Posted on August 9, 2021 by AdminUN

GRIEVANCE STRATEGY ISSUES – Part 3

The third typical requirement of every grievance is that the union note the date of the alleged violation or the date it became aware of the violation. Not only can that be more complicated than it seems, but agencies insist on a date for a very important reason.  Forcing a union to file a grievance within 15 or 20 workdays of an objectionable incident creates the potential for the agency that the employee or union rep will dawdle to the point that they miss the deadline and relieve the agency of any liability. In most cases it also means that even where the agency has been violating a contract provision for months or years the union can only get back pay starting 15 or 20 days before the day it filed the grievance. There are ways around both of those obstacles and that is what this post is about.   Continue reading →

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Posted on August 9, 2021 by AdminUN

AFGE’S GUTSY MOVE PAYS OFF FOR EVERYONE

There are a few things that separate an average union representational effort from a super one, and one of them is whether its reps are creative, e.g., they do things, even risky things, the agency did not anticipate.  A new decision out of the Federal Circuit Court of Appeals highlights a very gutsy move AFGE’s Social Security Council took to defend a fired employee. Other unions can learn from it and ER/LR reps can see another reason not to jump to conclusions based on surface evidence. Continue reading →

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Posted on August 3, 2021 by AdminUN

REASONABLE ACCOMMODATION: HERE IS SOMETHING WE HAVE NOT SEEN BEFORE

EEOC just blessed the idea that while an employee who has requested a reasonable accommodation waits for that accommodation to be provided it is equally reasonable for the employee to request that his/her performance standards be suspended until the formal accommodation is in place.  In Kristopher v. Mnuchin, EEOC No. 2019001911 (2021) the employee and agency agreed to provide the employee additional software to accommodate and disability, but acquiring it would take a while. Consequently, EEO suggested the parties agree to suspend the employee’s performance standards in the meantime. Sounds like something union reps should keep in mind. In fact, we wonder why the employee would not request the standards have been suspended from the time the disability impacted his/her performance. The employee was awarded $75,000 in compensatory damages for the agency’s delay.

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Posted on August 3, 2021 by AdminUN

WHAT UNIONS ALMOST ALWAYS MISS TARGETING WITH FRIENDLY WHITE HOUSES

History has shown that when there is a union-friendly President in the White House federal sector unions usually want on three things, i.e., 1- new appointees to the FLRA, 2- new appointees to the FSIP, and 3- an order requiring agencies to bargain over 7106(b)(1) subjects.  The first two are inevitable, although they seem to take an unexplainably long period of time. The third one is almost never achieved with unions settling for some sort of vaporous, feel-good, we-will-do-better relationship pact. President Biden, to his credit, has finally ordered bargaining over those topics, although by delaying his appointments to FLRA and FSIP stunted any union permissive topic bargaining clout. But for some reason unions never seem to target a fourth area for change that has as much potential as all the others to improve things, i.e., government-wide regulations, particularly OPM’s. Below is comment on five such regs that union should be working overtime to get OPM to modify. Continue reading →

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Posted on July 27, 2021 by AdminUN

HERE IS HOW TOUGH EEOC (& UNIONS) CAN BE ON AGENCY PROMOTION RATING SYSTEMS

A State Department employee failed to achieve a passing score on the agency’s promotion rating system. In fact, he failed by a lot, getting only a 67 when 80 points were needed. But EEOC did such a through job of punching holes in the agency’s promotion rating systems that it ordered the employee retroactively promoted. The EEOC analysis is a model for what any union/employee can do to attack a nonsensical agency promotion decision where there are hints of possible discrimination. Continue reading →

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Posted on July 23, 2021 by AdminUN

EEOC CLAIMS DEMANDING FINGERPRINTS CAN BE RELIGIOUS DISCRIMINATION

Given that all federal employees must sub it to fingerprinting to get their job, and certainly leave their fingerprints all over the workplace every day, we thought you might be interested in this EEOC press release which we reprint verbatim. We have been unable at post time to identify which religion forbids letting others have your fingerprints. EEOC Sues AscensionPoint Recovery Services for Religious Discrimination. MINNEAPOLIS — AscensionPoint Recovery Services, LLC (APRS), a Minnesota-based estate and probate debt recovery company that manages decedent debt recovery for creditors, violated federal law when it fired a Christian employee instead of accommodating his request not to be fingerprinted due to his religion, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today. Continue reading →

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Posted on July 20, 2021 by AdminUN

EEOC SAYS, “LET THAT DOG WORK”

An employee with a heart condition (atrial fibrillation or Afib) obtained a service dog that could alert her to when an attack was coming. Upon being alerted, she could take medication to avoid another stroke.  She had five before getting the dog. When she asked her employer in June for permission to bring the dog to work with her, she only got a runaround back for the next ten months rather than the reasonable accommodation she wanted.  EEOC found the delay intolerable as well as nothing that suggested the dog would interfere with operations. So, it found a violation of law and ordered the agency not only to allow the dog onto its premises but also to pay the employee compensatory damages. We decided to bring this case to your attention to drive home the point that accommodations for the disabled need not just be devices or schedule changes. For details, check out Thersa E., v. Louis DeJoy, Postmaster General, EEOC Appeal No. 0120182764 (2021)

Posted in Disability, Reasonable Accommodations | Tagged | 1 Comment

Posted on July 19, 2021 by AdminUN

NEW FLRA DECISION SETS A RECORD FOR BLUNDERS

The Authority just issued DoD, DoDEA, Puerto Rico and Antillies Consolidated Education Association, 72 FLRA 414 (2021) which, along with the related prior Court of Appeals decision and other FLRA decision set the unofficial record for the most blunders in a single FLRA case. Those other decisions are DOD, Domestic Dependent Elementary & Secondary Schools, Fort Buchanan, P.R., 71 FLRA 127 (2019) and Antilles Consol. Educ. Ass’n v. FLRA, 977 F.3d 10 (D.C. Cir. 2020). After a brief summary of the case, we are going to list them for the benefit of negotiators who may be facing similar FLRA screw-ups. Continue reading →

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Posted on July 19, 2021 by AdminUN

FMLA OFTEN REQUIRES PERFORMANCE STANDARD ADJUSTMENTS

Often an employer must adjust an employee’s performance standards once it approves the employee’s FMLA leave request.  Not long ago a Federal Circuit Court spelled it out for LR practitioners on both sides of the table. Continue reading →

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Posted on July 7, 2021 by AdminUN

UNION REP TEST #14- (Back Pay Entitlement)

Many grievances are about getting back pay for employees, which makes it very important that practitioners know what can and cannot be done with back pay. Unfortunately, there are a lot of traps in the Back Pay Act (BPA) that can void an otherwise fair grievance settlement and hurt the covered union members deeply. Read through the hypothetical grievance settlement below and then answer the multiple choice question that follows. You can find the answer to the quiz at the end of this post. Continue reading →

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