AFGE Rep Wing - August 2012

Rep Wing - August 2012

August 22, 2012

August 2012

COURT OF APPEALS SIDES WITH AFGE IN RIF NEGOTIABILITY CASE

In a case brought by AFGE, the U.S. Court of Appeals for the D.C. Circuit has upheld the right of federal unions to negotiate certain issues surrounding an agency’s implementation of a Reduction in Force. The specific case involved the Air Force’s 2006 decision to conduct a Reduction in Force (RIF) at Luke Air Force Base in Arizona. AFGE Local 1547, which represents employees at the base, made two proposals related to how the RIF would affect employees hired under Veterans Recruitment Appointments (VRAs). The Air Force challenged the union’s right to negotiate over the proposals, prompting Local President Harley Hembd to appeal to the Federal Labor Relations Authority. The FLRA ruled in AFGE’s favor in 2011, but the Air Force appealed to the Court of Appeals. AFGE Assistant General Counsel Judy Galat filed the appellate court appeal; on June 1, the court upheld the FLRA decision.

The Air Force’s planned RIF only eliminated competitive service positions, which meant that VRA appointees who had not been converted to the competitive service would not have been affected. AFGE was concerned that excluding these VRA appointees would have a negative impact on employees already in the competitive service, since in many cases the appointees had less service time than competitive service employees in comparable positions. So, AFGE made two proposals to ensure that competitive service employees were not adversely affected. First, if the Air Force determined a competitive service employee would be displaced by the RIF, and a VRA appointee with less seniority occupied a similar position, the Air Force would convert that VRA employee to a term appointment that would expire before the RIF took effect. Secondly, the Air Force would not make any new VRA appointments into positions affected by the RIF until the RIF was completed.

“By attempting to exclude employees appointed under the VRA authority, the Air Force was trying to circumvent RIF rules and lay off permanent employees with more seniority,” AFGE National President John Gage said in a statement. “We are pleased that the Court of Appeals has upheld the right of the union to negotiate over the terms of a RIF that otherwise would have negatively affected career employees.”

BOP EMPLOYEES WIN 4-YEAR FIGHT FOR OVERTIME BACK PAY

AFGE bargaining unit employees at the U.S. Penitentiary in Atwater, California, will share a $200,000 award for overtime that the Bureau of Prisons failed to pay as required under the master agreement, the Federal Labor Relations Authority recently ruled. In a June 2010 decision, an arbitrator ruled in AFGE’s favor that Local 1242 employees were due about $350,000 in overtime that the agency failed to pay out between January 2008 and May 2009. AFGE and the agency were unable to determine the exact amount owed to each affected employee, partly because the agency had failed to maintain records of overtime that employees had performed between Jan. 1, 2008 and June 1, 2008. The parties returned to the arbitrator, who ruled in November 2011 that the employees should be awarded back pay in accordance with AFGE’s figures for the entire remedy period. For the five-month period in which the agency had no overtime records, the arbitrator awarded a lump sum back payment of $200,000, to be split among all affected employees. The agency objected to this lump sum payment and filed an appeal with the FLRA, which denied the exception and ruled that the evidence presented by the union was sufficient to prove that the affected employees would have been owed that amount of money if not for the agency’s violations. AFGE Legal Rights Attorney Michael Pazder represented the local in this case.

ARBITRATOR OVERTURNS REMOVAL OF GSA EMPLOYEE

In a recent decision, an Arbitrator sustained AFGE’s grievance and overturned the removal of a General Services Administration employee in New York, NY. The Local 2431 employee for more than 20 years had been removed for alleged “neglect of duty” on a detail assignment. The Arbitrator found that the Agency’s removal of the employee was “an unwarranted, unduly harsh, arbitrary, and capricious sanction.” Among the reasons cited by the arbitrator were a failure to directly express the employee’s tasks at the time she was assigned to the detail, the employee’s faithful response to clearly expressed task assignments, a lack of evidence that the employee willfully neglected her duties, the Agency’s failure to provide the employee with assistance in completing unreasonable physical tasks despite multiple requests, the lack of adequate warnings that the employee’s alleged actions or inactions were causing project delays, the fact that the employee’s alleged inaction had no adverse bearing on her mid-year evaluation, and the agency’s failure to show that the removal penalty was sustained by the Douglas Factors. The Arbitrator’s award entitles the employee to return to work with GSA and recover the full extent of back pay, allowances, differentials, and other remunerations plus interest from her removal period, which lasted about six months. The employee was represented by AFGE 8th District Legal Rights Attorney Amanda Thai.

AFGE WINS REDUCED PENALTY FOR SSA EMPLOYEE

An Arbitrator has sustained AFGE’s grievance and mitigated the 14-day suspension of a Social Security Administration employee in Philadelphia, Pa., to a one-day suspension for misuse of an agency computer and associated e-mail services and lack of candor. The Arbitrator found that the Agency did not sustain its charge of a lack of candor since testimony from the local’s executive vice president adequately refuted the allegation. The Arbitrator also held that allegation of misuse of an agency computer did not warrant a 14-day suspension under progressive discipline, since the Local 2006 employee had only one prior letter of reprimand. Thus, the Arbitrator found that a one-day suspension was appropriate given the situation. The employee was represented by AFGE 8th District Legal Rights Attorney Amanda Thai.

