Posted on April 4, 2018 by AdminUN

NEGOTIATORS, DON’T MAKE THIS MANAGER’S MISTAKE

Here are the facts. The union asked to negotiate over a proposed agency mid-term change.  The parties met a few times to negotiate over the topic and the management rep let the union know that he would really like it if the union would drop an unrelated grievance.  As they got close to a deal, the manager again brought up the grievance and told the union he would not enter a final deal until it withdrew this one grievance that was really bugging him. His precise words were that he “had no incentive to bargain” so long as the grievance was still active. Consequently, they never signed a deal and the proposed change was implemented.  The manager’s error was to refuse to continue to bargain unless the union took care of an unrelated issue.  But the legal logic behind that is more complicated than that.  Here is how FLRA explained it. Continue reading →

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Posted on April 4, 2018 by AdminUN

GRIEVANCE QUIZ: ALMOST PERFECT EXCEPT FOR …

Below is a hypothetical grievance inspired by one that actually went to arbitration and FLRA. The union lost on a technicality in both forums. See if you can spot the error before we reveal the answer. Continue reading →

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Posted on March 26, 2018 by AdminUN

$300,000 FOR A DENIED REASSIGNMENT

Employees almost never have the right to demand a reassignment to a different supervisor, job or location.  But if the employee has a disabling condition for which a reassignment would be a reasonable accommodation, the employee may have a legally enforceable right to the reassignment.  Here’s how. Continue reading →

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Posted on March 26, 2018 by AdminUN

HOW TO AVOID THE “EXCESSIVE INTERFERENCE LITE” TRAP

Now that Trump’s two operatives on the FLRA have made clear their intention to weaken unions and collective bargaining, unions would be wise to counter the pending onslaught of precedent-trashing decisions from these two. One way they can do that is to write grievances to undermine the impact of the Kiko-Abbott scheme to overturn more arbitration decisions.  We believe it will benefit both labor and management to focus on what the revised grievance will look like.  So, we have drafted one below that addresses the hypothetical situation of an agency apparently deciding to deviate from the clear language of an agreement clause dealing with the equitable distribution of overtime assignments. The draft is annotated with footnotes/endnotes that explain why certain passages are included. Given that FEDSMILL does not provide legal advice, union leaders should check with their attorneys before using this model to ensure that it conforms to their own contract and to see if the attorney has suggested improvements. However, if the attorneys tell you that detailed grievances like this alleging contract and statutory violations is not needed at all, get a second opinion.  Given that Kiko and Abbott appear to be primarily motivated by politics and anti-union animus, the best way unions have to push back is to rely on the subtle counter-tactics embedded in the statutory scheme that only a seasoned actual practitioner of labor-relations, who respects the value of collective bargaining, is likely to know.  For our part we will try to outline how to respond to Kiko-Abbott decisions as they come spitting out.  Continue reading →

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Posted on March 22, 2018 by AdminUN

MADAME CHAIR, MEET MR. NEWTON

Sir Isaac Newton that is. We are suggesting this hook-up because you and your fellow Trumpian traveler seem to have forgotten about his third law of motion, namely, that for every action there is an equal and opposite reaction. Over the years we have noticed that political appointees from the House of Heritage-Koch all arrived thinking they would trash a few dozen FLRA legal precedents and everything would turn out the way they and their sponsors wanted. But, in the end, all they generally managed to do was to create a lot of costly L-M conflict with little substantive change and increasing amounts of procedural complexity. They wrongly assumed that the L-M parties would not adjust to get around their often vacuous attempts to make “Labor Relations Great Again” or something like that, e.g., such as you inventing the criterion that arbitrator penalties now have to be reasonably and proportionately related to the contract. (AFGE, 70 FLRA 398) Continue reading →

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Posted on March 22, 2018 by AdminUN

CONGRATULATIONS, VELVA! YOU HAVE JUST WON 12 YEARS OF BACK PAY PLUS …

These employees getting a decade or more of back pay for standing up for themselves must feel like the “Publishers Clearing House” van just backed into their driveway. The latest “winner” is Velva from the Postal Service. She filed a class action EEOC complaint on behalf of all injured-on-the-job employees who were working in limited-duty or rehabilitation assignments. She took offense when the agency initiated a sweeping medical inquiry to validate that they were still unable to return to full duty. One of the great benefits of being a fed is that the employee can almost always claim back pay starting six years before his/her complaint or grievance was originally filed no matter how long it takes to win the case. While it is certainly legitimate for agency’s to try to keep job injury costs down, … Continue reading →

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Posted on March 17, 2018 by AdminUN

NFFE ARBITRATION WIN IN THE TIME OF #METOO

Although there has been a seismic shift on the media’s and public’s willingness to believe and support those reporting sexual harassment, it will be a while before we know how the #Metoo mindset is impacting accused employees defending themselves. NFFE just clobbered the U.S. Forest Service with some highly skilled legal representation of a member, winning reinstatement, back pay, interest, and attorney fees. It is just one case, but it is a vivid example of why Forest Service employees need to join and support their union.     Continue reading →

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Posted on March 17, 2018 by AdminUN

ARBITRATOR’S ALERT: FLRA BUILDS A BIGGER TRAP FOR ARBITRATORS

President Trump has installed his two operatives on the FLRA and they have set about deciding what they consider to be “fake law.” Among their first moves was to make it easier to overturn arbitration awards—unless arbitrators write them a certain way. Here are the legal background, the simplified facts of the case (70 FLRA 398), the new FLRA rules, and the workaround. Continue reading →

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Posted on March 8, 2018 by AdminUN

YANKING OUR YO-YOS: ABROGATE AT ALL V. EXCESSIVE INTERFERENCE V. ENFORCEABILITY

As Kiko and Abbott pointed out in their recent decision terminating the “abrogate at all” arbitration review test in favor of a watered down excessive interference test the FLRA has modified the test in its four decades of operations at least half a dozen times. (AFGE, 70 FLRA 398) To put it more bluntly in terms that actual practitioners of day-to-day labor relations use, the Authority has once again yanked us around like a yo-yo, changing the rules and probably ushering in another half-decade of uncertainty and litigation.  Now, every time a LR manager loses a contract interpretation or application case, s/he will not be able to advise the principal agency executive with certainty  whether to appeal or to pay out before liabilities grow even higher.  Before Kiko and Abbott decided to mark their territory at least the parties could look to six or so years of case decisions as benchmarks. Given that the two political views of the statute are likely to continue bouncing back and forth over whether abrogation or interference is the right approach, we want to suggest a third approach that has benefits for both sides of the bargaining table. Continue reading →

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Posted on March 7, 2018 by AdminUN

WANT TO WORK AT HOME AS A REASONABLE ACCOMMODATION?

Back on January 2014 we wrote about an employee’s potential right to work at home if s/he otherwise qualifies for a reasonable accommodation. The post was entitled, “Want to Telework as a Reasonable Accommodation?” and provided a guide for union reps to make solid arguments in support of an employee’s request and for ER/LR specialists who have to make decisions on such requests. But there is a brand new decision out of the Sixth Circuit U.S. Court of Appeals that adds even more clarity to how one determines whether to grant the accommodation or not.   Continue reading →

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