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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Posted on May 20, 2017 by AdminUN

WHAT IS A PROPHYLACTIC PROPOSAL?

It is not only something union negotiators can use to protect members from the adverse effects of a management intrusion into their lives, but also something the FLRA endorses.  (This is a republication of a piece first posted in July 2012) Continue reading →

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Posted on May 20, 2017 by AdminUN

PIZZELLA POISED TO CREATE CHAOS

Brace yourself if you have anything to do with federal sector labor relations. Pat Pizzella, the Acting Chair of the FLRA and presumptive heir to the chair, is about to rattle your world like a snow globe. If you have studied his many, many, many musings, you know that he disagrees with at least two dozen long-established, labor law precedents that evolved from thousands of FLRA decisions, about a hundred circuit court appeals, and a handful of Supreme Court rulings. He apparently believes he knows better than all those people who played a role in shaping today’s LR arena—and yes that is what the word “hubris” is about. All he need do now is convince a certain self-obsessed, bottle-blond, combed-over, purveyor of luxury meats to appoint him a robot buddy from the binders of them kept over at the Heritage Foundation in trust for the likes of the Koch Bros, Breitbart, and Bradley Foundation. Then, the chaos can begin as precedents are thrown overboard, various circuit courts remand, reverse or uphold those revisionist rulings, the Supreme Court has to step in to referee, and the parties make adjustments to avoid the things they do not like.  Below are the labor law areas where “The Pizz” wants to force the machinery of government to restructure simply because he thinks that would be keen—and/or please his political benefactors—no matter what the cost to government. Our plan over the next few weeks is to focus on each of these areas to get practitioners ready for another period of “all-litigation-all-the-time” labor relations like Dale Cabaniss spawned and point out how they can contractually insulate themselves from the ego-fueled, decisional roulette that lies ahead at the hands of the Authority’s chief croupier. Jack Abramoff’s former associate has come a long way from his days as just a Koch Brothers groupie.   Continue reading →

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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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