AFGE Rep Wing - March 2013

March 2013

OFFUT AFB Nurse Reinstatrbitrator Rules Firing Motivated by Hostility Toward Union Activities

A pediatric nurse at Offutt Air Force Base who was fired in 2011 in retaliation for her active and aggressive advocacy on behalf of AFGE has been reinstated after an arbitrator agreed that her removal was “primarily motivated by hostility to her protected activities.”

In 1996, Julie Sheehan led a successful organizing campaign that resulted in the nurses and the hospital’s non-professional employees being represented by AFGE and soon after became vice president of Local 1486. She filed numerous grievances and unfair labor practice charges on behalf of herself and other members, and was also active in union affairs on the national level. She was one of 65 activists who represented AFGE during a labor-management meeting in Los Angeles in 2010 in which participants brainstormed about a replacement for the National Security Personnel System. Despite having been rated a top performer throughout 16 years of service, Sheehan was subjected to claims of performance shortcomings and placed on a performance improvement plan in February 2011, shortly after her immediate supervisor was replaced. Management at Offutt then refused to allow Sheehan to attend a follow-up meeting on the new Defense personnel system using official time, which resulted in AFGE pulling out of the design team meetings.

During seven days of hearings in May and July of 2012, AFGE Legal Rights Attorney Evan Greenstein successfully demonstrated that Offutt management displayed general hostility toward Sheehan’s protected activity as a union representative and hostility toward Sheehan in particular, and used the performance improvement plan as a cover for eliminating who they viewed as a troublesome union activist. In February, the arbitrator ruled that Sheehan’s removal was not supported by the evidence and ordered that she be reinstated to her position and made whole for her losses.

Correctional Officer Wins Retroactive Promotion, Back Pay

A correctional officer who was passed over for promotion after being erroneously named as the subject of an inmate’s complaint has been promoted retroactively after an arbitrator ruled that the agency violated federal statutes and the master agreement between AFGE and the Federal Bureau of Prisons.

The officer at Federal Correctional Complex Forrest City, Arkansas, was up for a promotion to a GS-8 Senior Officer Specialist position in 2010 when he was informed that he was the subject of an open investigation. The officer subsequently learned that the 18-month-old allegations involved conduct by a different correctional officer whose last name was similar to his own but who worked in a post and institution where the officer had never worked. Even though the officer immediately informed the agency of the error, he remained named as the subject of the open investigation and was denied promotion to the higher graded position – even though the similarly named officer who was the actual subject of the complaint was promoted. Local 922 represented the officer during the arbitration hearing, held in November.

In February, the arbitrator ordered that the agency promote the officer to the GS-8 position retroactively and provide the officer with back pay and all other benefits that he would have received had he been promoted initially.

VA Ordered to Pay Performance Awards to Local 2297 Employee

About 35 Title 38 bargaining unit employees at the Veterans Affairs Department’s Los Angeles Ambulatory Care Clinic and other locations in Greater Los Angeles will receive performance awards for work performed in fiscal 2011, thanks to a grievance filed by AFGE on behalf of the Local 2297 members.

An arbitrator upheld the grievance in its entirety, ruling that VA violated the Master Agreement and VA policy when it provided superior performance awards to Title 5 and Hybrid Title 38 employees in fiscal 2011 but did not provide awards to Title 38 employees with comparable appraisal ratings based solely on their status as Title 38 employees.

The affected Title 38 employees will receive $1,000 if they received an outstanding rating and $750 if they received a rating of excellent, which matches the awards given out to other employees that year. AFGE Legal Rights Attorney Michael Pazder represented AFGE during the arbitration hearing.

Appeals Court Upholds FLRA Right to Investigate ULPS by Title 38 VA Employees

An attempt by the Department of Veterans Affairs to prohibit the Federal Labor Relations Authority from investigating unfair labor practice charges filed by the union has been struck down by the U.S. Court of Appeals for the District of Columbia Circuit. The case arose after National Vice President Jane Nygaard filed ULP charges in January 2008 on behalf of two registered nurses at the Minneapolis VA Medical Center. The nurses, both officers with Local 3669, were union witnesses at an arbitration hearing in which they testified that another registered nurse had poor work habits and did not perform as expected. A supervisory nurse then called the nurses in for questioning as to why they had not reported their observations of incompetence to their superior, with a written threat of disciplinary action because of their union activism.

Before the ULP charges could be fully investigated, the VA secretary ruled that Title 38, Section 7422, prohibited FLRA from investigating the ULP charges because they involved “professional conduct or competence” issues of Title 38 employees. AFGE Assistant General Counsel Martin Cohen then filed a lawsuit challenging the secretary’s action.

On March 8, the appeals court ruled in AFGE’s favor, ruling that FLRA can investigate and process ULP charges asserting that a Title 38 employee is being subjected to the “fear of penalty or reprisal” for forming, joining or assisting a union. This should provide somewhat increased protection to our Title 38 bargaining unit members who may be subjected to anti-union acts.

SSA Employee Wins Compensatory Damages in Disabilitly Case

The Social Security Administration was ordered to pay compensatory damages for the physical and emotional distress suffered by an employee who was denied accommodation requests for both a parking space and excusal from her eServices duties.

Although the EEOC administrative judge didn’t find that the employee had established she was subjected to unlawful harassment based on disability or based on her protected activity of requesting accommodation, the judge determined that at least some portion of the physical and emotional distress the employee experienced was caused by SSA’s denial of her requests for the accommodations.

The employee credibly testified to her disability and the judge agreed that her physical wellbeing was affected by the stress caused by how she was treated by her supervisors. The judge also awarded attorney fees and costs associated with the employee’s representation by AFGE attorney Patricia Randle.

