2 Tool Weingarten Rights What it covers? “The Union shall be given the opportunity to be...

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Weingarten Rights

What it covers?

“The Union shall be given the opportunity to be represented at “any examination of an employee”…if “the employee reasonably believes that the examination may result in disciplinary action” and “the employee requests representation.”

Where to look for more info?

Collective Bargaining Agreement, Section 4.04 and 5 USC 7114 (a) (2) (b)

https://www.umass.edu/usa/weingarten.htm

Is the union involved?

Yes

Time limits for filing?

Must be invoked at the outset of questioning if you think questioning may lead to discipline. The Agency does NOT have to inform the employee of rights or stop at all if employee does not request a rep!

Remedies Rescission of any retaliatory threats or discipline imposed because of invocation. May order that underlying discipline (subject of investigation) be rescinded. Posting of a notice of a violation. Arguably, other information obtained at a meeting in violation of Weingarten rights could also be excluded.

Cost? Free

https://www.umass.edu/usa/weingarten.htm

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Request for Information (RFI)

What it covers?

Information may be requested by the Union regarding any topic that the Union believes is particularly needed to properly represent an employee/s in a representation matter. Union MUST establish a particularized need to request information. Not difficult to establish but must tie to the Union’s representational duties.


CFR 7114(b)(4)


Yes


No defined time limit but must be related to a current issue that the Local is representing an employee on.

Remedies Violation of RFI would be filed as an ULP; see ULP remedies.

Cost? Free

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Freedom of Information Act

What it covers? Any information related to an employee’s/s’ employment with an agency, not limited to current individual representation matters.


www.foia.gov www.foia.gov/report-makerequest.html for list to contacts by Agency. Laws: 5 U.S.C. § 552


Can provide general guidance in how to file, but does not typically file for the employee.


No time limit.

Remedies Response to information and/or the Agency claims a privacy violation/release of information would otherwise violate a law. Office of Government Information Services at the National Archives and Records Administration performs mediation services if employee and Agency cannot come to terms on the information sought. If all administrative remedies fail, an employee may file an action in Federal Court

Cost? Fees may apply based on the type of information requested, but waivers may be available for certain individuals who qualify. Need to check with your independent Agency FOIA liaison for more information.

http://www.foia.gov/

http://www.foia.gov/report-makerequest.html

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Bargaining/Negotiation Process

What it covers? Two different types of bargaining: I&I and SubstantiveI&I : a duty to bargain on the procedures that management will follow in implementing its decision on changes to working conditions as well as on appropriate arrangements for employees expected to be adversely affected by the decision. Agency is subject to I&I even if there is a Direct Management Right involved in the change in working conditions. I&I only covers changes in working conditions that has more than a de minimus impact on employees.

Substantive: Mid-Term Negotiations, contract negotiations. Management DOES NOT have to bargain proposals if they interfere with a Management Right. Need to watch out for the Covered By Doctrine during Mid-Term Negotiations.

Where to look for more info? Labor Agreement Information Retrieval System (LAIRS) Negotiability Determinations https://apps3.opm.gov/portal/page/portal/LAIRS_Main/INFORMATION:TAB58293 Section 7106 of the Federal Labor Relations Statute- Management Rightshttps://www.flra.gov/Guidance_scope%20of%20bargaining

Is the union involved? Yes

Time limits for filing? Collective Bargaining Agreement (CBA) will define the timelines for Negotiations; all other negotiations are subject to the notice in change in working conditions, or by joint agreement.

Remedies All of the remedies available for ULP process, arbitration fees if referred to arbitration by FSIP and arbitrator finds bad faith on the part of the Agency.

Cost? Free

https://apps3.opm.gov/portal/page/portal/LAIRS_Main/INFORMATION:TAB58293

https://apps3.opm.gov/portal/page/portal/LAIRS_Main/INFORMATION:TAB58293

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Federal Labor Relations Authority (FLRA) Action

What it covers? Unfair Labor Practices (ULP); 8 specified violations of 7116(a) dealing with Union rights. Federal Service Impasse Panel; used when Parties are stalemated during negotiations. Representation Petition Issues; changing the constructs of the bargaining unit. Please contact your local general counsel .


www.flra.gov Laws: 5 U.S.C. §§ 7100, et. seq. ULP 5 U.S.C. §7116 5 U.S.C. 5596 The Back Pay Act


Yes


ULP: 6 months from the date of the incident. FSIP: must be related to a current negotiation. Representation: must be related to a current change/desired change in structure of BUE.

