Posted on September 12, 2022 by AdminUN

WHOPPER OF A REMEDY AGAINST INFAMOUS AGENCY

Off the top of our head, we can’t think of an agency that did more to recklessly follow the labor relations advice of the last White House Administration – even though any LR practitioner with an IQ higher than a snow cone knew that their advice was riddled with legal errors. So, it warmed our heart to see the FLRA come down oh-so-hard on the Dep’t. of Education this week for unilaterally implementing a new term agreement back in 2018. FLRA stood behind a very strong remedy statement by the Authority’s Chief ALJ who heard the case.  It should help any other unions in the future who also must deal with an agency unilaterally implementing term agreements. The Cheif ALJ wrote, Continue reading →

Posted in Bargaining Law, Remedies | Tagged | 1 Comment

Posted on September 12, 2022 by AdminUN

GRIEVING THE DENIAL OF A DEBT COLLECTION WAIVER

To our surprise, both FLRA members decided to interpret the law differently from Chairman Dubester.  The case raised the question of whether an agency’s denial of an employee’s request to repay an overpayment is grievable.  These would be cases where the agency overpaid the employee salary or benefits, e.g., housing allowances, transit subsidies, etc. These issues had always been grievable for decades until President Trump’s two FLRA appointees launched their campaign to make more and more issues not grievable. Given that this new decision involves a grievance over a statutory provision, the union cannot appeal it to court. Consequently, the best course would be for some union to put a term contract proposal on the table and file a negotiability appeal to FLRA when the agency declares it non-negotiable.  If both members of the FLRA continue to oppose Dubester’s reasoning, the union will be able to take the issue to court.  The new case is US Agency for Global Media and AFGE, 73 FLRA 162 (2022).

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Posted on September 12, 2022 by AdminUN

IS ICE JUST THE BEGINNING OF A SOLELY DHS FOCUSED UNION?

FLRA has approved AFGE’s request that it no longer be considered the exclusive representative of Immigration & Citizenship Enforcement (ICE) employees. From all we have heard and read, the ICE employees wanted to break away from AFGE (and the AFL-CIO with which it is affiliated) because those two organizations are not opposing illegal immigration strongly enough for ICE union leaders. Given that we know of other DHS employees represented by AFGE and other unions who have the same complaint about their own unions, we wonder whether ICE employees are merely the vanguard of a movement to form a union focused on fighting illegal immigration. We can think of four other bargaining units, representing more than 50,000 employees, that seem to think fighting illegal immigration should be a major goal for their national union. Continue reading →

Posted in AFGE | Tagged | 2 Comments

Posted on September 6, 2022 by AdminUN

DON’T MAKE THIS HGDG GRIEVANCE MISTAKE

One of the more satisfying grievances to win for employees is a claim that they be paid for doing work above their normal salary grade.  Often these are called Higher Graded Duty Grievances (HGDG), and they come with back pay, interest, attorney fees, and more remedies.  But there are a couple of common errors to avoid in drafting a HGDG grievance.  One of them was addressed in an August 31, 2022 FLRA decision. There the union requested a remedy that, based on the employee’s long-time assignment to what it argued was work above his grade level, the employee should receive a permanent promotion going forward. That doomed the grievance from the beginning because… Continue reading →

Posted in Back Pay, Grievance/Arbitration, Higher Graded Details | Tagged | Leave a comment

Posted on September 6, 2022 by AdminUN

FLRA FORCES UNIONS TO WEAPONIZE RATIFICATION VOTES

If an agency does not like a FSIP decision, all it needs do is have the agency head disapprove the agreement. That gives the agency an official platform on which to challenge the legality of what FSIP did. In the meantime, the entire new agreement is put on hold, absent mutual agreement to implement a portion of it. But if a union does not like FSIP-imposed provision, FLRA says it has no way to directly object by getting an FLRA ruling on the legality of the Panel’s action. According to FLRA, the union must refuse to comply with the Panel decision and “hope,” “keep its fingers crossed,” and “pray” that the agency files a ULP against it for doing so.  If the agency chooses not to file a ULP, but to unilaterally implement the new agreement with the agency-favorable provision, the union is caught in a nowhere-to-go trap. We say this because FLRA has repeatedly stated, “Only a party that fails or refuses to comply with a Panel order, and is consequently charged with a ULP, may then challenge the Panel’s order.” (DoD, DoDEA and FEA, 73 FLRA 149 (2022)) If the agency complies, there likely are no grounds to file a ULP (5 USC 7116(a)(6)) against to challenge the legality of the FSIP order.  Continue reading →

Posted in FSIP | Tagged | 3 Comments

Posted on August 29, 2022 by AdminUN

UNION REP TEST #20 – (Reprisal or Hostile Environment)

Read through the following facts to identify whether it is a case of reprisal for EEO activity or a hostile EEO environment. The distinction is a big deal when representing an employee.

