Posted on September 23, 2016 by AdminUN

WHAT IF A CO-WORKER GETS YOU FIRED?

Aside from hopefully momentary thoughts of physical revenge in the extreme, the average person may not realize that a childhood fable about a cat and chestnuts figures prominently in the answer. Have you heard of “Cat’s Paw” cases? We hope so because we have written about them before, e.g., “Another ‘Cat’s Paw’ Discrimination Victory.” But if you are new to our group of readers or have the memory retention problems like we have, then a brand new case out of the Court of Appeals is a great refresher and a breath of fresh air that expands an employee’s protection under the “Cat’s Paw” theory. Continue reading →

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Posted on September 23, 2016 by AdminUN

WHEN EMPLOYEES HAVE SEIZURES

Whether a fed’s job involves driving, operating equipment or enforcing the law, seizures create serious, if not life-threatening, risks for the employee, co-workers, employer and public. So, what choice does an employer have when an employee informs it that s/he is having seizures and would like to be moved to a different position indefinitely until s/he can get them under control or given a leave of absence until they are controllable. Assume the employee is newly hired, still in a probationary period, and not yet eligible for FMLA leave. Continue reading →

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Posted on September 22, 2016 by AdminUN

TEST YOURSELF: HOURS OF WORK {Revised}

In this fictional scenario the employees regularly work from 8 a.m. to 4:30 p.m. processing on-line applications for federal benefits. Each night the headquarters computer center downloads an inventory of cases to each employee’s on-line inventory, employees work those cases the next day, and return for reassignment any unworked cases. At times, the employees are authorized overtime to catch up with the inventory. This particular week, however, something happened at the computer center that prevented it from downloading the day’s work until 10 a.m. each day. As soon as that was discovered on Monday, the supervisor changed employees’ shifts from the normal one to 10 a.m. to 6:30 p.m. By Thursday night the computer center emergency was over, everything was back to normal, and the shift for Friday was 8 a.m. to 4:30 p.m. Can the employees ask for overtime pay? If so, for what hours? And what about those employees who had to take leave because they could not stay past 4:30 p.m.? (For this problem, assume that there is nothing in the collective bargaining agreement entitling employees to overtime in this situation?) Continue reading →

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Posted on September 22, 2016 by AdminUN

WHO IS KILLING THE FEDERAL EMPLOYEES’ GOLDEN GOOSE? {Corrected Version}

[Hint: Shakespeare recognized them early as a threat and recommended their immediate execution.] There is a golden goose tucked away in the federal civil service law that entitles federal employees who win bac­­­k pay for ­­­virtually any reason to also have their attorney fees paid. Almost no other group of employees in this country enjoys that benefit for something as simple as winning a grievance that could pay as little as a single hour of overtime pay unjustly denied an employee. Some other Americans can get their attorney fees paid when they overturn their termination, but even that is a tiny percentage of the country’s workers. Considering that MSPB just reimbursed two federal employees’ attorneys $643,000 IN ATTORNEY FEES for overturning their suspensions that cost the employees $36,000 in salary the attorney fee reimbursement provision is truly a harmed employee’s golden goose. Without it, most federal employees would have to just take whatever punishment or mismanagement agency officials handed out because professional representation would bankrupt their families. So, the answer is that lawyers inside and outside government, or at least some of them, are dosing this goose with bills that are likely poisoning it. Continue reading →

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Posted on September 21, 2016 by AdminUN

WHEN UNIONS GET PIGGISH

If you have read Fedsmill.com for a while we hope the message has come through that we are not unquestioning allies of either unions or management. Admittedly, we started out very pro-union, but we were never “my union right or wrong” folks. Then, we hit a big bump in the road and decided that our commitment is to a reasonable, positive and mutually productive system of LMR—not to either party. We think unions have to be just as responsible as they want agencies to be, and we worry a lot about unions that pursue goals that are unquestionably outside the bounds of reasonableness. They are just begging for Congressman Issa and his oft-deranged posse to ride into LMR town and shoot the place up. A brand new AFGE decision makes our point. Continue reading →

