HOW TO APPEAL “LAST CHANCE AGREEMENT” DISMISSALS

The Federal Circuit Court of Appeals just reminded us that while it is possible to challenge, appeal or arbitrate a dispute over whether a last chance agreement permitted the agency to terminate an employee without any opportunity to appeal, the employee will have to show one of three things, i.e., that – 

  1. he complied with the LCA,
  2. the agency materially breached the LCA, or
  3. he did not enter into the LCA knowingly and voluntarily.

For details, check out Ross v. MSPB, No. 2021-2262 (Fed. Cir. Feb. 10, 2022) for an Internal Revenue Agent failed to show any of those.

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MSPB EXPANDS ACCUSED EMPLOYEE’S RIGHT TO INFORMATION

 A Homeland Security Agent was fired for falsifying an official form.  When he tried to defend himself by pointing out how supervisory employees who committed the same offense were not fired, DHS management and the MSPB Judge would not let him see that evidence.  The terminated employee appealed, and got not only the information but another chance to prove his defense. Continue reading

Posted in Discipline/Adverse Action, Information, MSPB | Tagged | 2 Comments

FLRA WEAPONIZES FSIP AGAINST UNIONS IN FEA CASE

There are at least three ways a union can be treated illegally at the FSIP.  First, the agency can engage in bad faith bargaining that poisons the entire proceedings. Second, the Panel can exceed its jurisdiction.  Third, the Panel can impose contract terms that violate the law. Agencies have effective ways to challenge each of them, but FLRA recently highlighted with the following words that it will let unions challenge only the first situation: “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, and FEA, Stateside, 72 FLRA 601 (2021)) Requiring the agency to file a ULP before a union can challenge the legality of a Panel order screams of an arbitrary and capricious action, as explained below. Just as importantly, it puts the Panel in a position to illegally savage a union and the statute without any threat of reversal. Continue reading

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ONE MORE TIME WITH GUSTO: GRIEVING NON-SELECTION

We have said it many times before, but we can’t make the point to often.  If a qualified employee is non-selected for promotion in favor of a person from a different protected civil rights group, s/he meets the prima facie test of discrimination. Once met, the burden shifts to the agency to provide a considerable documented explanation as to why the employee was passed over. Sadly, most union reps do not appreciate what an advantage this gives the employee seeking retroactive selection. Read the following excerpt from a new EEOC decision which once again outlines what the employer must demonstrate once the employee meets a prima facie test. If representing a non-selected employee, do not overlook the potential to raise an EEO allegation in any grievance along with contract and/or regulatory violations. If you file an EEO complaint, the Commission will not address any contract violations that might also have occurred, which is a clear disadvantage. Continue reading

Posted in EEO/Discrimination, Promotion/Hiring | Tagged | 2 Comments

THE FLRA GUIDANCE GOLD MINE

Suppose Amazon’s Alexa could summarize the case law on dozens of federal employee labor law issues upon your request for help. Given the AI technology is not there yet, the next best thing for a union rep would be around the clock access to a legal expert who could do that off the top of her head when you called. That does not exist either, but the next best thing does. FLRA has posted almost 18 different legal analyses and guides for the practicing LR advocate that are easy to read and that will you headed in the right direction.  Check out the “Guidance & Manuals” page. Then bookmark it so you can get to it quickly when you need it. 

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PANTS VERSUS SKIRTS: A RELIGIOUS DISCRIMINATION MOMENT

Some religions require women cover up from top to bottom while others declare that the Lord they worship wants women to show their legs – even when working in a men’s prison. Under the law barring religious discrimination the validity or credibility of a person’s religious belief is almost impossible to challenge.  Consequently, it is no surprise that one employer that ran the health unit in a men’s prison wound up shelling out $75,000 when it withdrew a job offer from a women because as a Apostolic Pentecostal Christian she refused to wear scrub pants rather than a skirt while at work. So, open your mind to a wider range of religious beliefs now.

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HEALTH & SAFETY WHILE TELEWORKING

Given that the World Health Organization (WHO) has joined the building push to focus on this, it is time unions also paid attention.  The WHO Report is a good place to start your research on the specific hazards and remedial actions.

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A VERY HELPFUL SHOP STEWARD TOOL

It is not easy remembering all the different ULP’s managers can commit or the union’s right to attend formal meetings or a dozen or so other legal issues that pop up regularly in a steward’s work.  But FLRA has made a lot easier by issuing something called the “FLRA General Counsel ULP Case Law Outline 2020.” It covers dozens of labor law issues by providing short, easy to understand descriptions of the precedent cases in each.  If you ever wished there was a short book explaining federal employee labor law, this is as close as it gets.  Stewards should keep a copy easily accessible in a draw or a bookmarked tab.  Continue reading

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HOW HAZARDOUS DUTY PAY CASES ARE WON

FLRA issued a decision in the middle of 2021 that put a bright light on how these cases are won and lost. Given how hostile the current FLRA members—or at least two of them—are to employee rights, AFGE deserves a lot of credit for surviving the Authority’s majority predisposition to overturn every employee arbitration win.  The case involved housekeeping staff at a VA hospital who the arbitrator found were entitled to environmental-differential pay (EDP) because they worked in close proximity to high-hazard microorganisms. These were not just COVID organisms. He built his bulletproof decision on the following findings, which are going to be critical issues in any hazardous duty case: Continue reading

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UNION REP TEST #18 – (Attending Formal Discussions)

Very few unit employees will ever see union leaders negotiate a contract or even represent a co-worker in a grievance. But if the union uses its right to attend all formal discussions, every unit employee will see union reps in action several times a year.  It is the single best way to demonstrate union expertise and clout to the employees you want to pay dues.  So, it is important to know what a union’s rights are to attend and be active in these discussions. Listed below are statements about formal discussion law and representational tactics. Indicate whether the statement is True or False.  The answers, along with some case citations for further research, follow the questions. Continue reading

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