Ask FELTG: Does union rep have right to attend staff meeting whenever he wants?

July 31, 2023

Here’s a summarized version of the question that came into FELTG headquarters:

I run a monthly staff meeting with the employees I supervise. They are bargaining unit employees. I received a request from a union rep to attend the staff meetings. I asked him the nature or reasons for his attendance, and he told me: “The union has a right to attend any staff meeting.” He sent a reference to 5 U.S.C. 7114 as his justification.

I need some advice. To my knowledge, no investigation has been launched or a grievance filed, so I’m confused as to why he needs to be present in the meeting.

Is this union rep correct? Can he attend a staff meeting without being invited by an employee and sit in as an observer whenever he wants?

Our perfunctory answer is: No. The union can propose that right and then negotiate to try to get it into the contract, but the statute says nothing about requiring management to allow a union representative into every single work meeting.

By law, there are two occasions when there are rights for a union rep to be in a meeting:

– Weingarten: If a management official (e.g., you) is questioning a bargaining unit employee, and that employee might be disciplined for misconduct, IF the employee requests a union rep, he has that right. Once the rep is in the meeting, he can speak on behalf of the employee, but not control your questioning. This is a statutory employee right.

– Formal Discussion:  If a management official is meeting with bargaining unit employees to discuss working conditions (e.g., how to apply for annual leave around a holiday), the manager must notify the union in advance of the meeting and the topic and allow a rep to be present if the union wants to attend and participate. This is a statutory union right.

Union and management sometimes negotiate to allow union reps into other sorts of meetings (e.g., safety meetings). If that has happened, it would be part of the union contract.

We encouraged our faithful reader to get training on this topic, as one misplaced word by a single management official when working with a union can really mess things up.

FELTG is offering a 60-minute webinar on Aug. 22, titled What Supervisors Should Know About Official Time, the final class in our Supervisory Webinar series. Register here. Or, for a more detailed training, you can attend one or more days of FLRA Law Week, running from Sept. 18-22. The Sept. 19 session will include a module on Meetings. Register here.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: If an employee is AWOL, should agency charge only AWOL or also Failure to Follow Leave procedures?

June 26, 2023

Thanks for the question; it’s one we get fairly frequently. Let’s look at what the Merit Systems Protection Board (MSPB) says on this matter:

AWOL and Failure to Follow Leave Procedures generally are separate charges with different elements of proof. Valenzuela v. Army, 107 M.S.P.R. 549, 553 (2007).

There are two elements of an AWOL charge:

1. The employee was absent without authorization, and

2. If the employee requested leave, the leave request was properly denied.

Wesley v. USPS, 94 M.S.P.R. 277, ¶ 14 (2003).

To prove Failure to Follow Leave Procedures, the agency must show that the employee failed to request leave for an absence, and that he was clearly on notice of leave-requesting requirements, and the likelihood of discipline for failure to comply. Allen v. USPS, 88 M.S.P.R. 491, ¶ 10 (2001).

If an employee is a no-show at work and did not request leave, there are two separate incidents of misconduct. An agency is “doubly burdened” by an unscheduled absence; once for the loss of the employee’s services, and again for the loss of the opportunity to plan for the absence. Yartzoff v. EPA, 38 M.S.P.R. 403 (1988). In this instance, both charges would make sense.

If the employee properly requested leave, and it was denied, and the employee did not report to work anyway, a sole charge of AWOL would make the most sense.

Under some circumstances, the charges of failure to follow leave procedures and AWOL merge: The charges of failure to follow leave-requesting procedures and AWOL must be merged when they do not involve different misconduct or elements of proof; that is, when the charge of AWOL was based solely on the appellant’s failure to follow leave-requesting procedures. Westmoreland v. VA, 83 M.S.P.R. 625, ¶ 6 (1999), aff’d, 19 F. App’x 868 (Fed. Cir. 2001), overruled on other grounds as recognized in Pickett v. USDA, 116 M.S.P.R. 439, ¶ 11 (2011).

For a recent case on the matter, check out Doulette v. USPS, NY-0752-17-0060-I-1 (Jun. 5, 2023)(NP), where the agency charged the appellant separately. The Administrative Judge merged the two charges but because the AWOL charge was not based solely on the appellant’s failure to follow leave procedures, the Board determined the merger was not appropriate and upheld the separate charges, and ultimately, upheld the removal. Id.

Looking for more advice on leave matters? Attend the upcoming virtual training Mastering Sick Leave and FMLA: A Roadmap for HR Practitioners July 11-13.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Does a Local CBA Trump an Agency’s Nationwide Policy?

