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

Posted on September 8, 2016 by AdminUN

TEST YOURSELF: EEO RETALIATION

Which of the following are considered to be examples of illegal management retaliation against an employee who has engaged in protected activity under the civil rights laws:

  • work-related threats, warnings, or reprimands;
  • negative or lowered evaluations;
  • transfers to less prestigious or desirable work or work locations;
  • making false reports to government authorities or in the media;
  • filing a civil action;
  • threatening reassignment; scrutinizing work or attendance more closely than that of other employees, without justification;
  • removing supervisory responsibilities;
  • engaging in abusive verbal or physical behavior that is reasonably likely to deter protected activity, even if it is not yet “severe or pervasive” as required for a hostile work environment;
  • requiring re-verification of work status, making threats of deportation, or initiating other action with immigration authorities because of protected activity;
  • terminating a union grievance process or other action to block access to otherwise available remedial mechanisms; or
  • taking (or threatening to take) a materially adverse action against a close family member (who would then also have a retaliation claim, even if not an employee).

The answer is that… Continue reading →

Posted in Retaliation | Tagged | 1 Comment

Posted on August 27, 2016 by AdminUN

THE KABOOM!!! OPTION: WHEN UNIONS BARGAIN IRRESPONSIBLY

After writing about what unions can do when an agency drags its feet in term bargaining, fairness demands that we also touch on what happens when the union negotiators bargain irresponsibly, e.g., they manufacture bogus grievance or ULP claims to avoid FSIP taking jurisdiction. Although it is rarely talked about, agencies have the ability to leave the union bargaining table leadership shell-shocked. Consequently, union negotiators need to keep this potential in mind lest they push the agency to enter the launch codes and attack. Continue reading →

Posted in Bargaining Impasse, Bargaining Law, Strategy/tactics | Tagged | Leave a comment

Posted on August 25, 2016 by AdminUN

CHALLENGING AN ADVERSE REASSIGNMENT DECISION

One of the appeal options an employee has when given (or denied) a reassignment is to claim that the decision was made for discriminatory reasons, e.g., race, gender, age, etc. But in order to prevail the employee must be able to show that the decision amounted to an “adverse action” as that term is understood in civil rights law. Very recent decisions from the EEOC and a court that can be confusing. Continue reading →

Posted in EEO/Discrimination, Reassignments | Tagged | Leave a comment

Posted on August 20, 2016 by AdminUN

AFGE CELEBRATES AGAIN

Most victories for unions are modest, like the one we posted below where AFGE was able to reverse an arbitrator’s ruling denying them attorney fees in a back pay case. But every once in a while unions score a huge win, and AFGE had one this week with the announcement by the Obama Administration was going to stop using private contractors to run federal prisons. While it will be the first to admit that it could not have done this alone, AFGE nonetheless gets a considerable share of the credit for working with groups outside organized labor, as well as the still influential AFL-CIO to launch an allied attack on private contractors. AFGE’s Council of Prison Locals (C-33) has lots to celebrate and the union’s plan of attack on these contractors is a model that other unions will study for a while. Bravo, AFGE. You are making us proud.

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Posted on August 17, 2016 by AdminUN

NLRB & CIRCUIT COURT SMACK DOWN “NON-DISPARAGEMENT CLAUSES”

Although it is rarely done in the federal government, private sector employers often impose “gag orders” on current and resigning employees in order to avoid a public airing of facts about how the company is run. (See American v SBA, 643 F.3d 330 (2011) for a federal employee example.) These are called “non-disparagement clauses” and they often force a resigning employee to choose between receiving some severance pay and exercising his/her rights under various statutes to pursue a public airing of the company’s laundry—dirty and otherwise. They can prevent the employee from even revealing evidence of criminal violations by the employer if he/she wants some severance pay or just an employment recommendation that does not doom his/her chances for another job, much less a reputation. The latest pop example of how these clauses are used as cover-up devices is the Roger Ailes-Fox Network fiasco which was allowed to fester and build because employees were required to agree to these clauses in their employment contracts and severance agreements. There are dozens of other examples where employees were prohibited from revealing evidence of financial wrong-doing, waste, abusive employee treatment, rampant discrimination, violations of law and commonly accepted morals and just paste-poor leadership. But the life of this core “cover-up” tool seems to be coming to an end, thanks most recently to the NLRB and Federal courts. Continue reading →

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Posted on August 16, 2016 by AdminUN

AFGE RESCUES ATTORNEY FEE CLAIM FROM ARBITRATOR ERROR

Arbitrators are paid to make the final decision, but nothing guarantees that they make the right decision. In a new case out of FLRA, AFGE demonstrated its intimate knowledge of attorney fee case law by convincing the Authority to order an arbitrator to reverse his initial decision denying the union fees. (See AFGE and Food Safety Inspection Service, 69 FLRA 519 (2016).) If you have followed FEDSMILL for a while you know how important we consider attorney fee claims to be for a union. A $40,000 fee brings in the same amount of cash that an additional 1,600 members does a year for a union like AFGE. (Less than two weeks ago we opened an envelope to find an arbitrator had awarded another union’s attorney over $450,000 for a simple grievance victory.) Continue reading →

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Posted on August 16, 2016 by AdminUN

GREAT NY TIMES ARTICLE ON THE DECLINE OF UNIONS

We liked this piece particularly because of how well it explains how vital unions are to a democracy and their impact of national elections. It makes it crystal clear why certain political groups are trying their best to crush them. Check out the Times’ “Decline of Unions….” It will take less than five minutes to read.

Posted in National Politics | Tagged | Leave a comment