Posted on October 11, 2022 by AdminUN

ASKING THE SPOUSE IS A D.O. DUE PROCESS NO-NO

When a federal firefighter failed a random drug test, he claimed that he must have mistakenly taken one of his mother’s pills given that they live together. The agency decided not to buy that excuse and proposed his termination.  When the employee made the same claim as part of his official reply, the Deciding Official (D.O.) elected to ask his wife, a nurse, whether it was likely someone could confuse the pills the employee was legitimately prescribed for the pill he allegedly took from his mother’s prescribed pills. For good measure, he also asked his brother-in-law, another nurse.  When both said it was most unlikely, the DO upheld the termination. Can you see yet why the federal courts overturned this removal even though the arbitrator of his grievance refused to do so? Continue reading →

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Posted on October 3, 2022 by AdminUN

EIGHT YEARS OF BACK PAY & AN AGE DISCRIMINATION GUIDE

MSPB just issued what it labelled a precedent-setting decision that will give a former OMB employee eight years of back pay and all the benefits that go along with it. We are delighted for her, but one of the things that stuck out from the MSPB decision was a very well-written description of what is necessary to prove age discrimination in the federal sector. No one expects stewards to be employment lawyers or even to remember all the decisions that have been issued that might be helpful to a member someday. However, you might find it helpful to read through the MSPB guide to proving age discrimination just once to get a sense of what to look for when a member in trouble stops at your desk.   What follows is a verbatim excerpt from the Board’s ruling in Marguerite Pridgen, v. Office of Management and Budget, 2022 MSPB 31 (September 12, 2022) Continue reading →

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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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