Posted on April 26, 2020 by AdminUN

COMPENSATION FOR A LONGER (& ILLEGAL) COMMUTE

In labor relations it is next to impossible to get paid for the time spent commuting to and from work no matter what the violation of law, regulation or contract.  But the EEOC is more flexible on the issue. When a member of the Marshall’s Service was reassigned to another office while his EEO complaint was investigated, WHICH TOOK FOUR YEARS, he charged retaliation and won. EEOC looked at the harm the 62-mile round trip commute did to his personal life and gave him $90,000 to make up for it, along with a reassignment back to his original office. (See Donte v Dept of Justice, EEOC No. 2019005117 (2020)) The lesson for union reps is that it can pay off big when drafting a grievance to allege and pursue even the remote possibility that some violation against an individual is motivated by illegal discrimination, harassment, or retaliation.  Nothing stops a rep from alleging EEO infractions along with violations of contract, regulations, law or past practice.

Posted in Commuting Area, EEO Harassment | Tagged | Leave a comment

Posted on April 17, 2020 by AdminUN

FLRA WILL DESTROY LABOR ARBITRATION UNLESS ARBITRATORS DO THIS

In 2017 Trump filled the majority of the seats on the Federal Labor Relations Authority from his stockpile of political operatives who understand the need to crush unions and employee rights to repay their political cult’s benefactors. Once firmly seated, the two Trumpettes started to gut arbitration of federal employee disputes in order to send the message to federal employees that unions can do less and less for them. Given that federal law permits FLRA to review every arbitration decision other than those involve adverse disciplinary actions, namely, actions in excess of a 14 day suspension, the two Trump appointees are in the position to overturn any arbitration decision that goes a union’s way.  And they have done just about that because their decisions cannot be reviewed by a federal court. So, for example, when an arbitrator ordered an agency to grant an employee 12 months of retroactive overtime (about $35,000.00) that he had been denied in violation of the agreement, the Trump appointees decided that was not “reasonably and proportionately related to the violation.” Although there is no record of FLRA using these grounds to overturn an arbitration award in the previous 38 years, these Abbott & Kiko have now used it more than a dozen times. Another one of their favorite grounds for gutting arbitrator awards is to second-guess the arbitrator by ruling that the remedy does not “draw its essence from the agreement.” There is little unions can do right now to try to preserve the validity of the arbitration process, but there are a few things arbitrators can do. For example, . . . Continue reading →

Posted in Arbitration, FLRA | Tagged | Leave a comment

Posted on April 17, 2020 by AdminUN

THE ABBOTT-KIKO ARBITRATION OVERTIME SWINDLE

After 40 years of FLRA upholding virtually all arbitrator decisions granting employees retroactive overtime pay for violations of the labor agreement, regulation, past practices or law, the two Trump FLRA appointees have conspired to swindle federal employees out of this money.  They are doing it to weaken the image of unions—and maybe to earn some bigger personal payoff from their political cult’s backers. These two labor law grifters have vacated several arbitrator awards of retroactive overtime pay by pronouncing that the awards do not draw their essences from the agreements, do not reasonably and proportionately relate to the violation, or do create an excessive adverse impact.  Those conclusions are typically supported only by their personal opinions, not citations to precedent, objective benchmarks, nor even reasoned explanations. But looking through these cases, it strikes us that a very important argument is being left out of the briefs, namely, the force of the Back Pay Act (BPA). It is an argument that should be made even though the odds are against Abbott or Kiko being judicially honorable enough to accept it. Continue reading →

Posted in Arbitration, Overtime | Tagged | Leave a comment

Posted on April 9, 2020 by AdminUN

WHAT DID THIS UNION DO WRONG?

