Posted on February 22, 2018 by AdminUN

PANEL COVERS OVER ILLEGAL MANAGEMENT MANEUVER

FSIP is quickly stacking up examples of its extreme bias on behalf of management.  Its latest stunt was to cover up, gloss over, steer around, compensate for, etc. an open and shut agency violation of law.  FSIP wrote in its decision, “Throughout a portion of the parties’ negotiations, Management offered a transition MOU that largely mirrored the Union’s proposal as part of its final offer with little controversy.” But the agency then withdrew the proposal when FSIP took over the case. The proposal in question would have established a transition period for employees to meet newly established physical fitness goals before they were considered unable to perform the duties of their jobs and terminated. That was an open and shut case of illegal regressive bargaining, but that barely bothered the President’s appointees. Regressive bargaining occurs when a party withdraws a proposal from the table and replaces it with something worse for the other party without a good explanation.  “A party’s withdrawal of a tentative agreement or a previous proposal, without good cause, is evidence of bad faith bargaining, but withdrawal does not establish per se an absence of good faith.”, Army and Air Force Exch. Serv., 52 FLRA 290, 304 (1996).  See also Chicago Local No. 458-3M v. NLRB, 206 F.3d 22 (D.C. Cir. 2000).  Continue reading →

Posted in FSIP | Tagged | Leave a comment

Posted on February 22, 2018 by AdminUN

WHY DOESN’T FSIP GET IT ABOUT DECISION FALLOUT?

One of our continuing beefs with the Panel is that it regularly fails to consider the long-term fallout of its decisions. For example, it recently rejected a union proposal that assignments to long-term travel TDY be given to the least senior employee when ”… there are two or more employees equally qualified for the assignment and there are no volunteers.” The Panel employee chose instead this agency proposal, “the decision to assign an employee to long-term TDY will not be based on criteria unrelated to mission.” The Panel chose the agency’s offer because the union failed to demonstrate a need for its rule and because it thought that management should have the discretion to select an employee with specialized skills and experience. Let’s put aside the fact that the union’s proposal allowed management to consider specialized skills and experience when determining qualifications, and focus on what can happen next when management tries to implement this clause. Continue reading →

Posted in FSIP | Tagged | Leave a comment

Posted on February 13, 2018 by AdminUN

WHEN PAST PRACTICE TRUMPS CONTRACT LANGUAGE

What do you do if management suddenly announces that despite following a certain past practice for years, which obviously conflicted with the contract language, it is now pronouncing the past practice dead and insisting the parties immediately follow the clear and unambiguous contract language in the future? The first thing you would do is figure out whether you want to object, and if you do the second thing would be to read the newly issued decision AFGE, 66 FLRA 963 to refresh your recollection of how the law treats those situations. Continue reading →

Posted in Bargaining, Past Practice | Tagged | Leave a comment

Posted on February 13, 2018 by AdminUN

HOW TO PROVE DISCRIMINATORY PRETEXT

Once the agency puts forth its explanation for why it made the decision the employee considered discriminatory, e.g., a promotion, a reassignment, a suspension, etc., the employee is expected to prove that the explanation is pretext or not worthy of belief.  There are thousands of EEOC and court decisions ruling on what is and is not proof of pretext.  So anyone involved in EEO complaints can either read and remember all of those decisions or develop a short, handy list of the most common ways to prove the agency’s explanation is pretext. We came across what we think is a very good list of them in a law firm’s power point presentation and thought you might want to use it as your own or to start building an even longer list of you own. You can add it to similar list we posted in “EEO Cheat Sheet.”

Posted in EEO/Discrimination | Tagged | Leave a comment

Posted on February 13, 2018 by AdminUN

WHAT IS THE ANSWER TO THIS OVERTIME PROBLEM?

