Posted on March 27, 2022 by AdminUN

EEOC ALLOWS GAY NASA EMPLOYEE TO REASSIGN HIS SUPERVISOR

We pay NASA employees to keep their head in the clouds—in a good way, but how could they have missed that it is against the law to discriminate against gay employees? Standing too close to the rocket fuel fumes? In any event, when a high-level administrator was found to have discriminated against a gay employee, EEOC ordered that the employee be allowed to determine whether the administrator stayed in the same chain of command as he or had to move to a different part of the organization.  Here is how they put their order, followed by a list of the things the administrator did to earn this very unusual penalty. Continue reading →

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Posted on March 18, 2022 by AdminUN

WHEN UNCLE SAM WILL PAY FOR A CAR WASH

Almost never, but there is an exception that was just certified for the Civilian Board for Contract Appeals (CBCA).  That board handles travel voucher disputes for federal employees who cannot grieve and arbitrate the issue. In the recent case of Glenn F., CBCA 7227TRAV (11/24/21) the Board reversed an agency decision not to reimburse an employee the cost of washing his rental car.  The Board reasoned that the claimant’s cost for washing his rental car is allowable because he was restoring the car to its condition when he first rented it, and his action avoided additional charges from the rental car company if he returned it dirty.  While we would not label this a huge win for workers, every little bit helps.

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Posted on March 7, 2022 by AdminUN

HOW TO VERIFY MANAGERS HAVE BEEN DISCIPLINED

Every time EEOC finds a manager discriminated against an employee it orders the agency to “consider” disciplining the manager.  It does not appear to have the power to order discipline no matter how egregious the violations of an employee’s civil rights. Only the Special Counsel and MSPB have that power. However, someone must ask them to do so before they can. Ideally, that would be the employee’s union. A 2019 FLRA decision gives unions a way to find out what, if any, disciplinary action the agency took voluntarily and to assemble the information needed to put a case before the SC/MSPB where it can be prosecuted as a manager committing a prohibited personnel practice.  In Dep’t of Veteran Affairs, Georgia and NFFE, 71 FLRA No. 82 (2019) … Continue reading →

Posted in Discipline/Adverse Action, Information | Leave a comment

Posted on March 7, 2022 by AdminUN

ESSENTIALS OF FEDERAL SECTOR LABOR LAW TRAINING

That’s the name of an online training program being offered by Cyberfeds & the Gilbert Training Group on April 25-28. The course walks attendees through the jurisdiction and precedents of the Federal Labor Relations Authority (FLRA) and Federal Service Impasses Panel (FSIP) and how unions and bargaining units are created and modified. Other topics include how to make and respond to requests for information and all aspects of negotiating a CBA, including management rights and obligations under § 7106 as well as strategies. Finally, attendees will learn alternatives for effectively presenting a case for arbitration, best practices to approach complex arbitration matters, and remedies available for successful arbitrations and strategies for mitigating awards. The instructors include Frank Ferris, Peter Broida, Saul Schwartz, Marilyn Blandford, and Keith Taubenblatt. Fill out the registration form and send via email or USPS Mail.

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Posted on March 1, 2022 by AdminUN

UNION REP TEST #19 – (Oral Replies)

Very few moments in an employee’s life are as anxiety-producing as a proposed suspension, demotion or removal. That makes it vital that their union rep at the oral reply (OR) do a job that leaves them highly impressed and eager to tell others about how good the union is.  Listed below are some pieces of advice on how to do the best possible job at an oral reply.  Read through them and identify whether each is good advice (G) or poor (P). Our answers follow the statements. Continue reading →

Posted in Discipline/Adverse Action, Union Rep Test | Tagged | Leave a comment

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.

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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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