If a union rep cannot undermine the agency’s evidence that the employee committed the alleged disciplinary 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
FEDSCOOP has reported that the courts have approved this multi-million dollar settlement covering those folks damaged by the privacy hack of OPM files. Here is the FEDSCOOP story and a link in it to the court document will give you an idea of who will be getting this money.
There is a very thought-provoking USATODAY article by this same title posted on MSN that we want to bring to your attention. Check it out here.
FLRA recently reminded union leaders that under 5 USC 7122(a) it does not have jurisdiction to review arbitration decisions involving adverse actions. In AFGE and Dep’t. of Veteran Affairs, 73 FLRA No.4 (2022) it rejected a union’s appeal of an arbitration decision involving an employee’s claim that his resignation was involuntary, aka a constructive discharge. Unfortunately, given how long it took for the FLRA to decide the case the time limit for appealing the decision to MSPB or the courts had long passed – leaving the employee without any appeal rights. Most union locals know that any adverse action arbitration decision can be appealed to a court, but they also know that is expensive. What is not generally known is that some adverse action arbitration decisions can be appealed to MSPB or EEOC in lieu of immediately going to court. Here is a quick overview of when a union has that option. Continue reading
For years most courts have held that an employee must show some tangible adverse harm before s/he can challenge a management action as being discriminatory, e.g., a termination, loss of overtime, denied promotion, etc. Rightly, they did not want employees launching EEO cases over petty slights or minor annoyances, but there was a lot of disagreement over what was petty and what was not, particularly involving management transfer, reassignment, detail, and training decisions where the employee did not lose money, benefits, or status. But, on June 3, 2022 the D.C. Circuit narrowed the definition of what is to be considered petty when it decided by a 7 to 4 vote that a female employee denied a transfer commonly given to male co-workers could file a discrimination claim even though she did not show tangible harm to salary, benefits or status. (See Mary. E. Chambers, v. District of Columbia, No. 19- 7098 (Rehearing En Banc)). It wrote, Continue reading
You might remember our recent post about a new court decision, known as Santos, holding that when an agency fires someone for unacceptable performance it must now prove that the original PIP it put the employee on was justified. In other words, they must show that the employee was performing unacceptably before the PIP, not just at the conclusion of it. Well, MSPB just made that news even better. It ruled last week that… Continue reading
This employee worked only three full pay periods over the course of a year. In all the others, he called in from home or wherever to ask for annual, sick or whatever kind of leave the agency would grant him, including AWOL. The agency put him on leave restriction letters twice during that time and suspended him twice for a total of 17 days without pay for failure to follow proper leave procedures and the suspension notices “clearly state[d], ‘[y]ou are cautioned [that] any repetition of this or similar offenses may result in more severe disciplinary action against you’” for not following leave procedures. Finally, they fired him in June 2016. Most union reps would look at those facts and conclude that the best thing they could do for this guy is get him a clean record if he resigns. But they would be wrong because the MSPB said he should be reinstated. See Christopher M Robinette v. Dep’t. of the Army, MSPB Doc. No. AT-0752-16-0633-I-1 (May 11, 2022) Here is why. Continue reading
Finalllllllllly! This morning the Senate voted to confirm Susan Tsui Grundmann to take a seat at the FLRA. STG is one of the most respected, professional, and knowledgeable neutrals in the federal sector community, and will undoubtedly return FLRA to a place where judicial scholarship rules rather than political retribution. Coupled with that wonderful news is the fact that with her being confirmed, Bwana Jim Abbott is out the door. Jim will be forever known as someone who was driven by a sense of tribal justice rather than legal scholarship. He knew he was put in that job to screw over unions and federal employees and he did just that no matter how often a federal circuit court said he was wrong. He rarely let an arbitrator’s award of back pay stand–seeming to take particular delight in taking overtime pay away from those who earned it. Moreover, he imposed interpretations of the statute that increased rather than decreased the ambiguity of law, which is how a country moves from a government of laws to a government of political appointee biases. Most of all he set a new bar for what it means to be a political hypocrite. Here is a press release from NFFE with more details about the confirmation.
EEOC is running a free webinar geared toward union reps as much as anyone else. It is scheduled for 1 pm eastern time on the 11th and will focus on the latest EEOC/EEO developments. If you are interested, move quickly to get one of the slots by registering here.