FLRA ISSUES COMPLAINT AGAINST BOP FACILITY IN AFGE ULP CASE

The Federal Labor Relations Authority issued a complaint against the Bureau of Prisons Federal Correctional Complex in Tuscon, Ariz., following the agency’s failure to fully implement an arbitration award by failing to pay the proper amount of back pay to affected employees. The original decision in this case dates to November 2008, when an Arbitrator found that the Local 3955 Lock and Security Specialists at FCC Tucson were entitled to a hazardous pay differential for being required to work around explosive materials. The Agency filed exceptions and AFGE also filed exceptions based on the Arbitrator's failure to award interest on the back pay award. The FLRA upheld the Union's exception and denied the Agency's exceptions. The Award became final and binding on Nov. 24, 2010. However, the agency circumvented the FLRA decision by paying the four affected employees only a portion of the back pay to which they were entitled. To accomplish this, the agency devised a new theory in which it reviewed a log book in the armory to supposedly determine the days employees actually were exposed to hazardous materials. AFGE District 12 Legal Rights Attorney Mike Pazder filed an Unfair Labor Practice charge in May 2011. The FLRA concurred with AFGE’s position and issued a complaint against the Agency. A hearing is scheduled for September, absent a settlement by the Agency.

DETAILS ON AFGE LEGAL VICTORIES AVAILABLE ONLINE

For a full view of cases published in the Rep Wing, go to Casetrack at https://www.afge-casetrack.org/. Back issues of the Rep Wing are available online. To receive printed copies for distribution, please email communications@afge.org.

AFGE SECURES REDUCED PENALTIES FOR TSA OFFICERS

A Lead Transportation Security Officer (LTSO) at Bangor International Airport in Maine had a proposed reduction in pay rate and pay band mitigated to a seven-day suspension. The LTSO had been charged with one count of AWOL for failing to report for duty on time. AFGE argued that the delay in reporting was caused by an uncontrollable and unforeseen medical emergency. – AFGE Staff Counsel Gregory G. Watts
A five-day suspension for a TSO at Honolulu International Airport was mitigated to a letter of reprimand with a six-month smart agreement. The TSO had been charged with failure to follow established procedures and guidance after she allegedly failed to perform a daily operational test to calibrate a screening device and failed to report this oversight in a timely fashion. AFGE argued that management did not prove she was responsible for ensuring the device was calibrated. AFGE also argued that management did not follow progressive discipline and failed to properly consider mitigating factors.– AFGE Staff Counsel Anju Varakalayil Mathew

A notice of proposed removal for a TSO at O’Hare International Airport in Chicago was mitigated to a five-day suspension. The TSO had been charged with failure to follow standard operating procedures and inattention to duty. Management alleged the TSO improperly allowed a plainclothes police officer through a checkpoint and inappropriately used a cell phone to text a supervisor after the incident. AFGE argued there was no standard operating procedure specifically regarding plainclothes officers and management never provided any such procedure. AFGE also argued that texting using cell phones is a common practice encouraged by supervisors because of unreliable TSA-issued radios. – AFGE Staff Counsel Gregory G. Watts

A TSO from Midway International Airport in Chicago who was suspended for 14 days for unauthorized use of federal transit benefits had the penalty reduced to a 7-day suspension during mediation.– AFGE Staff Counsel Julie Yeagle

A TSO at Portland International Airport in Oregon received a notice of removal for medical inability to perform screener functions. In an appeal to the Office of Professional Responsibility Appellate Board (OPRAB), AFGE argued that management did not prove the medical condition met the burden specified in TSA’s medical guidelines and that the condition did not adversely impact her job performance. OPRAB granted the appeal and reinstated the TSO to duty. – AFGE Staff Counsel Gregory G. Watts

AFGE AIR FORCE LOCAL WINS ARBITRATION IN OFFICIAL TIME CASE

AFGE successfully challenged an attempt by management at Luke Air Force Base outside Phoenix, Ariz., to restrict official time duties for the AFGE Local 1547 president. The grievance filed by the Local argued that the Air Force base had violated the Labor Management Agreement and the long-established past practice between the parties when it denied official time to the Local President and changed his official time status. AFGE District 12 Legal Rights Attorney Mike Pazder represented the Local in arbitration. The Arbitrator sustained the grievance and ordered that the agency restore 20 hours of annual leave that the Local President had been wrongfully required to use to perform official business. In addition, the arbitrator ordered that the Local President be restored to 100% official time status. AFGE also reached a settlement agreement with the agency for the payment of $20,000 in attorney fees.

AFGE SECURES HEARING FOR ED EMPLOYEE IN DISCRIMINATION CASE

An AFGE member with the Department of Education will have her day in court thanks to the representation of AFGE. The employee alleged discrimination on the basis of race when she was not selected for a Rehabilitation Specialist position. An EEOC Administrative Judge, citing no material facts in dispute in the case, made a determination that the Agency’s actions in not selecting the employee for the position did not violate her civil rights. AFGE Women and Fair Practices Attorney Mark Vinson filed an appeal brief with EEOC’s Office of Federal Operations (OFO) arguing that there was sufficient information in the record that indicated that the selection was tainted with discriminatory bias and that there were material facts in dispute regarding whether the employee’s qualifications were superior to those employees selected for the position. OFO agreed and ordered that the case be reinstated for a hearing before an EEOC Administrative Judge.

DO YOU OR YOUR LOCAL NEED REPRESENTATION?

The Legal Representation Fund now refunds to AFGE local unions $2,000 from the Fund, in winning cases handled by AFGE attorneys in which attorney’s fees are awarded and deposited into the Fund. These refunds help to offset some of the costs incurred by the Local going to arbitration. For more information on this unique AFGE program, which provides a free attorney for your back pay arbitrations, email AFGE's Office of General Counsel at backpay@afge.org.