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June 14, 2023

Here’s more context from the loyal FELTG reader who posed the question:

Let’s say, hypothetically, management at a regional outpost agrees to terms regarding office workspace with their local union, and then enters into a CBA articulating those provisions. Later, the national agency management team creates a policy on office workspace that is inconsistent with the local CBA.

Which policy controls at the outpost? Is it the local policy as stipulated in the CBA or the national policy? Can the actions of a manager at the local level essentially prevent the agency’s leaders from having a universal policy?

Here’s FELTG’s answer:

The union agreement always trumps an agency’s new policies with two exceptions:

  1. The agency can demonstrate that the new policy is related to the “necessary functioning” of the agency and the change is in response to an “overriding exigency.” See SEC v. FLRA, 568 F.3d 990 (DC Cir, 2009).
  2. The new policy is implementing a new law. (The incontrovertible law part of the new policy is effective right away. However, the agency still must bargain I&I and any flexible parts of the law).

So, let’s say local management agrees to office space of a specific size, and the agency head later decrees that office space will be less than that, the agency is obligated to continue the bargained-for office space if and until it can bargain its way out of it.

Here’s an example we like to discuss during FLRA Law Week (next held September 18-22). Years ago, the Secretary of HHS declared through a new policy that the work places within HHS would be smoke-free. He reasoned that given the word “health” in the name of his agency, he should prohibit things that by their very nature are not healthy. Very reasonable reason for a new policy, we tend to think.

However, it conflicted with several local CBAs, including at NIH, which had old provisions allowing designated smoking areas.

There was a huge welcome sign as you entered the main campus of an HHS sub-agency that states it is a “totally smoke-free environment.”

Several times, we had to plead with FELTG Past President Bill Wiley to not add a comment to the sign, stating “unless you’re in certain bargaining units.”

Have a question, Ask FELTG.

The materials presented here and on this website are for informational purposes only and are not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship.  Should you need legal advice, you should contact an attorney. 

Ask FELTG: If an employee is out of leave and requests Leave Without Pay for an ongoing illness, is the agency required to grant the LWOP?

May 30, 2023

Thanks for the question. And the answer is … it depends.

A foundational principle regarding Leave Without Pay (LWOP) is that granting or denying LWOP is within the agency’s discretion. See Sambrano v. Department of Defense, 116 M.S.P.R. 449, ¶ 4 (2011). In cases involving employee medical issues, the MSPB will examine the record as a whole to determine whether the agency’s denial of LWOP was reasonable under the circumstances. Id. When an employee who is incapacitated for duty has exhausted all of her leave, an agency may deny LWOP when there is no foreseeable end to the employee’s absence and the employee’s absence is a burden to the agency. Id.

Allow us to elaborate by way of a recently issued NP case from the MSPB, Evans v. DOL, CH-0752-15-0179-I-1 (May 3, 2023)(NP). Evans was removed for AWOL after the agency denied her request for continued LWOP related to an illness. On appeal, the AJ affirmed the agency’s AWOL charge and concluded that the agency’s denial of LWOP was reasonable because there was no foreseeable end to her absence, and the absence was a burden to the agency. The Board agreed.

Agency policy on LWOP often arises in these cases, and Evans was no exception: “The agency’s policy specifically indicates that the granting of LWOP is discretionary…While it does allow officials to grant LWOP pending final action by the Office of Personnel Management on a disability retirement claim, at their discretion, the policy does not specifically cover the appellant’s situation, when she was AWOL but apparently still deciding whether to apply for disability retirement.”

The intersection of leave and medical issues is one of the more complex areas in Federal employment law, and mistakes can cost the agency dearly. If you work in this arena, FELTG has an upcoming training opportunity you’ll want to take advantage of:

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: Could Last Chance Agreement Open Agency to Disparate Treatment Claim?

May 1, 2023

The following question came into the FELTG mailroom.

Our agency sometimes uses Last Chance Agreements, but a few members of leadership are concerned that offering LCAs to only certain people could open the agency up to claims of disparate treatment discrimination. What are your thoughts?

The good news is that the MSPB has said that an agency’s decision to enter into a settlement agreement with an employee generally cannot form the basis for another employee’s disparate treatment claim. See Ragolia v. USPS, 52 M.S.P.R. 295 (1992); Lewin v. Department of Justice, 74 M.S.P.R. 294 (1997). The Board explained that “to require such an explanation from the agency in order to discount a disparate treatment claim would have a chilling effect on settlement agreements, which are, after all, favored by the courts and the Board.” Ragolia, 52 M.S.P.R at 304.