Posted in Overtime, Union Administration | Tagged | 1 Comment

Posted on September 15, 2016 by AdminUN

THANKS, AFGE. GREAT TRAINING IDEA

Maybe it due to its philosophy of inclusion, its values around openness, its bigger-than-all-the-rest-combined size, its enormous occupational complexity, or a few other things. But whatever brought it about it is a good deal for anyone with an interest in the mechanics of federal sector collective bargaining. AFGE has posted a Bargaining Tool Kit that includes some very well done Youtube videos

  • explaining the overarching legal structure of bargaining;
  • clarifying the distinctions among mandatory, permissive and illegal subjects of bargaining;
  • listing the elements of advance notice that agencies must provide before making changes;
  • showing how to avoid the traps in impact and implementation bargaining;
  • debunking the image of management rights; and
  • outlining how bargaining can be a part of two fundamentally different ways to run a union.

Unless you have about three years of almost non-stop bargaining experience under your belt, this is something you want to watch no matter what side of the bargaining table you sit on. We owe AFGE a debt for making this widely available, rather than hiding it behind a members-only filter.  It is a wonderful supplement to the documents that the FLRA General Counsel shop already makes available to those interested in learning about the details of collective bargaining.

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Posted on September 13, 2016 by AdminUN

WHAT IS A GRIEVANCE RECOVERY PERIOD?

The FLRA has said that it “specifically distinguished between contractual back pay recovery periods and contractual time periods for filing grievances.” Consequently, we practitioners had better know the difference, particularly  negotiators when they sit down to write a labor agreement.  Here are a few comments that we think will help them the most. Continue reading →

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Posted on September 12, 2016 by AdminUN

THE ONE-EYE AIR TRAFFIC CONTROLLER APPLICANT GETS 8 YEARS BACK PAY

Back in 2008, Emiko applied for an Air Traffic Controller position and was selected contingent upon a medical exam and background check. When she completed her medical forms, she informed FAA that she had no vision in her left eye, but had learned to compensate for it. She stated she could see as well as anyone with two functioning eyes. The FAA Surgeon did not buy her claim and disqualified her because the physical standards required that anyone in that position have vision in both eyes. That was a huge mistake that likely will cost the agency over a million dollars, but can you see why it was a mistake? After all, excellent vision seems like a perfectly reasonable requirement for an Air Traffic Controller. Here is another hint about what the agency did wrong.  Continue reading →

Posted in Disability, EEO/Remedies | Tagged | Leave a comment

Posted on September 8, 2016 by AdminUN

WHAT CONSTITUTES “COLLECTIVE BARGAINING?”  DO YOU REALLY KNOW?

Here are the facts of an interesting scenario that union negotiators need to watch out for.  The agency gave the union formal notice of a proposed change in working conditions. When the union rep asked for a briefing on the proposed change, that led to a series of meetings between the union and management officials where they talked about lots of issues dealing with the substance of the change, the impact on employees and implementing procedures.  Proposals were never exchanged nor were the meetings like the parties’ formal bargaining sessions where the two teams sat opposite each other as adversaries.  These meetings were less formal, and the union and management reps did not sit apart from one another, but were spread all around the room. However, after about a half-dozen of these brainstorming sessions the agency said it had to implement in four days and it was going with the last draft of the change the parties had examined. The union president told the agency it had to bargain before it could move ahead and that the union was going to submit formal proposals within ten days.  That is how things stood when the agency implemented and the union filed a ULP charge with the FLRA.  The odds are that the union will lose and here is why. Continue reading →

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Posted on September 8, 2016 by AdminUN

ADVERSE ACTION QUIZ: WHO IS BETTER OFF?

Assume that two employees get 15-day adverse action suspensions, their union takes each case to arbitration, and both suspensions are overturned. One employee, Smith, had his adverse action overturned and reduced to a letter of reprimand because the union showed that similarly situated employees were only given reprimands for the same violation. However, the other employee, Jones, had her suspension totally overturned by a different arbitrator because of harmful procedural error by the agency deciding official. She did not even get a reprimand. Who is better off? If you think it is Jones, think it through again. Continue reading →

Posted in Arbitration, Discipline/Adverse Action | Tagged | Leave a comment