Posted on May 8, 2017 by AdminUN

QUIZ: WHERE IN THE WORLD IS THE REMEDY?

On April 24, 2017 FLRA decided a case where the arbitrator found that the agency had violated the contract when it refused to approve full-time telework for an employee. However, because the employee retired shortly after the arbitration hearing, the arbitrator decided she could not give the employee an effective remedy.  Consequently, she ordered the agency to “review future telework requests consistent with the parties’ collective‑bargaining agreement.”  The agency filed exceptions claiming that the arbitrator exceeded her authority when she imposed a remedy that benefits anyone other than the named grievant.  FLRA agreed.  However, the case presents a “teaching moment.”  What remedy should the union have requested? Continue reading →

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Posted on May 8, 2017 by AdminUN

IS “PROOF OF NEED” REQUIRED FOR INTERMITTENT FMLA LEAVE DAYS?

While it is hard to ever say “never” to a legal question, at least one federal circuit court believes that an employee may not be required to show s/he had an actual need for the leave every time the employee took intermittent leave to care for a sick parent. (Check out this piece from the law firm of JacksonLewis.)  Continue reading →

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Posted on April 25, 2017 by AdminUN

AAGGGHHHH!  THIS MISTAKE HURTS!

We have written about this before, yet still double over with pain every time we see this blunder.  Although we are not going to identify the union or even proclaim that it was the union rather than FLRA that made the mistake, we will say that the latest incident popped up in an FLRA ALJ decision.  The union accused the agency of unilaterally changing the duties of some unit positions and ratcheting up production standards, making it harder for employees to earn high annual appraisal scores.  It was a slam dunk case for the union and FLRA—as opposed to those workload cases where an employee’s burden increases cyclically or due to factors outside management’s control. But here is how it mishandled. Continue reading →

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Posted on April 25, 2017 by AdminUN

BOOKMARK USAFACTS.ORG

There is a ton of data on the various agency web sites that labor-management reps on both sides of the table can benefit from.  We have posted several in our menu bar button “Research Links.”  But useful data can also be found outside the fed sites.  We have always like USA.GOV, which is a kind of Google search engine focused on federal and state government documents.  Now there is a new one that provides more statistical and big picture data. While it probably will not be of use as often as USA.GOV or agency sites, those dealing with agency-wide major policy issues can get a lot of value out of it. It is called USAFacts.org. The data junkies among us will love it.

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Posted on April 25, 2017 by AdminUN

PROBATIONARY WHISTLEBLOWING MANAGER REINSTATED

When a DOD safety officer had the nerve to actually report safety hazards and climb the chain of command ladder to disclose his command was not reporting injuries to OSHA as required by regulation, he got canned early in his probationary period.   His command alleged that he overstated the scope of the danger and overstepped his role as safety manager. Most probationers would turn and walk away thinking it is nearly impossible to overturn a probationary period termination. But not this manager.  He looked into the more than one dozen non-traditional ways probationers can appeal and contacted the Office of Special Counsel which has a decent record of forcing agencies to reinstate probationers terminated in violation of law or regulation.  That turned out to be a good decision.  OSC ordered his termination stayed while it investigates further.  Hopefully, this causes DOD to rethink the wisdom of hammering a safety officer of all people for overstating a workplace hazard.  Would it be better if they all understated the hazards?

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Posted on April 12, 2017 by AdminUN

PETER SUTTON’S VERY HOT POTATO

Peter, the Acting FLRA General Counsel, has a very hot potato in his lap. A case working its way through one of the regional offices stems from the fact that the FSIP ordered an agency to retroactively implement a salary scale increase in a unit where salary is negotiable. The agency has refused to execute the agreement arguing that the FSIP does not have the authority to award back pay for a variety of reasons. Given that the Panel has ordered retroactive salary increases in the past, FSIP clearly thinks it has the legal power to do so and presumably Peter is predisposed to defend that. If he does file a ULP complaint, it will take about two years for the case to work its way through to a final decision from the full Authority and another year if that is appealed to the courts. Assuming an unfair labor practice is found and sustained, the agency will likely owe a bucket full of back pay. However, if the agency’s refusal to execute is sustained, not only does any chance of back pay disappear, but the prospective salary increase the Panel ordered will be delayed for that two or three year litigation period. Employees will lose thousands of dollars they would have had but for the ULP complaint. That raises the question of what is the better course of action for the General Counsel. Continue reading →