A recent NP Board decision affirmed this principle. In this case, the appellant was removed after he tested positive during a scheduled drug test. He admitted he had taken THC tablets two days prior to the test, to cope with alcohol withdrawal. He challenged his removal and claimed a due process violation because he was not offered an LCA. The MSPB, citing Lewin, found there was no valid claim of disparate treatment because settlements with other employees need not be explained. Oneal v. USAF, AT-0752-15-0666-I-1 (Feb. 22, 2023)(NP).

For more on this topic, join FELTG for the all-new virtual class Clean Records, Last Rites, Last Chances, and Other Discipline Alternatives on May 17.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: I work for a fairly small agency. Is it a problem if the same supervisor acts as both the Proposing and Deciding Official in a disciplinary action?

March 20, 2023

You might be surprised by this, but the answer is no – it’s not a problem or issue as long as the employee is given due process:

1. Proposal notice with charge(s), penalty, and the material relied upon in making the proposal;

2. An opportunity to respond orally and in writing, with a representative if desired; and

3. An impartial decision.

If the PO and DO are the same person, there’s no due process issue if that supervisor can credibly testify they kept an open mind and did not make a final determination about discipline until after the employee’s response.

This is a foundational principle going back to early Board case law, which states the “law does not presume that a supervisor who proposes to remove an employee is incapable of changing his or her mind upon hearing the employee’s side of the case.” DeSarno v. Commerce, 761 F.2d 657, 660 (Fed. Cir. 1985).

One quick note: In a Chapter 43 performance-based action, the law requires the DO to be a management official at a higher level than the PO. 5 USC § 4303(b)(1)(D)(2).

Join FELTG for MSPB Law Week March 27-31 (next week!) for more on this topic.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What’s the Best Way to Calculate Non-pecuniary Compensatory Damages in an EEO Case?

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February 28, 2023

Thanks for the question. The best way to determine appropriate compensatory damages in cases where agencies are found liable for discrimination, harassment, reprisal, or a failure to accommodate is to look at the harm the employee endured. It’s difficult to put a dollar value on non-tangible things like anxiety, fear, loss of sleep, and the like, so researching cases where the facts are similar will help you determine what amount of damages the Commission would consider appropriate.

According to instructor Bob Woods, “EEOC has provided that an award should reflect the nature and severity of the harm to the complainant and the duration or expected duration of the harm. They have specifically stated that they will attempt to make awards that are consistent with awards in similar cases.”

In addition, we’ve done training on the topic and a recording of the recent webinar Damages and Remedies in Federal Sector EEO Cases is available in the FELTG store. Or, join us during EEOC Law Week March 13-17 for a live discussion on this topic and more.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG Tackles Accommodation Request for Inability to Commute

January 24, 2023

Here’s a question that recently came into FELTG’s mailroom:

In granting or denying a reasonable accommodation request for telework, does it make any difference if the employee’s only disability-related problem is his commute to work? Hypothetically, he does not have any problem performing his job once he gets to work.

And our reply:

Thanks for your email; we get various versions of this question quite a lot (see a recent Ask FELTG about accommodating an individual with telework because the Metro station near his home was closed). In recent years, EEOC has given us clear guidance on the topic.

To be entitled to 100 percent telework as a reasonable accommodation, the employee must show:

1. Their disability makes it impossible for them to get to the physical work site, and

2. The essential functions of their position can be performed from home.

Here are a couple of cases to get you started:

Lavern B v. HUD, EEOC No. 0720130029 (2015): EEOC “precedent clearly has established that a request for telecommuting or a shorter commuting time because of a disability triggers an Agency’s responsibility under the Rehabilitation Act.” This doesn’t mean the employee will always be granted telework, but this means the agency is obligated to go through the reasonable accommodation process with the employee who is requesting telework or an alternate work location because the commute exacerbates his medical condition. In this case, EEOC found that commuting to work is a major life activity. Because of the complainant’s spinal condition, the agency was required to consider accommodating his physical inability to commute the longer distance to the office.

Doria R. v. NSF, EEOC Appeal No. 0120152916 (2017): “[P]roviding disabled employees with the reasonable accommodations [sic] of telecommuting is consistent with the Rehabilitation Act’s goal of assuring ‘equality of opportunity, full participation, independent living, and economic self-sufficiency’ for individuals with disabilities.” In this case, the employee had cancer that metastasized to her bones. Driving or riding in a car was deemed by her physician to be too dangerous because of the condition of her skeleton, and the agency erred by not considering her request for 100 percent telework.