Here are the facts. See if you can figure out two things the union did wrong.  The agency had a practice of placing a guard at each of its strategically important locations around its property every shift.  When it suddenly changed that by requiring one staff person to cover two strategic locations per shift rather than one, the union charged management with violating the contract.  The clause at issue read as follows: “The Employer agrees to lower inherent hazards to employees to the lowest level possible without relinquishing its management rights.  A ‘strategic location’ is defined as a self-contained area and can only be safely secured by a single officer.”  The union grievance asked for a return to the prior staffing level and that is what the arbitrator ordered. However, FLRA overturned the award saying that it intruded too heavily on management’s right to assign work.  Have you identified the two errors yet? Continue reading →

Posted in Grievance/Arbitration, Test Yourself | Tagged | Leave a comment

Posted on April 9, 2020 by AdminUN

FEDS OVER 40 CATCH A BREAK

The Trump Administration tried to slash federal employee rights to fight age discrimination, but on April 6, 2020 the Supreme Court slapped them down hard. The Trumpetteers wanted to force feds to have to prove that age discrimination was the ONLY reason an agency took an adverse action or denied a fed a benefit.  The Court tossed that view in the dumpster and held that it is illegal discrimination if age played ANY role in the decision.  So, even if an agency can prove that a younger promotion candidate had a quality the over 40 employee did not, the selection would be illegal if age played a lesser role in the selection decision.

Posted in Age | Tagged | Leave a comment

Posted on March 30, 2020 by AdminUN

VITALLY IMPORTANT THINGS TO KNOW ABOUT FSIP’S POWERS 

The statute establishing the Panel gives it the power to “take whatever action is necessary” to resolve an impasse. (5 USC 7119) However, often the Panel ignores the fact that there are a lot of limitations on those five words. Some deal with whether the Panel has the power to take jurisdiction at all over a dispute. Other limitations apply to the content of the final order the Panel can issue, and still others address the enforceability of a final order. Because the Panel tends to ignore these limitations, it is up to the harmed party to mount a proper challenge. Here is a quick review of all those limitations.  Continue reading →

Posted in FSIP | Tagged | Leave a comment

Posted on March 30, 2020 by AdminUN

ACCOMMODATING THE DISABLED ALMOST EVERY TIME IS NOT GOOD ENOUGH 

Not long ago the Dept. of Defense tried to defend itself against an allegation that it had failed to provide a deaf employee a reasonable accommodation by pointing out that it had done so 11 out of 15 times the employee asked during the period in question. But complying with the law 73% of the time is not a defense, and the EEOC told DOD to figure out how much of a check to give the employee as compensation for the harm done. Continue reading →

Posted in Disability | Tagged | Leave a comment

Posted on March 25, 2020 by AdminUN

ARBITRATING EQUAL PAY ACT DISPUTES–EASY-PEASY

What can a Hispanic woman do if she is not getting the same salary as a man performing nearly identical duties? She can file a complaint with the EEOC claiming a violation of the Equal Pay Act (EPA), but she cannot file the same allegations in the grievance-arbitration forum because FLRA said so in DOL and AFGE, Local 12, 63 FLRA 216 (2009).  It claims that because the grievance would seek to have the person reclassified to a higher grade that violates the statutory prohibition against grieving classification matters. FLRA prefers to ignore the more basic nature of the grievance, i.e., a discrimination claim like any other that can be grieved and arbitrated. Moreover, even if an arbitrator ordered a person’s job upgraded law still permits the agency to immediately downgrade the job so long as it follows proper procedures. There is nothing “permanent” about any upgrade.  But how can unions ever get this changed if FLRA arbitration exception decisions on what is grievable are not reviewable in court?  EASY-PEASY! Continue reading →

Posted in Equal Pay | Tagged | Leave a comment

Posted on March 25, 2020 by AdminUN

TIME TO QUARANTINE CBP MANAGEMENT?

We have been watching CBP management for a while and it seems as if it is a diseased culture at the top of this vital agency.  EEOC has pointed out all too often that it finds CBP managers who take the stand and testify under oath just do not tell the truth.  That should be a removal offense for a law enforcement supervisor.  And the examples just keep coming. In yet another recent case, a manager filed an EEO complaint when she was not selected for the position of Supervisory Border Agent, National Frontline Recruitment Command, GS-15. Continue reading →

Posted in Retaliation | Tagged | Leave a comment

Posted on March 21, 2020 by AdminUN

FSIP, DE FACTO NEGOTIABILITY DISPUTES & ULP’s

Agencies are obligated by executive order to refuse to negotiate over certain union proposals. So, what happens if a union makes proposals that directly clash with the provisions of Trump’s executive orders? One union has set out to find out with the following term agreement proposals: Continue reading →

Posted in Bargaining Negotiability, FSIP, Strategy/tactics | Tagged | 3 Comments