A few weeks ago, Natalie reported a manager commented that she earned her promotion by “being on her back” with a male manager, but the Area Manager (AM) told her not to file a report and treated her with hostility afterwards. Natalie tells you, her union rep, that she believes it was because the AM “thought Natalie was being difficult,” by complaining about the offensive comment, and wanting to file a charge or grievance claiming this illegal treatment is based on race, national origin, and age. Natalie went on to mention that at a training, she asked the moderator a question and the AM jumped up and berated her for asking a question. She also recalled that at another training, she and another coworker were in the back row to share a laptop and the AM told them in a hostile manner that she did not want Natalie and the coworker to sit in the back row.  A Management Analyst (MA) friend of Natalie’s corroborated her statement that the AM treated Natalie with hostility after she reported the comment. He noted that the AM frequently interrupted Natalie, behaved in a condescending manner, rolled her eyes when she was speaking, and dismissed her suggestions in group settings by saying “we already tried that,” which he said “gave the impression that Natalie was not viewed as a peer in [their] Management group.” He also confirmed Natalie’s recollection of the incidents at the trainings, noting that at the second training, the AM’s manner was rude and she did not provide any valid instruction related to work or give a reason for why she wanted Complainant to move out of the back row. Continue reading →

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Posted on August 29, 2022 by AdminUN

CREATIVE GRIEVANCE REMEDIES

One of the criticisms that can be leveled against most unions is that they often file grievances that fail to pursue all the potential remedies an employee is due.  To put it more bluntly, they are letting an agency off too lightly.  As we see it, when agencies get hit with extensive remedy orders they are less likely to fight similar grievances all the way in the future; they start looking for early settlements.  So, we have devoted more than a few lines of print to remedies, e.g., Grievance Strategy Issues (Remedies).  We just came across an EEOC decision which went to great lengths to give the employee all the remedies she was entitled to, and we want to pass along an excerpt of the case so you can see all the corrective actions that are possible and legal when you include an alleged EEO violation in your grievance.  EEOC wrote as follows, but we added the underlining: Continue reading →

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Posted on August 23, 2022 by AdminUN

HOW TO STOP RAMPANT SELECTING OFFICIAL INCOMPETENCE

Thanks to the managements’ rights provision of the labor law, federal selecting officials think they have something akin to Papal infallibility when they decide who should be selected for promotion. Afterall, the law says that employees cannot grieve a selecting official’s decision so long as s/he is working off a properly rated and ranked best qualified (BQ) list. But what is not said is that employees can challenge the selection if the official violated law or government-wide regulation despite the BQ list being properly ranked and certified. And given how reckless many selecting officials are, unions should rarely pass up the opportunity to do so—as a new EEOC decision out of SSA shows. That selecting official passed over a candidate eligible for selection to choose two other employees who were members of a different race and gender. BINGO! GOTCHA! GAME OVER! Here is why.  Continue reading →

Posted in Promotion/Hiring | Tagged | Leave a comment

Posted on August 23, 2022 by AdminUN

AFGE SEVERS ONE OF ITS COUNCILS

AFGE just made a very hard decision. It notified FLRA that it no longer wished to represent the 7,500 employees of the Immigration & Citizenship Enforcement (ICE) service. That means a big loss of revenue for AFGE and the ICE employees are without any union representatives at all.  Why?  Well, apparently the employees and the leaders of the old AFGE locals in the ICE Council of locals were unhappy with the AFGE and AFL-CIO political positions on immigration, e.g., trying to stop employers from exploiting them. The unhappiness was mutual given the ICE Council leaders have been working hard to oppose the national union’s political goals. Here is a good story with more depth.  It seems a certainty that the old AFGE local leaders in ICE will try to form their own union and seek formal recognition from FLRA. What is less certain is whether AFGE tries to reorganize ICE employees with a new structure run by different local leaders or even whether another union tries to get in.  If either of those two things happens, ICE employees could be without union representation for years, during which they will be extremely vulnerable to agency reorganization plans.

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Posted on August 18, 2022 by AdminUN

HOPING FOR THE BEST FOR OUR LAW ENFORCEMENT COLLEAGUES

The last ten days have seen someone ignite a firestorm of criticism against federal law enforcement personnel merely for doing the job they were appointed to and bound by law to do. Not surprisingly, the lies and liars stoking this hatred are pushing the less well-balanced of their supporters to think it is an act of patriotism to harass, harm or even kill federal officials or their families.  That means the odds of this happening are higher than normal.  So, it is a good time for unions representing feds in law enforcement occupations to solicit any ideas their members have to boost protections and push agency leaders to make some changes. It also would not hurt to urge all unit members to be a little more alert over the next few weeks to potential risks in the workplace.

Posted in Health & Safety | Tagged | Leave a comment