Posted on November 9, 2016 by AdminUN

WHAT HAPPENS NOW?

Having lived through a few White House changes, we thought we would share what we know about what will happen next in the federal sector labor relations arena. In the next week or so the President-elect’s team will designate someone to take charge of all the labor relations-related appointments. While DOL and NLRB slots will garner more attention than the fed sector ones, expect that the entire FSIP will be asked to resign—or fired. George W’s folks handed it over to the Heritage Foundation to run during his tenure and there is no reason to expect anything different now, especially since Trump has already committed to letting those folks pick the next Supreme Court nominee. Unions lost about 90% of the times a bargaining dispute went before that FSIP. Continue reading →

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Posted on November 2, 2016 by AdminUN

HR SPECIALISTS ALERT: DISABILITY LAW IS EVOLVING FOR YOU

Suppose a manager calls HR one morning to report that one of her probationary employees has refused to perform a certain function of the job by the established due date and the manager wants to fire the guy. When you ask why the employee refused to do it, the manager claims the employee’s doctor has ordered her not to do the kind of work required to complete the task while he recovers from surgery. She also made it very clear that the employee has not asked for a reasonable accommodation. What is your next move? If it is to start drafting the termination letter, you have not been following developments in the ADAAA disability law. There is at least one federal circuit court of appeals opinion that suggests employees do not have to specifically ask for an accommodation if the employer knows enough about a situation to see that a performance problem is likely related to a disability. One decision does not make it the law of the land, but it does substantially increase the risk that you might be making a big mistake. We will hear more about this evolving HR obligation, but for now check out a new blog posting from OgletreeDeakins law firm entitled, “The Eighth Circuit & the ADA, Part II: Must a Request for Accommodation be Explicit?” and its predecessor. As for those folks on the union side of the table this case might mean that if a member has been disciplined or adversely impacted by an inability to do something and that inability was based even in part on a disability management knew about you might have a decent ADA claim to file.

Posted in Disability, Reasonable Accommodations | Tagged | 2 Comments

Posted on November 1, 2016 by AdminUN

PROBATIONERS: WINNING REINSTATEMENT ON A TECHNICALITY

Unless a probationary employee can claim her rights under some employment law were violated, it is 99% certain that if the agency proposes to terminate her she is a goner. In fact, long gone with zero chance of reinstatement. The 1% depends on whether the employee has a sophisticated union rep or private attorney who can show that the agency tripped over one of the rarely spoken about technicalities for terminating a probationer. Stephen LeMaster of the VA (2016 MSPB 25 (2016) must have had one because the MSPB declared that the agency failed to remember that firing an employee for something that happened before she began her federal employment requires the agency give the employee more rights than if it fired her for something she failed to do after she began her fed career. It is known as the pre-appointment versus post-employment distinction. Continue reading →

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Posted on November 1, 2016 by AdminUN

FLRA INVITES UNION ATTORNEYS TO EXPAND THEIR ENTITLEMENT TO FEES

One of the sweeter benefits for unions is that they are often entitled to receive attorney fees when they win back pay for an employee. When unions win fees they get reimbursed two, three and four times what it cost the union to employ a staff attorney for those hours, namely, salary and benefit costs. It is a very, very nice profit pipeline. Beyond that, attorney fee awards enable unions to free up money they were going to spend on staff attorneys from the annual budget of member dues to devote to other projects. The fees cover the legal staff’s costs and the previously budgeted costs for legal staff can then be redirected into election campaigns, organizing, nicer office space, enhanced travel benefits, etc. We recently saw a post-arbitration settlement document giving a union $2 million in fees. Consequently, it is major news when FLRA announces that it is willing to expand union entitlement to fees beyond the criteria that have been in place for almost three decades. Continue reading →

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Posted on October 31, 2016 by AdminUN

THE LAW OF CONTRACT RATIFICATION: TEST YOURSELF

A 2016 decision out of the Authority has added to the body of law about how unions ratify collective bargaining agreements. See AFGE, Local 1815 and Dept. of the Army, 69 FLRA 309 (2016). Consequently, we thought it might be helpful to let you test your own knowledge of the rules for ratifying agreements. Here are ten questions calling for Yes or No answers that hit the highpoints. Continue reading →

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Posted on October 30, 2016 by AdminUN

IS THIS A VIOLATION OF LAW?

