Posted on June 6, 2019 by AdminUN

THE LIMITS OF BACK PAY ORDERS

Dear Fedsmill,

I just saw the Authority’s May 22, 2019 decision in which it chose not to enforce a 2017 FSIP final order.  That order required an agency to implement a salary increase retroactive to 2015 as part of its new term agreement. I am shocked.  Doesn’t the law say that FSIP has the power to “take whatever action is necessary” to resolve an impasse? (5 USC 7119(c)(5)(B)(iii)). If this decision holds up, how should we respond to it?

/s/ Colleen DeBurg 

Dear Colleen:

Rather than focus just on the Panel’s ability to set salaries, which only a few unions bargain over, let’s assume the Panel did the same thing with a transit subsidy dispute. For example, imagine that in May 2019 FSIP increased the subsidy the agency was to pay and made its order 24 months retroactive. Lots of unions bargain those subsidies. Continue reading →

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Posted on June 5, 2019 by AdminUN

FLRA SMACKS DOWN FSIP ON “TENTATIVELY AGREED” ISSUES

On May 22, the Authority told FSIP that it does not have the power to order the parties to implement those issues tentatively agreed before they came to the Panel to settle their unagreed issues.  The Panel has occasionally ordered the parties as part of the FSIP decision on the unagreed issues to implement all the previous tentative agreements along with the provisions it has ordered. The Authority noted that even though the statute says the Panel can “take whatever action is necessary,” that power is limited to the parties unagreed or impassed issues.  In a simple world the parties lump their tentatively agreed articles with those newly settled by the Panel, send the bundle forward for agency head review, and implement the new deal about 30 days later.  But the world can get complex and we want to talk about what this new decision means for actual practitioners. Brace yourself, it gets messy. Continue reading →

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Posted on June 5, 2019 by AdminUN

THE ILLEGAL “100% HEALED” RULE

Suppose your agency required employees to be 100% medically fit to do all aspects of the job before it would let them return from sick or FMLA leave.  This rule could apply to feds guarding our borders, incarcerating federal prisoners, or even those who travel around their communities performing a federal function. One result of such a rule would be the employees goes without any compensation or is even fired for an inability to do the job.  That is why EEOC considers agency rules requiring employees be 100% healed or fit top do the job to generally be violating the law.  Check out the attached lawsuit EEOC won against a private employer that imposed such a rule. (See “100% Healed Return-to-Work Policy Leads to $950,000.00 Settlement.”

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Posted on May 30, 2019 by AdminUN

10 THINGS TO DO AT FORMAL MEETINGS

Unions make serious mistakes when they fail to cover every formal meeting in their unit or when they fail to train their stewards in how to tap the full potential value of these meetings. A good argument can be made that these meetings are more strategically important to the growth and strength of the union than grievance meetings or bargaining sessions.  Here is why we say that and how to get the most out of these meetings. Continue reading →

Posted in Formal Discussions, Membership Building | Tagged | Leave a comment

Posted on May 30, 2019 by AdminUN

PROBATIONER REINSTATED BY EEOC

At the time of events giving rise to this complaint, Marquis was a probationary employee working as a Shipfitter Apprentice in the Norfolk Naval Shipyard (NNYS or Shipyard) in Portsmouth, Virginia. Continue reading →

Posted in Probation Period, Race | Tagged | 1 Comment

Posted on May 23, 2019 by AdminUN

FORBES MAGAZINE AGREES WITH FEDSMILL

Earlier this month we felt it important enough to remind readers that the EEOC and the U.S. Courts are putting a lot of pressure on employers to stop using phony-baloney, non-specific, smoke-and mirrors rating criteria to make personnel decisions. So, it was nice to see Forbes Magazine post a piece of its own yesterday making the same point. Check out their article entitled, “U.S. Courts Crack Down On Employers Using ‘Slippery’ Criteria To Hide Discrimination.” It backs up what we said and with the weight of the Forbes folks behind it should help push employers to move toward more objective decision-making factors.

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Posted on May 23, 2019 by AdminUN

WHAT IS AN FMLA “QUALIFYING EXIGENCY”?

The very loose answer is that it is a near emergency situation where the employee is entitled to FMLA time-off.  But the folks at the JacksonLewis law firm have put together a more complete answer that is worth sharing with employees and union reps.  Check out “What Am I Doing Wrong?? Common FMLA Mistakes,” edition 23. It never hurts to know more about your rights on the job.

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Posted on May 8, 2019 by AdminUN

HOW HERITAGE HURTS UNIONS

No, we are not talking about the Heritage Foundation, which often lines up against union interests. At least not yet. The kind of heritage this piece takes aim at are all the attributes of a union that accumulate over the years to make it what it is today.  As negotiations in the federal sector gets more and more sophisticated, unions should expect that agencies are going to focus on these things to push back against union bargaining demands.  After all, why should an agency listen to a union’s demand that it discipline fairly, compensate justly, or make objective personnel decisions if the union does not do the same?  Working as the chief negotiator for a hypocritical union is not a position of strength in modern bargaining circles. Consequently, it is time that unions look around at their own governance as well as personnel policies and practices to see what must change to strengthen their demands on agencies.  If for no other reason they should do it because agencies are starting to do it. Here are a few of the most vulnerable areas when it comes time to view constitutions, by-laws, and internal procedures. Continue reading →

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Posted on May 8, 2019 by AdminUN

RATING PANEL GRIEVANCES: WE HAVE SAID IT BEFORE AND HERE IT IS AGAIN

Attacking the scores of a promotion rating panel is hard to do under traditional labor law.  But, if you can find a reason to allege that there was not just a violation of a contract provision, such as the need for all promotion actions to be “systematic and equitable,” but also an EEO violation, you have a better chance of winning the case.  EEO case law requires agency rating panels to carry a burden that most contract grievances do not.  The latest example of this is a case (David T. v. Megan Brennan, Postmaster, EEOC No. 2019001172 (2019)) that resulted in an employee getting retroactively promoted and compensatory damages in addition to back pay. EEOC said the rating panel members “failed to provide any specificity when asked why successful candidates were recommended and why Complainant was not.”  EEOC demands a lot of specificity that contract grievance arbitrators do not.  For example, EEOC wrote … Continue reading →

Posted in EEO/Discrimination, Promotion/Hiring | Tagged | Leave a comment

Posted on May 8, 2019 by AdminUN

WHAT IS THE “INTERACTIVE PROCESS?”

The short answer is that it’s something the agency must engage in to avoid violating the law and incurring huge financial penalties.  The slightly longer answer is that it can often require an agency to bypass or waive its own rules and regulations to help an employee avoid losing his/her job or just some benefit of the job. A complete answer can be found in the new EEOC decision Irina T. v Robert Wilkie, Secretary, DVA, EEOC No. 0120180568 (2019) where an employee with a disability was denied a request for additional leave beyond what FMLA provides. Irina was a … Continue reading →

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