Posted on March 1, 2022 by AdminUN

CALLING ALL FMLA MAVENS

In an ideal world, each union local has a steward or officer who is the employees’ expert/ specialist/whiz/maven in FMLA matters, i.e., someone who knows more than the ten most common things about the law and how to get the answer to the tougher, more unusual questions.  If your local does, then s/he should be familiar with the American Bar Association’s annual summary of the latest FMLA court decisions. We recommend the local’s expert read through it when issued—even if there is not a pending local dispute. That can open one’s eyes to possibilities for helping employees.  This year’s edition summarizes 47 Federal Circuit Court decisions—and over 100 lower court rulings, reducing the precedent to a few lines each. Here are some of the topics addressed.

  • CHAPTER 3. ELIGIBILITY OF EMPLOYEES FOR LEAVE
  • CHAPTER 4. ENTITLEMENT OF EMPLOYEES TO LEAVE
  • CHAPTER 5. LENGTH AND SCHEDULING OF LEAVE
  • CHAPTER 6. NOTICE AND INFORMATION REQUIREMENTS
  • CHAPTER 7. PAY AND BENEFITS DURING LEAVE
  • CHAPTER 8. RESTORATION RIGHTS
  • CHAPTER 9. INTERRELATIONSHIP WITH OTHER LAWS, EMPLOYER PRACTICES, AND COLLECTIVE BARGAINING AGREEMENTS
  • CHAPTER 10. INTERFERENCE, DISCRIMINATION, AND RETALIATION CLAIMS
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Posted on February 20, 2022 by AdminUN

GILBERT & BROIDA RESCUE DISABLED CBP OFFICERS

Way back in 2014 we wrote about a Customs and Border Patrol Officer with sleep apnea who asked to not be assigned to night shift or overtime work because his condition required that he get eight straight hours of sleep a night. The agency terminated him because it believed that these were essential duties of the job and there was no way to reasonably accommodate such a request. Although EEOC ruled the employee’s rights were violated, MSPB overruled EEOC and upheld the termination in August 2014. It agreed with the agency that it could never allow an employee to get out of working overtime or nights. The employee went looking for help to represent him in the very unusual Special Panel appeal process and to his good fortune (as well as that of all other temporarily or permanently disabled CBP Officers) the attorneys at Gilbert Employment Law took on the case. Given its legal significance to all CBP Officers the Panel allowed other parties to file amicus briefs, at which point Peter Broida, a renowned expert in MSPB matters, joined Gilbert in this fight. To make a long story short, they won and got the employee reinstated with back pay and compensatory damages. But it is important to understand what rights this case did and did not establish for all CBP Officers. Continue reading →

Posted in Disability, Reasonable Accommodations | Tagged | 1 Comment

Posted on February 18, 2022 by AdminUN

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.

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

Posted on February 14, 2022 by AdminUN

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

Posted on February 11, 2022 by AdminUN

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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Posted on February 8, 2022 by AdminUN

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

Posted on February 6, 2022 by AdminUN

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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Posted on February 3, 2022 by AdminUN

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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Posted on February 3, 2022 by AdminUN

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.

Posted in Health & Safety, Telework | Tagged | Leave a comment

Posted on January 31, 2022 by AdminUN

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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