Posted on March 8, 2017 by AdminUN

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

Few things make a union negotiator and members as happy as a Panel order that makes a pay increase retroactive. A fistful of cash relieves a lot of membership frustration with management. But as with so many good things, this also may be too good to be legal. Consequently, unions should think twice before exerting effort and bargaining chips inviting a Panel member or private interest arbitrator to order retroactivity. Panel orders can be challenged via agency head review and as detailed below there is a whopper of a legal argument available to agencies that does not seem to have been raised until recently. Continue reading →

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Posted on March 8, 2017 by AdminUN

TSA IS A VERY BRIGHT SPOT FOR ORGANIZED LABOR

There is not a lot of good news about unions these days. Last week 75% of the employees in Boeing’s South Carolina plant voted against unionizing and membership continues to decline in too many other unions despite the fact that they have tens of thousands of nonmembers in bargaining units they already represent. So, we can all benefit from the good news coming out of AFGE’s Transportation Security Administration (TSA) unit. Continue reading →

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Posted on March 8, 2017 by AdminUN

CLONING THE STATUTORY RIGHT TO BARGAIN—A PLUS OR MINUS?

While the statute gives unions the right to bargain over conditions of employment, FLRA has also recognized that the parties can create an additional contractual right to negotiate. Generally, they do this when drafting an agreement article dealing with the union’s right to be notified of mid-term changes and bargain. Those provisions often paraphrase the statutory right to bargain because the actual language of the statute is too legalistic to drop into a collective bargaining agreement as is. But is adding a contractual right to bargain to the existing statutory right a plus for the parties or not? Continue reading →

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Posted on February 22, 2017 by AdminUN

THE “HEBREW SLAVE” COMMENT

An employee and her supervisor were communicating via e-mail when the employee commented that federal employees generally work shorter hours than private sector ones. The supervisor responded, “Wow,… then I must be a damn fool…cause I’ve been working like Hebrew slave the last 9 years and don’t have enough time to take off…at least somebody got it right.”  The employee was offended and soon filed an EEO charge alleging she had been subjected to religious harassment when the supervisor made that comment.  The manager claimed it as a joke.  But, the EEOC Administrative Judge… Continue reading →

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Posted on February 22, 2017 by AdminUN

CAN FLRA STAY IMPLEMENTATION OF A FINAL AND BINDING FSIP ORDER?

Yup! It can and it has, even though it is extremely rare.  The Authority, or at least the Carol Pope Authority, covered the process in an IFPTE decisions issued in October 2016. (See IFPTE, Local 4 and Dept. of the Navy, 70 FLRA 20 (2016))  The Panel had decided a dispute over floor plans and cubicles, largely opting for the employer’s proposal.  The union responded by asking the Authority to stop implementation.  The Authority wrote that it “is empowered to stay Panel decisions in very narrow circumstances.” But, it went on to explain that generally it will only do so if the Panel has “ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained.” Exceeding its power to address negotiability disputes as spelled out in Carswell is a good example of when this might be appropriate. The Authority found against IFPTE here because it did not meet that standard.  There is nothing in this decision or elsewhere stating that this is the only way to challenge a final Panel order because one party believes an imposed provision is non-negotiable.  That party could always refuse to execute the agreement, the agency head could disapprove the provision in review, or the union could refuse to comply with it.  However, the most interesting part of this decision was tucked away in footnote 88. Continue reading →

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Posted on February 11, 2017 by AdminUN

LAW FIRM UPDATES FEMALE CBP OFFICERS ON THEIR PUSH-UP LAWSUIT

Customs and Border Protection (CBP) established a push-up requirement for its law enforcement officers.  It is unclear whether they pulled the number of push-ups required out of thin air or from professionally developed study establishing a verifiable job-related connection between the number required and success in the job.  Well, over time a significantly greater number of women failed to meet the push-up standard than men.  That resulted in women losing out on the job more often than men due to this requirement.  At some point, an employee or two decided to push back against CBP and found a law firm that would represent her and all women who were similarly denied the job during the probationary period. That firm has decided this case is significant enough that it is posting on its web site all the important documents in the case so that these women can keep up with developments. Check out EEOC’s preliminary decision approving the firm’s ability to deal with this as a class action.

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Posted on February 11, 2017 by AdminUN

ARE THE DISABLED ENTITLED TO REASSIGNMENTS?

We have kept an eye on what the EEOC and courts are doing with the right of a disabled employee to demand a reassignment to an open position as a reasonable accommodation. EEOC has not waived from its insistence that they do have some level of right to the open job if otherwise qualified. Four years ago we reported on a case out of one federal circuit court that agreed with EEOC. See “Another Right to be Reassigned.” Now another circuit court has taken the opposite position. See the Jackson-Lewis article entitled, “Appellate Court Holds that ADA Does Not Require Reassignment Without Competition.” Stay close to competent legal counsel if you get involved in a disabled employee’s request for a reassignment. 

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Posted on February 11, 2017 by AdminUN

ANOTHER FLRA FUBAR?

What’s a “FUBAR?” It is shorthand for pronouncing something “Fouled Up Beyond All Repair,” although there are more verbally assertive versions. We use it to label those MSPB and FLRA cases that screw up the lives of LR practitioners by making day-to-day operations more complicated and risky rather than less. On the brink of the holiday season peak the FLRA appears to have gifted us with another one in AFGE, Local 1698 and Naval Supply Systems Command, Pennsylvania, 70 FLRA 96 (2016). Continue reading →

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Posted on February 2, 2017 by AdminUN

AN ADVERSE ACTION GUIDE

While we hope that no one on either side of the table has to deal with too many adverse actions, we know at least a few of you do a dozen or more oral replies and full hearings a year involving them. By this time you probably know a lot about the process, but then again maybe there are a few things you missed. So, you might want to check out MSPB’s “Primer.” Among our favorite sections are the following:

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Posted on February 2, 2017 by AdminUN

THE CROWN OF THORNS CASE

Some people put religious objects in their cubicle or office. Maybe it is a crucifix, mezuzah, kirpan, inverted pentacle, mandala, or rune. But we have to admit that we had never heard of someone putting an actual crown of thorns in her cubicle.  When one employee did in the notoriously conservative Christian community of Colorado Springs it apparently freaked out some of her co-workers who kept religious objects of their own on the desk.  They allegedly complained to the management that the crown said something about the woman’s mental stability and they were worried it could be used as a weapon. In any event her managers asked her to remove the crown and the employee filed an EEO charge alleging religious and disability discrimination. Continue reading →

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