Let’s just consider this a hypothetical. Suppose, one federal union allows it legal staff to keep any attorney fees they collect that exceed the attorney’s annual salary from the union. For example, if the attorney’s annual salary from the union is $100,000.00 and she earns $400,000.00 in attorney fees that year, she must send the union a check for $100,000.00. That allows her to keep the $300,000.00 difference on top of her original salary of $100,000.00. It sounds like a reasonable approach for the union given that its members get to share in the windfall. But also suppose that public records show that this union’s leadership never bothers to collect the refunds from its legal staff? Has the union president violated his/her fiduciary obligation to be fiscally responsible? Has the attorney unjustly enriched himself in light of her contractual obligation to refund the money? We do not know, but we can say that if a union fails to collect monies justly owed it agencies should not be reluctant to put that on the record in any negotiations or impasse hearings where the union seeks agency subsidies in the form of travel and per diem payments, official time, office space, etc.  Feel free to share your thoughts on this question.

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Posted on October 26, 2016 by AdminUN

HOW TO GET FLRA TO BLOCK AN FSIP DECISION

More than a few parties, whether labor or management, who have lost a case before the Federal Service Impasses Panel (FSIP) have concluded that the decision is illegal, if not even immoral, and wanted to get it overturned. Unfortunately, the federal courts refuse to get involved in FSIP decision appeals and FLRA has made it very, very hard to convince it to step in and suspend the FSIP order. But it can happen, and a few days ago FLRA issued a decision in which it effectively summarized precisely what a party has to do to convince it to tell FSIP to back off. Negotiators might want to at least skim it to create a memory that it is possible just in case they need it down the road. See IFPTE, Local 4 and Dept. of the Navy, NH, 70 FLRA 20 (2016)

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Posted on October 26, 2016 by AdminUN

TEN WAYS TO REVERSE A UNION PRESIDENT’S DECISIONS

When union presidents abuse (or simply misuse) power, members have a few options available to bring the union’s CEO back to the reality that they are presidents, not potentates nor pontiffs. Given that union leaders publicize these options about as often as Haley’s Comet comes whizzing by planet earth, we thought it might help to list them starting with the least assertive and moving to the very formal, this-is-war options. Continue reading →

Posted in Union Administration | Tagged | 1 Comment

Posted on October 25, 2016 by AdminUN

DISCIPLINING THE EMPLOYEE ON INTERMITTENT FMLA LEAVE

Although there are some minor differences between the federal employees’ FMLA rights and everyone else in the country, they are not big enough that advice written for private sector employers and employees cannot be helpful to the federal employee. Our fellow bloggers at JacksonLewis, a law firm that typically represents employers, just put out some easy to understand advice for about what an employer is obligated to do with performance standards for employees on intermittent FMLA leave. It is a great thought piece for reps on both sides of the labor-management table.

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Posted on October 24, 2016 by AdminUN

CBP IMPORT SPECIALIST LOSES AWARDS-RELATED RETALIATION CLAIM

A new decision out of the MSPB not only highlights how complicated some appeal actions can be, but also raises the question of why the employee chose to represent himself rather than have his quite capable union help him out at MSPB. The employee was a National Import Specialist with Customs and Border Protection, Office of International Trade. On February 8, 2015, he filed a MSPB appeal alleging that his former branch chief failed to nominate him for a performance award for fiscal year 2011 in reprisal for a September 16, 2011 letter he sent to the Assistant Commissioner of the Office of International Trade in which he alleged that his former branch chief had violated 5 U.S.C. § 2302(b)(8) by retaliating against him. Perhaps the employee did not want the union’s help or he asked and the union declined to help for one of several legitimate reasons. We do not know. What we do know, however, is that if you have co-workers who have decided not to join the union because they think they can represent themselves this is a good case to show them to make the point how necessary it is to have a representational expert help them out—not just the family’s real estate lawyer. Employee representation takes serious skill.  See Kalus v. DHS, CBP, NY-1221-15-0110-B-1 (October, 2016)

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