Navy Veteran Wins Compensatory Damages in EEO Bias Case

The Navy was ordered to pay compensatory damages for discriminating against a Navy veteran on the basis of race, color, and age. An EEOC administrative judge also found that the Navy created a hostile work environment due to a series of unlawful and pervasive actions, including:

Failure to train and pay the employee and credit her leave correctly over a considerable period of time;

Providing her with equipment and training later than other employees;

Criticizing her job performance unfairly, with the intent to get her out of her supervisor’s department.

The judge concluded that the Navy’s alleged, legitimate, non-discriminatory reasons for criticizing the employee’s job performance did not exist, based on evidence presented during the hearing. The judge found that the Navy’s explanations its actions merely were a pretext for discrimination. The judge determined that the employee had been severely distressed, both emotionally and financially, because of the unlawful employment conditions and stressful work environment that caused her to resign from the Navy after a 20-year career. The judge also awarded attorney fees and related costs to cover the employee’s representation by AFGE attorney Patricia Randle.

Removal of Deputy U.S. Marshal Mitigated to Suspension

A deputy U.S. marshal who was removed from federal service in June 2011 has been reinstated with a reduced 31-day suspension after two of the four charges against him were thrown out. The marshal has been employed by the U.S. Marshal’s Service since 2004 and is a member of Local 2272.

In 2011, the agency fired him after finding him guilty on four counts, including misuse of government property and violation of the terms of the Federal Employee Transit Benefit Program. AFGE Legal Rights Attorney Evan Greenstein represented the employee during five days of arbitration in March and May of 2012.

The arbitrator held that the agency did not fulfill its burden with regard to two of the charges and upheld the two other charges in full or in part. But considering that the marshal had no prior disciplinary actions against him and had expressed genuine remorse for his actions, the arbitrator struck down the removal and mitigated the penalty to a 31-day suspension without back pay.

Roundup of TSA Case Wins

A Lead TSO from Wendover airport was demoted for being tardy 11 times between May and September 2012, and for being inattentive to duty on one occasion. AFGE conceded that management proved the charges by preponderant evidence but argued that demotion was too severe a penalty because the LTSO had never been disciplined and his offenses were not serious in nature. The Board agreed that the LTSO’s tardiness was insignificant and that his inattention to duty was an isolated incident that did not warrant demotion. Interestingly, the Board agreed that given the tiny size of Wendover airport, the LTSO’s inattention to duty was “not egregious.” As such, the penalty was mitigated to a 7-day suspension. – Staff Counsel Julie Yeagle

A TSO at Albuquerque International Airport who had been suspended for five days for failing to identify a prohibited item on the Threat Recognition X-ray had the suspension overturned when it was determined that item in question was not included in TSA’s computer-based training material. – Legal Rights Attorney Evan Greenstein

A TSO from St. Louis Airport as removed when she failed the SOPA on three occasions. The Board agreed that management did not provide the TSO with the appropriate amount of remediation after her second test failure. Therefore, the Board rescinded her removal. The TSO will be reinstated and retrained, and if she passes the SOPA, she will receive back pay. – Staff Counsel Julie Yeagle

VA Police Officer Reinstated with Back Pay

A Veterans Affairs Department Police Officer from Local 1206 was reinstated after having been wrongfully removed from her position based on meritless charges. The arbitrator found that the VA did not prove any of the four charges (and seven total specifications) and ordered the VA to return the officer to her position with back pay plus interest, plus overtime pay she would have earned during the time she was removed.

This case involved the only female police officer at the Sacramento VA, who was unjustly terminated based on unsupported allegations after she complained in writing about the conduct of a couple other employees. She was also apparently targeted by a supervisor who didn’t like her or the initiative she took in taking on added responsibilities above and beyond her position.

The employee is a former military police officer who cares very much about her law enforcement career and suffered a great deal due to the VA’s actions, including losing her home and going through great personal difficulty. Aside from the back pay and overtime, the VA also paid nearly $24,000 in attorney fees and costs for the work performed by AFGE Legal Rights Attorney Mike Pazder in handling the case.

AFGE Wins ULP Against DC Agency for "Pattern and Practice" of Failing to Abide by Settlement Agreements and Awards

The District of Columbia Public Employee Relations Board has called a D.C. agency to task for repeatedly failing to implement arbitration awards or settlement agreements.

The most recent example involved two employees of the D.C. Department of Consumer and Regulatory Affairs who had been awarded back pay and a retroactive promotion, respectively, in July 2008 after filing a grievance. The agency failed to timely and properly pay the two employees, who were members of Local 2725, so AFGE filed an Unfair Labor Practice charge against the agency. The union and agency settled the ULP in December 2011, but then the agency refused to sign the settlement agreement. So AFGE filed a second ULP over the failure to execute and implement the settlement agreement.

In February, the Public Employee Relations Board issued a decision finding that the agency had committed a ULP in this case and has shown “a pattern and practice of failure to implement arbitration awards or settlement agreements in previous cases.” The board ordered the agency to cease and desist from refusing to bargain in good faith, to implement the terms of the original settlement with interest, post a notice of the violation and reimburse AFGE for its costs. AFGE Legal Rights Attorney for the 14th District Leisha Self represented the employees.

Do You or Your Local Need Representation?

The Legal Representation Fund refunds to AFGE local unions $3,000 in winning cases handled by AFGE attorneys in which attorney’s fees are awarded and deposited into the Fund. These refunds help offset some of the costs locals incur in arbitration. For more information on this unique program, which provides a free attorney for your back pay arbitrations, email AFGE’s Office of General Counsel at backpay@afge.org.
Details on AFGE Legal Victories Available Online

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