Posted on December 12, 2022 by AdminUN

THE FLRA PRECEDENT PENDULUM SWINGS YET AGAIN

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 →

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Posted on December 12, 2022 by AdminUN

HO! HO! HO! DID EEOC JUST IMPROPERLY GIFT $617,436 TO A LAW FIRM?

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 →

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Posted on December 5, 2022 by AdminUN

WHAT TO DO FOR A DEAD GRIEVANT

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 →

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Posted on November 28, 2022 by AdminUN

BEWARE THIS CONTRACT DEADLINE CLAUSE

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 →

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Posted on November 28, 2022 by AdminUN

SHOULD ALL CRAYONS BE COLORLESS?

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 →

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Posted on November 11, 2022 by AdminUN

ON-SITE PRAYER MEETINGS

EEOC just reminded us of the right of employees to demand on-site agency space to hold prayer meetings. A postal employee, who was known to be a Christian asked for some private space during the day to pray alone or with other. Postal Service management said no. They noted that there was a rule in place that barred employees from even talking about religion during the workday.  So, the employee filed a complaint of religious discrimination.  Continue reading →

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Posted on November 11, 2022 by AdminUN

JUST A REMINDER ABOUT RETIREMENT AND TERMINATION

An employee who retires after the agency issues its decision to remove him, but before the effective date of the removal, may still appeal his removal to the Board. Mays v. Department of Transportation, 27 F.3d 1577, 1578-81 (Fed. Cir. 1994). See Howard Sipe, Appellant, v. Dep’t. of Veteran Affairs, Agency. Doc. No. DE-0752-15-0513-I-1 (August 24, 2022) Whether the employee can appeal to arbitration will be determined by the contract language.

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Posted on November 8, 2022 by AdminUN

WHAT CAN BACK PAY AND DAMAGES INCLUDE?

You will be surprised to see what can be included and it all depends on how you draft the grievance. Continue reading →

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Posted on November 8, 2022 by AdminUN

WHY NEGOTIATE OVER MIDTERM AGENCY CHANGES?

Some unions are very aggressive about demanding to bargain over every management-proposed midterm change while others act like these changes are not worth their time—and we never understood the latter group.  Those unions are missing out on numerous employee and union benefits that come with an aggressive mid-term bargaining program.  So, we thought we would take a minute to highlight what those benefits are.  Maybe this will convince some readers to change the way their own union operates. Check out our post entitled “How to Lose Millions for Members” if you doubt us about an unaggressive union losing millions for members.  Continue reading →

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Posted on October 31, 2022 by AdminUN

MSPB, THIS DOES NOT SOUND FAIR

An agency removed a supervisory employee based on the charge of conduct unbecoming a supervisor, supported by two specifications.  But MSPB upheld his removal based on specifications that were never listed in the proposed removal letter. That is a great win for HR Specialists who no longer need do the hard work of formally notifying the employee why it is removing him. All they need write in the future is a description of one or two incidents and then throw in the phrase, “and lots of other times you screwed up.” Here are the details of how MSPB is ignoring employee due process rights just to make HR’s job easier. Continue reading →

Posted in Discipline/Adverse Action | Tagged | 1 Comment