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Posted on April 12, 2017 by AdminUN

SSA SCHEMES TO SCREW SENIORS

EEOC just found that several offices of the Social Security Administration have been scheming to exclude employees over the age of 40 from moving into jobs with higher career promotion.  EEOC not only gave eight employees between the ages of 40 and 52 retroactive promotions, but also seriously undermined the agency’s ability to pick selection criteria out of thin air in the future—as most agencies think they have the right to do. Here is how the SSA scheme worked. Continue reading →

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Posted on April 4, 2017 by AdminUN

SAY “THANKS, BUT NO THANKS” TO BACK PAY FROM FSIP OR INTEREST ARBITRATORS- Part 2

Less than a month ago we posted an article warning the parties, but particularly unions, about the potential problems with asking the Panel or interest arbitrators to make a salary increase retroactive.  An imposed retroactive pay increase appears to be highly vulnerable to being overturned on appeal.  That could mean not only that the union would lose the imposed retroactive lump sum, but also delay implementation of the prospective pay increase part of the impasse order.  Millions could be lost if the union did not deal with the situation strategically—and correctly.  Given the importance of this issue, we have dug a little deeper than the first posting. Although the FLRA has not yet squarely addressed whether the Panel or an interest arbitrator can order that a negotiated salary increase be retroactively implemented, the Comptroller General (CG) has often. Once this issue gets before the Authority it is likely CG case law precedent will at least be considered. (See NWS and NWSEO, 69 FLRA 256 (2016)) And that means the parties bargaining over salary increases should too. Continue reading →

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Posted on April 4, 2017 by AdminUN

AFGE DEFIES THE MEMBERSHIP GROWTH ODDS

The Congress has severely restrained agency funding for years, which should mean that unions are finding it harder and harder to add more members. But AFGE has not only managed to beat the odds against growing again this year, but it has now extended its streak to 15 straight years of having more members than the year before. That is unprecedented in the federal sector and a tribute to the foresight, long range planning, and risk-taking boldness of its national leadership. AFGE just posted its latest LM-2 on the DOL.gov website showing that it grew by 6,500 total members to over 325,800 members.  It not only replaced all the members who retired, left government or moved into management, but it also reached new heights of success. A lot of experienced union leaders would argue that the single most important metric for measuring the success of a union is its membership growth.  If it is high and/or is on a long-term growth path that is about a sure a sign as one can get that the union is doing what the bargaining unit employees value.  In contrast, even if a union wins almost all its cases or banks tens of millions in surplus funds, is it really successful if the unit employees don’t continue to join in higher percentage? AFGE has membership problems like any other union, e.g., some locals that are unable to sign up more than 10% of the unit employees.  But its bottom line buys it time to solve that problem as well. (We also have to give a tip of the hat to NATCA that also just reported its fifth year of membership growth reaching a record high level of employee support.)

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Posted on March 31, 2017 by AdminUN

HE JUST PUT THE “WHOOF” IN BARGAINING

You gotta love political appointees.  Some of them are just so damn much fun to watch. We opened the Washington Post recently to find that Ryan Zinke, the new “top dog” at Interior has decided to let employees bring dogs to work. It is not an insane idea.  After all, employers and businesses have been required to allow folks with certain disabilities to bring comfort dogs with them wherever they go, and lots of airlines let you fly with your dog if it can fit under the seat. But can you imagine what the cat lovers of the world are feeling right now about Zinke’s disregard for the feline class?  And don’t even get me started on the “forever friends of ferrets” fanatics.  If Fido can walk the grand halls of the Interior department, why can’t my weasel squirm its way into and out of someone’s drawers and seek the warming comfort of the office copier while I work with enhanced comfort? In any event, now that this “condition of employment” has been firmly established at Interior unions can use their mid-term right to initiate that NFFE firmly established for them and submit proposals for their own bargaining unit offices. Which pets will be allowed? Which species will get the best days of the week? Who cleans up after them? What about the employees who are allergic to the species du jour? Does a pet need a shot record to get past the metal detectors? Who is liable if someone gets bitten? Will the cafeteria stock the right chow for my ferret?  It prefers things that crawl and put up a fight, e.g., an injured mouse would be perfect.

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