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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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