Posted on June 20, 2017 by AdminUN

FLRA BOOSTS TELEWORK REMEDIES 

Few things are as frustrating as winning a grievance, arbitration or ULP only to find that the sole remedy imposed is an order that management not violate the law or contract again.  FLRA claims that remedies should “restore, so far as possible, the status quo that would have obtained but for the wrongful act,” and that they should be chosen in part as a “deterrence of future violative conduct.”  Even the courts have talked tough about remedies, “An approach to remedies that systematically fails to deter non-compliance, or dilatory compliance, with the Statute’s directives is fundamentally at odds with the Authority’s responsibilities. . .”  Continue reading →

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Posted on June 20, 2017 by AdminUN

CHALLENGING PROMOTION NONSELECTION DECISIONS

If you have followed us over the years you know that we believe that one of the most effective ways to challenge a promotion decision is through the EEO charge process. If the selectee is in a different protected class than you, e.g., gender, race, age, national origin, disability status, etc. and you think you were better qualified for the job, FILE, FILE, FILE.  At worst, you still won’t get the job. At best, you will get it with some retroactive pay and a few thousand dollars of compensable damages.  Even if you wind up somewhere in between those two results there are a lot of very good options there too.  A very recent EEOC decision out of Homeland Security highlights one way to win these cases. Continue reading →

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Posted on June 20, 2017 by AdminUN

WHY FIRE PEOPLE THIS WAY?

There are zillions of stories about former FBI Director James Comey these days, but we haven’t seen one yet analyzing the method used to fire him.  That is what LR/ER practitioners on both sides of the table should be studying for some lessons learned.  Comey was a long-term, high level, well-respected official with a long string of achievements and friends in government.  He was an organizational star by any measure, although hardly politically perfect.  When it is time to remove people like that from their jobs there is a well-known routine in Washington that permits them to leave with dignity and avoid creating an enemy for life.  The person doing the firing has the integrity and class to tell them to their face, they are given some formal award or recognition, perhaps even given or promised another job, and sent away with best wishes that they can spend more time with their family after sacrificing so much over the years.  Continue reading →

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Posted on June 7, 2017 by AdminUN

FSIP, YOU’RE FIRED!  LET THE BLUE LIGHT SPECIALS BEGIN.

The President did what he does best and fired all seven members of the FSIP. It is not a surprise.  His predecessors in office did the same thing. It is patronage and political control at work.  The first thing to watch for is how long Trump leaves the jobs vacant because once a union petitions the Panel to resolve an impasse the agency cannot implement the proposed change, absent very limited exceptions.  If Trump leaves the jobs open for a year, he will effectively be tying the hands of agency managers seeking to make changes to support the new Administration. The next thing to watch for is who he puts in the jobs and what they immediately do.  We are betting it is another appointee from the Heritage Foundation like it was in the last Republican administration.  In fact, we will not be surprised if it is Becky Norton Dunlop herself who led the George W. Panel to finding against unions in about 90% of the cases by our best estimate. We also expect the new Panel will stop letting parties use private neutrals to arbitrate their disputes, which has kept things moving quickly during the Obama years.  Control over all cases will likely be centralized in the new Chair by requiring the full Panel vote on everything. Continue reading →

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Posted on June 7, 2017 by AdminUN

PIZZELLA ON THE CONDUCT OF UNION REPS

Over time the Authority has offered practitioners a reasonably workable, four-factor criteria for finding the balance between a union rep’s behavior that the Statute protects, and misconduct that impinges upon the agency’s right to maintain order. We’re talking about when the union rep calls a supervisor names and management tries to discipline the rep.  FLRA has instructed parties to examine (1) the place and subject matter of the conduct; (2) whether the conduct was impulsive or designed; (3) whether the conduct was in any way provoked by the employer; and (4) the nature of the intemperate conduct. The decision turns solely on the facts of the specific incident, and the rep’s misconduct must be flagrant if it occurs while s/he is engaging in protected activity. Continue reading →

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Posted on June 7, 2017 by AdminUN

DON’T DO THESE BACK PAY DEALS

Not long ago we posted two pieces about how the FSIP and interest arbitrators do not appear to have the right to order new compensation provisions be retroactively implemented.  See “Peter Sutton’s Very Hot Potato,”  “Say ‘Thanks, But No Thanks’ to Back Pay From FSIP or Interest Arbitrators- Part 2” and Part 1 of that article.  Since then we have been asked whether an agency and union can agree on their own to a compensation-generating clause being retroactively implemented.  While we will all have to wait for the Authority and/or courts to resolve the case making its ways through the FLRA ULP process now to get a definitive answer, Fedsmill believes that neither the Panel nor arbitrator can—unless they comply with the Back Pay Act. Continue reading →

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Posted on June 7, 2017 by AdminUN

EEOC REAFFIRMS THE AGE DISCRIMINATION STANDARD OF PROOF

What does an employee have to prove to win an age discrimination case?  Does he have to show that “but for” a discriminatory act he would have received the promotion or other benefit he applied for?  That is what the Supreme Court requires in the private sector.  Does it have to prove that age was a “substantial or determinative factor? EEOC just reminded us in an article entitled , “Age Discrimination: An Overview of the Law and Recent Commission Decisions” that federal employees do not have to meet either of those standards.  (See the article at the end of its March 2017 Digest.)  All a federal employee need prove is that age was “a factor” in the personnel decision.  For example. … Continue reading →

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Posted on June 3, 2017 by AdminUN

FMLA: WHAT ARE YOU DOING WRONG?

If you work the union’s FMLA cases or process them in HR then we recommend you keep up with the JacksonLewis series entitled, “What Am I Doing Wrong?  Common FMLA Mistakes.” While it is written to advise employers, union reps can’t help but benefit as well.  In fact, contract negotiators should look over all eight posts in this series to date when drafting and/or revising the3ir own FMLA articles.

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Posted on June 3, 2017 by AdminUN

WHEN NOT TO GRIEVE WIGI DENIALS

In virtually every other situation, the rule of thumb is that the deadline for filing a grievance begins to run when the agency issues its written decision. But not when a WIGI is involved–and not knowing the WIGI rule  cost one employee a lot of back pay. Continue reading →

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Posted on June 3, 2017 by AdminUN

PIZZELLA ON BONDAGE

Back in 1997 the Authority declared that it favored automatically including employees in existing bargaining units if they shared a community of interest. It saw no need to force agencies and unions to undergo the multi-year costs, stress and litigation of running an election each time the agency hired new employees to do the same or similar work other unit employees were doing. Since that decision, three Republican appointees have joined in not only applying the law of that case, i.e., Cabaniss, Armenderiz and Beck, but expanding it to situations where an agency action places employees in a new organizational or geographic entity. (Before that, Applewhaite (5 FLRA 97) , McGinnis (17 FLRA 183), Mahone (14 FLRA 174), and McKee (39 FLRA 96), all Republican appointees, supported the earlier FLRA accretion positions that date back to the Executive Orders that Nixon signed.)  As a result, there are now about 30 cases applying the 1997 case, i.e. Ft. Dix, 53 FLRA 287, with about an even split between decisions supporting an accretion based on the facts and those opposing it. Member Pizzella, however, thinks everyone got it wrong over the five decades and he knows what they should have decided. Continue reading →

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