Practitioners on both side of the table come up against the following facts. The agency wants to keep overtime costs down. So, it decides to have its first line supervisors start doing what is universally recognized as bargaining unit work during the normal eight hour day and then give the supervisors comp time after the eight hour day to do the supervisory work they did not get done.  For example, assume the scheme works and the agency cuts out all bargaining unit overtime, which had amounted to about 100 hours a month for the last year. Does the union have a way to stop this and get paid for the overtime the supervisors took?  Does the agency have any liability? Continue reading →

Posted in Overtime, Quiz | Tagged | Leave a comment

Posted on February 8, 2018 by AdminUN

EEOC REAFFIRMS RIGHT TO ACCOMMODATION REASSIGNMENTS

It seems like every day we check this Administration has taken away one employee right after another.  So it was comforting to see the new EEOC decision reconfirming a disabled employee’s reasonable accommodation right to a reassignment if s/he can no longer perform the duties of his permanent position. The Commission outright stated, “As Complainant could not be accommodated in his current position, we find that the Agency, absent undue hardship, was obligated to consider reassigning him to a different position, consistent with the Commission’s regulations noted above.” When the agency did not so in this case,… Continue reading →

Posted in Disability, Reassignments | Tagged | 1 Comment

Posted on February 3, 2018 by AdminUN

DOES FSIP’S OFFICIAL TIME ORDER VIOLATE THE LAW?

FLRA has ruled a number of FSIP decisions illegal and unenforceable. Usually, it is because the Panel-imposed language violates management 7106(a) rights. (See Note 1 below). But that is not the only example of how the Panel can act illegally, and it appears we just saw another with the issuance of U.S. Dept. of Agriculture, Rural Development, and AFSCME, Local 3870, 2017 FSIP 06 (2018). The impasse issue the parties brought to the Panel was how much official time the union rep should receive each week. The union wanted three days a week while the agency was only offering two, which was what the last contract provided. Consistent with the Panel appointees’ lack of any qualifications as neutrals, the Panel decided to give the union rep only one day a week. But is that legal? It seems to us that it is not for a few reasons. Continue reading →

Posted in FSIP | Tagged | Leave a comment

Posted on February 3, 2018 by AdminUN

LABOR RELATIONS AND GUN CONTROL

Does an agency have the right to decide when its law enforcement personnel can carry their weapons while off duty?  For example, can the Dept. of Army deny its law enforcement personnel who are armed while on the job, the right to carry off the job until they have been in the job for five years? Nope, or at least that is what the Office of the Special Counsel got DOD to accept. Continue reading →

Posted in Law Enforcement | Tagged | 1 Comment

Posted on January 22, 2018 by AdminUN

PRESIDENT PUNISHES NONUNION EMPLOYEES

One of the great benefits that unionized federal employees have is that they can appeal any disciplinary action to a neutral arbitrator–from a written reprimand to a removal. In addition, unionized employees can get a decision as fast as the parties want their arbitration process to move, usually between 6 and 12 months beginning to end. The law gives unionized employees the arbitration option on top of the right to appeal the more serious disciplinary actions, such as suspensions of more than 14 days, demotions, involuntary reassignments, coerced retirements and removals, to the Merit System Protection Board (MSPB). Almost all federal employees can appeal to MSPB. For decades federal employees relied on their access to MSPB when deciding whether they needed to unionize and undoubtedly some voted against unionizing because they had that protection.  Well, the President just rewarded those feds who have not unionized by essentially voiding their right to appeal any adverse action. Here is how he did it. Continue reading →

Posted in MSPB | 2 Comments

Posted on January 22, 2018 by AdminUN

WHEN IS UNILATERAL IMPLEMENTATION LEGAL?

If you are a union rep and think the only time an agency can unilaterally implement a mid-term change is when there is an emergency, you are woefully unprepared to lead a bargaining team and your members are in great jeopardy.  If you are an LR Specialist and think the same thing, you are missing many, many opportunities to legally unilaterally implement a change and very poorly serving your agency. We recently saw all 15 situations in which an agency can unilaterally implement a midterm change explained in one training class by LearningEverywhere. Like all their collective bargaining training, it was a class designed for practicing bargainers.  It pulled together the many unrelated legal decisions of the courts and FLRA into an easy to use list identifying each situation and providing the legal criteria necessary to invoke each.  It also addressed what unions can and are likely to do to respond.   Continue reading →

Posted in Training | Leave a comment