Posted on June 22, 2022 by AdminUN

THE LEVEL 2 PERFORMANCE APPRAISAL TRAP

The word is quietly passing around among managers urging those agencies that have an appraisal system with a level between Fully Successful and Unacceptable for each element to abolish that rating level. It is commonly called Minimally Successful or Minimally Acceptable level.  Abolishing it makes it easier to fire employees because it removes a critical protection employees now have. Here is a brief description of what that protection is and what unions can do if the agency tries to abolish the rating level. Continue reading →

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Posted on June 14, 2022 by AdminUN

ARBITRATORS CAN’T, BUT UNION REPS CAN

FLRA just issued a decision overturning an arbitrator’s decision on how to award back pay for unpaid overtime that highlights a very powerful club unions have in these cases. After deciding the agency had failed to pay about 130 employees for the extra few minutes a day they worked beyond their eight hours, the arbitrator decided to give each employee the same amount of overtime by averaging and approximating the total extra hours worked and using the agency’s recommended locality pay chart for everyone irrespective of where they worked. That worked out to be $2,182.13 per person, to which he added a uniform amount for liquidated damages. The Agency was delighted with this averaging and approximating approach because it saved it the very expensive effort of calculating every employee’s individual back pay amount. But the union filed exceptions claiming that the arbitrator violated law by taking this “averaging and approximating” shortcut to calculating backpay. When the FLRA agreed with them, it handed the union a huge club with which to squeeze the employer into settlements on group back pay cases.  Here is how that would work. Continue reading →

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Posted on June 14, 2022 by AdminUN

MSPB CHANGES SIXTH DOUGLAS FACTOR’S MEANING

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 →

Posted in Discipline/Adverse Action, MSPB | Tagged | Leave a comment

Posted on June 10, 2022 by AdminUN

$63 MILLION PAYOUT COMING YOUR WAY

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.   

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Posted on June 9, 2022 by AdminUN

THIS IS OUR TIME: HOW WOMEN ARE TAKING OVER THE LABOR MOVEMENT

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.

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Posted on June 7, 2022 by AdminUN

WHEN TO APPEAL AN ARBITRATION LOSS TO MSPB/EEOC, NOT FLRA

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 →

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Posted on June 7, 2022 by AdminUN

FEDERAL APPEALS COURT EXPANDS RIGHT TO CHALLENGE DISCRIMINATION

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 →

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Posted on May 24, 2022 by AdminUN

YOUR SANTOS RIGHT GIVEN RETROACTIVE EFFECT

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 →

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Posted on May 24, 2022 by AdminUN

REINSTATED DESPITE 939 HOURS OF UNSCHEDULED LEAVE IN ONE YEAR

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 →

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Posted on May 14, 2022 by AdminUN

TRUMP’S UNION REMEDIES TURN OUT TO BE AGENCY COLONOSCOPIES

At the urging of several right-wing clans Trump prescribed changes via Executive Orders designed to crush federal sector labor unions’ bargaining power. To those of us who read, it was totally predictable that his orders required agency negotiators to violate the law. They made about as much sense as his Hydroxychloroquine, Ivermectin, and Clorox Chewables recommendations to treat COVID. So, we were not surprised to see yet another arbitrator rule last week that an agency’s five-year effort to negotiate a badly needed new term agreement was worthless and that management had to go back to square one to start the bargaining all over again. The discomfort, if not pain, Trump’s Executive Order remedies are causing agencies like this one now amount to the equivalent of withering organizational colonoscopies. We know of four other arbitrators who have reached the same conclusion in other agencies. Continue reading →

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