “tip of the hat” to MSPB for honorably adhering to the rules of evidence over gut-level conclusions.  The case shows how union reps might be able to save an employee’s job despite the initial superficial stink of the employee’s statements and actions. Continue reading →

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Posted on March 7, 2023 by AdminUN

IRS APPLICANT GETS 11 YEARS BACK PAY, LEAVE, & A JOB

Back in 2012 IRS informed an Africa-American applicant he was conditionally selected for a vacancy and gave him a preemployment background form to complete.  When he noted that he was currently under charges for violations of the law, stating he was “falsely accused of engaging in an attempted sexual assault,” and that his trial was pending IRS withdrew his selection. Once the employee filed an EEO complaint alleging race discrimination, IRS declared that it withdrew the offer because it does not allow applicants with “open” criminal matters to enter on duty, or until case disposition information is received. Almost two years after it withdrew the job offer, all charges against Complainant were dismissed and expunged. Continue reading →

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Posted on February 28, 2023 by AdminUN

THE NEXT STEPS FOR COVID-TRIGGERED EDP/HDP

We have no idea what is going on in the conference rooms of the lawyers who just lost the case that denies most feds the right to extra compensation based on prolonged exposure to COVID pathogens. They are probably wondering if there is any chance to get the Supreme Court to reconsider and overturn the recent Federal Circuit decision. Generally, when 10 judges out of 12 vote against you and no other circuit court disagrees with that decision there is little to no chance the Supremes will take the case. However, no matter how small the chances of overturning this adverse decision, there still is a chance by going somewhere other than the Federal Circuit Court. For example, …  Continue reading →

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Posted on February 28, 2023 by AdminUN

MSPB BURIES RELIGIOUS COVID MASK PROTESTOR

A GS-6 Pharmacy Technician refused to wear a mask around the workplace during the COVID epidemic despite an agency order issued in November 2020. It required that they be worn everywhere on the premises unless the employee was alone in a room and the door was closed. When informed she would not be allowed on the premises any longer unless she wore the mask, she claimed a religious accommodation. Then she just stopped coming to work for several weeks until her claim was resolved.  When the agency rejected her religious objection because there were no accommodations acceptable to both the agency and employee that did not create an undue hardship for the agency, it fired her for her AWOL. Continue reading →

Posted in Discipline/Adverse Action | Tagged | 1 Comment

Posted on February 27, 2023 by AdminUN

BARGAINING I&I OVER SHUTDOWN FURLOUGHS

Although it makes no sense outside the world of “stir-up-the-base-and-its contributions” politics, the odds are increasing that federal employees will have to endure shutdown furloughs once again in the near future. Consequently, if your union has not already addressed that situation in an existing agreement, it is a good time to open negotiations over the potential furloughs using the union’s right to initiate mid-term bargaining. If you do, we suggest you watch the video where an attorney explains how to conduct I&I bargaining over this topic.  The attorney, Raven Hall, had a distinguished career as an negotiator and arbitration attorney with a federal employee union, followed by a tour with a DC law firm and the Teamsters’ General Counsel staff.  She is now in the AFL-CIO General Counsel shop.

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Posted on February 21, 2023 by AdminUN

NO ENVIRONMENTAL DIFFERENTIAL PAY (EDP) FOR COVID EXPOSURE

Not sure why the union chose to take this case to the generally anti-employee Federal Circuit Court rather than to arbitration. Afterall, arbitrators have ordered EDP and the FLRA has upheld those orders. But the Federal Circuit just slammed, nailed, and super glued the door shut on hopes of tens of thousands of feds who had to face inordinate exposure to COVID during its pre-vax days. Continue reading →

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Posted on February 21, 2023 by AdminUN

FLRA’S BIZARRE VALENTINES DAY GIFT

FLRA slipped a bizarre gift under our L-M community pillow on the eve of Valentines’ Day. It held that unions can be obligated to reopen and modify existing term bargaining ground rules agreements in the middle of that bargaining. That struck us as odd given a ground rules agreement has the same status of any agreement. Harry S. Truman Memorial Veterans Hospital, 16 FLRA 944, 945 (1984), and is enforceable as any other agreement DOD, GA and AFGE, 40 FLRA 1211 (1991).  Everything we know about the law confirms that neither party has a statutory obligation to renegotiate until the agreement has concluded, unless a law is enacted conflicting with a portion of it. FLRA offered no reason why it suddenly believes one party can force the other to modify an agreement mid-term. So, let’s see if we can figure out a good reason for this white elephant. Continue reading →

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Posted on February 15, 2023 by AdminUN

FLRA BOOSTS TELEWORK REMEDIES  

Few things are as frustrating as winning a grievance, arbitration or ULP only to find that the sole remedy imposed is an order that management not violate the law or contract again.  FLRA claims that remedies should “restore, so far as possible, the status quo that would have obtained but for the wrongful act,” and that they should be chosen in part as a “deterrence of future violative conduct.”  Even the courts have talked tough about remedies, “An approach to remedies that systematically fails to deter non-compliance, or dilatory compliance, with the Statute’s directives is fundamentally at odds with the Authority’s responsibilities. . .”  Continue reading →

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Posted on February 15, 2023 by AdminUN

GRIEVING NON-SELECTION FOR PROMOTION (Part 1)

Ask a manager if you can grieve non-selection from a BQ list and you are likely to hear that you can’t. Some of them will even quote part of a federal regulation that bars grievances over non-selection from a “group of properly ranked and certified candidates.” (5 CFR 335.103(d))  But, there are ways to get around that, e.g., allege that the list was not properly ranked, certified, or considered.  That may sound like hair-splitting, but it gets the union the right to grieve. There are five ways to do that successfully. Continue reading →

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Posted on February 7, 2023 by AdminUN

A RELIGIOUS WAR IS COMING TO YOUR OFFICE SOON

Later this year it is all but certain that union reps’ lives will be a little more complicated—and maybe a lot more. The Supreme Court is all but certain to substantially increase the pressure on employers to accommodate employee requests to practice their religion.  Under the current Supreme Court precedent, it is almost impossible for an employee to demand a reasonable accommodation that requires a collective bargaining agreement (CBA) provision be waived or ignored so s/he can participate in some religious activity. We expect that this Court will make it a lot easier to insist that bargaining agreements be overridden so employees can participate in religious activity. Here are a few examples of what we expect to see soon after the Court’s new decision which led us to use the war analogy. Continue reading →

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