Posted on April 25, 2016 by AdminUN

WHEN IS OBESITY A DISABILITY?

A new U.S. Circuit Court decision outlines the criteria an obese employees must meet in order to request an accommodation.  The law firm of Ogletree Deakins wrote a good piece about what the case means that we recommend. It is entitled, Is Obesity a “Disability” Under the ADA? Not Without Physical Impairment, Eighth Circuit Rules. This court’s opinion of one of several varying viewsof what the law requires, as outlined in a HR Executive Online posting. Checkout the HR Daily Advisor for suggestions on accommodations employers should consider for the obese.

Posted in Disability | Tagged | Leave a comment

Posted on April 22, 2016 by AdminUN

WHY DOESN’T FSIP GET IT ABOUT DECISION FALLOUT?

One of our continuing beefs with the Panel is that it regularly fails to consider the long-term fallout of its decisions. For example, it recently rejected a union proposal that assignments to long-term travel TDY be given to the least senior employee when ”… there are two or more employees equally qualified for the assignment and there are no volunteers.” The Panel employee chose instead this agency proposal, “the decision to assign an employee to long-term TDY will not be based on criteria unrelated to mission.” The Panel chose the agency’s offer because the union failed to demonstrate a need for its rule and because it thought that management should have the discretion to select an employee with specialized skills and experience. Let’s put aside the fact that the union’s proposal allowed management to consider specialized skills and experience when determining qualifications, and focus on what can happen next when management tries to implement this clause. Continue reading →

Posted in FSIP | Tagged | Leave a comment

Posted on April 22, 2016 by AdminUN

OMG!!!! REALLY? AFTER 40 YEARS OF CASE LAW.

Not long ago at all we ran across a case that left us confused about whether to be angrier with the agency or the union. We are not going to identify the parties or the case so that we can say what we really think. (Besides one of the two parties is really, really sensitive about any publicizing of its less-than-admirable representational moments.) The grievance was filed in Austin, Texas in 2009 and the arbitration decision was issued in late 2015. You are probably thinking that it must have been horribly complex or the employee went into a coma for six years or it took years of litigation to get the necessary documents into the record. Nope! It was a simple disagreement over an appraisal score. The employee wanted to be rated one level higher, which would have increased the amount of her annual performance award by $50.00. So, why did it take six years? Continue reading →

Posted in Arbitration Exceptions | Tagged | 1 Comment

Posted on April 18, 2016 by AdminUN

OUR COMPLIMENTS TO FLRA ON NEW WEB SITE

We will always remember Carol Pope as the person who not only kept Dale Cabiness from pulling the plug on FLRA, but who also nursed it off life support once Dale resigned. Today, we saw yet another sign of how healthy the Authority has become when we clicked on FLRA.gov and saw a brand new web site. Although the old site was not hostile to readers as some union sites are with their tiny print, word-clogged front pages and inscrutable placement of key data, this one has to rank at the top of the user-friendly sites in government. (AFGE.gov is an example of a top-notch union site.) The routes to different data are clearly presented, the key information resources are just one-click from the home page, and thing is attractive—a key feature of an organization looking to invite people in rather than scare them away. While we are not yet ready to say that FLRA is in tip-top shape, with this bit of modernization out of the way the members can turn their attention to toning up its still sagging parts, such as the glacial speed of the ALJs, and the nearly indecipherable case law around particularized need, formal meetings, past practice, and a few other practitioner-hostile areas.

Posted in FLRA | Tagged | Leave a comment

Posted on April 13, 2016 by AdminUN

ACCOMMODATING EMPLOYEES WHO CANNOT REPORT TO WORK

The law firm of ShawValenza just posted a very interesting article under the title above.  We recommend it for those working in the reasonable accommodation area, if only as a useful thought-provoking piece about how creative accommodation can and sometimes need to be.

Posted in ADA/ADAAA | Tagged | Leave a comment

Posted on April 12, 2016 by AdminUN

GRIEVING ULP CHARGES

While the traditional place to file a ULP allegation is with the FLRA, there are considerable advantages to grieving it—especially if you make some small changes in your contract grievance procedure. Continue reading →

Posted in ULPs | Tagged | Leave a comment

Posted on April 12, 2016 by AdminUN

THE MISSING ELEMENT OF OVERTIME BACK PAY CASES

The FLRA has made it quite clear that in order to award back pay a party must show that there is a direct causal connection between the unwarranted and unjustified personnel action and the loss of pay, allowances or differentials.  That is easy to show when an agency skips the next person on the OT assignment list in violation of the contract.  The issue of the agency’s ability to pay never comes into play.  But what if an agency unilaterally made massive changes in its overtime assignment practices in order to increase the service it provides.  For example, Continue reading →

Posted in Back Pay | Tagged | Leave a comment

Posted on April 8, 2016 by AdminUN

BROAD REMEDIES FOR DISABILITIES

Too often union reps and LR/ER/EEO Specialists think that the only remedies available to disabled employees needing an accommodation is something personal to the employee, e.g., a larger computer screen, a better chair, or even a reader. But a brand new EEO decision highlights how far EEOC will demand the agency go to make the work environment supportive of the disabled employee Here are the five changes the Commission demanded the agency make in Latarsha A., v Bay, FERC, EEOC Nos. 0120123215 and 0120131079 (2016). Continue reading →

Posted in Disability | Tagged | Leave a comment

Posted on April 6, 2016 by AdminUN

GRIEVANCE DRAFTING TIPS 1, 2 & 3

Most contracts merely require the union to put the following in the grievance: 1- Article and section violated, 2- Description of the grieved event, and 3- Remedy desired.   As clear as that or similar language appears, there are some drafting tips that will boost your chances of winning.  (Be sure to check out the conclusion of this post entitled, “Grievance Drafting Tips 4, 5, & 6.) Continue reading →

Posted in Grievance/Arbitration | Tagged | 3 Comments

Posted on April 5, 2016 by AdminUN

LADIES OF THE LAW

A conference is coming up that will feature the four most important women in federal sector labor and employee relations. The National Academy of Arbitrators along with FMCS is sponsoring a program in early May where the four Presidential appointees will take the stage to answer questions.  They are Mary Jacksteit, Chairman FSIP; Carol Waller Pope, Chairman FLRA; Allison Beck, Director FMCS; and Susan Grundmann, Chairman MSPB. The meeting will be in Atlantic City, NJ and we hear rumors that there are just 29 slots left. Here is the agenda. This track is intended primarily for Federal Sector management and union representatives. Top Federal policy makers will describe where their agencies stand and identify hot issues and trends. Skills to be imparted include bullet-proofing cases, briefs and awards, preparing successful challenges and defenses in discipline cases, dealing with remedies and handling arbitration appeals. Format will include lectures, panel discussions, audience participation and mock hearing. Experienced arbitrators, advocates and attorneys will be there to guide attendees through various segments. For more information contact FMCS Commissioner Barbara Lichtman at 215-717-7500 or email blichtman@fmcs.gov.

Posted in Training | Tagged | 1 Comment