We’ll be tackling this topic in more detail on Feb. 16 during the two-hour class Reasonable Accommodation: Meeting Post-pandemic Challenges in Your Agency. We hope you’ll join us!

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: How Exactly Did Union Rep Cross Line Into Misconduct?

January 9, 2023

An item in our weekly email generated the following question:

You mentioned in one of your recent newsletters that an FLRA decision illustrated union activity “that very clearly crossed the line.” As our relationship with the union here is standoffish in its best moments, I’d like to know what exactly the union did to cross that line so that a union rep could be disciplined.

Dear loyal FELTG reader,

First, thank you for subscribing to our weekly email and monthly newsletter.

What you read was a teaser, enticing you to register for Ann Boehm’s two-hour training session Drawing the Line: Union Representation or Misconduct on Jan. 19 at 1 pm ET. In that training session, Ann will discuss every angle of this topic, from determining what kinds of union activity are protected to how to discipline disruptive behavior that is not protected. And she’ll discuss the arbitrator and, eventually, FLRA decision in Bremerton Metal Trades Council, 73 FLRA 90 (2022).

So, you want to know: What did the union rep do in Bremerton that warranted discipline?

Well, the union rep, according to statements obtained by the agency, used the following words to describe colleagues — ’r—ard,’ ‘stupid,’ ‘slow,’ ‘f—king p—sy,’ ‘f—king idiot,’ and ‘god d—n r—ard.’ The rep created a toxic and uncomfortable work environment. The rep’s behavior was so bad, it caused a chief steward to experience three panic attacks over a one-month period, with the last one landing him in the hospital.

The arbitrator sided with the agency’s decision to discipline the rep for her “confrontational and bullying” behavior because the conduct was “flagrant or otherwise outside the bounds of protected activity.” The arbitrator also noted that the bullying behavior was for the grievant’s own benefit, and it was not provoked. The FLRA concurred.

For more about this case, read Ann’s Good News column from last August and join her on Jan. 19.

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.

Ask FELTG: What do OPM’s new regulations say about clean record agreements?

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December 14, 2022

OPM’s new regulations on 5 CFR parts 432 and 752, which went into effect Dec. 12, 2022, removed the 2020 regulations’ prohibition on clean record agreements. Agencies are once again free to use clean record settlements. This was probably the most contested portion of the 2020 regulations, which had incorporated President Trump’s E.O. 13839 prohibitions on clean record settlements.

OPM explains that clean record agreements “should be an option for agencies to resolve informal and formal complaints when the agency deems it is in the best interests of effective and efficient management to achieve the agency’s mission,” and that clean record agreements provide agencies with an important tool and flexibility, consistent with the policies of President Biden’s E.O. 14003, Protecting the Federal Workforce.

OPM identified some of the disadvantages to prohibiting clean record agreements:

  • Reduced likelihood of parties reaching a mutually agreeable resolution of informal or formal complaints
  • Increase of costly litigation and arbitration
  • Crowding of the dockets of third-party investigators, mediators, and adjudicators
  • Cases languishing impact the agency’s credibility, supervisor morale, and efficient execution of the agency’s mission

OPM’s rescission does not take a position on whether any particular case should be settled, as it acknowledges that settlements, which through lessening a penalty or permitting resignation, may in certain circumstances:

  • Lessen the risk of outright reversal with its high costs without benefit, or
  • May adversely affect governmental interests.

Agencies are still required to be truthful to Federal investigators in connection with background investigations, and may not agree to withhold information about an individual’s departure from the agency. In addition, the requirement for agencies to be truthful applies also to suitability determinations and other inquiries related to vetting for personnel security.

The rescission of clean record restrictions applies to

  • 432.108 (performance-based actions)
  • 752.104 (discipline for whistleblower retaliation)
  • 752.203 (short suspensions)
  • 752.407 (appealable actions)
  • 752.607 (SES adverse actions)

If you missed our recent webinar Implementing New OPM Regs for More Effective Disciplinary and Performance Actions, the recording is available in the FELTG store. Info@FELTG.com

Have a question? Ask FELTG.

The information presented here is for informational purposes only and not for the purpose of providing legal advice. Contacting FELTG in any way/format does not create the existence of an attorney-client relationship. If you need legal advice, you should contact an attorney.