Remedies ULP: Back pay; rescission of Agency action; cease and desist; posting of Agency violation in common areas; retroactive bargaining order; attorney’s fees; Generally there is a 2 year statute of limitations for Back Pay under the FLSA but maybe extended to 3 if there was foul play on the part of the Agency. FSIP: only attorney’s fees if arbitrator finds bad faith on the part of the Agency. Representation Issues: N/A

Cost? Free

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Grievance Process

What it covers?

Any situation that may arise or is covered by the contract. This includes but is not limited to: Unwarranted disciplinary actions, unfair and unequal treatment, improper pay, leave/break issues, etc.. Each contract is different and will have different actionable items. YOU NEED TO KNOW YOUR CONTRACT!


Collective Bargaining Agreement (CBA) Contact Local Executive Board.


Exclusive Representative for grievance process itself and arbitration. Only with a special waiver may another representative be used for arbitrations.


Specific to Local CBA. Generally, clock does not start until the employee knows of a violation.

Remedies Only entitled to a remedy to make the employee whole (may include out of pocket expenses, but no pain and suffering)

Cost? Free for employee. If arbitration is invoked, the Local will be responsible for their share of the arbitration fees pursuant to the Local’s Collective Bargaining Agreement.

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Merit Systems Protection Board (MSPB) Complaints

What it covers? Adverse Actions (removal, demotion, more than 14 day suspension, reductions in grade and pay, and furloughs for 30 days or less), reductions in force and certain performance-based actions. May handle mixed cases based on EEOC allegations, may be referred PPP cases from OSC. May also take Individual Right of Action (IRA) cases, Veteran Employment Opportunity Act Cases (VEOA) cases or cases re Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA).NOT ALL EMPLOYEES ARE COVERED! For example, exclusions: Non-Appropriated Fund Employees, Probationary Employees, Postal Service, Political Employees, etc. Contact Local General Counsel for any ?’s.


www.mspb.gov Laws: Merit System Principles-(5 USC § 2301); Jurisdiction-5 C.F.R. § 1201.3; Affirmative Defenses - 5 U.S.C. § 2302(b); IRA Appeals (must go through OSC first) - 5 U.S.C. §§ 1221(a), 2302(b)(8); VEOA (must go to Secretary of Labor first) - of 5 U.S.C. chapter 33 Uniformed Services Employment and Reemployment Rights Act of 1994 (must go to VETS first)


No guarantee of representation in these cases, but cases may be submitted to Local General Counsel for Review ASAP to prevent timing issues..


Adverse Actions- 30 Days after a final decision in an Agency action or 30 days after the first day of the disciplinary period, whichever is LATER. IRA -can be filed if the Office of Special Counsel: closes the case or does not seek corrective action within 120 days.

Remedies Corrective Actions: job restoration, reversal of suspensions and other adverse actions, reimbursement of attorney's fees, back pay, damages. medical and other costs and damages. For IRA Whistleblower , Hatch Act, No Fear Act violations, disciplinary action including removal, reduction in grade, suspension or reprimand, debarment from federal employment (up to five years), and civil penalty USERRA/VEOA-order for compliance; attorney’s fees and costs.

Cost? Free. However, only dues paying members MAY submit their case for the General Counsel to review. If an individual’s case is not accepted by the General Counsel, and they hire their own attorney, they will incur that cost. There is no requirement to have an attorney; non-attorneys can be a rep.

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Tool EEO Complaint

What it covers? Harassment or unfair treatment due to race, color, religion, sex (including pregnancy), national origin, age, disability, or genetic information; includes hostile work environment, but hostile work environment must be tied to one of the aforementioned factors


www.eeoc.gov/federal/ Laws: Title VII of the Civil Rights Act of 1964 (Title VII), The Pregnancy Discrimination Act, The Equal Pay Act of 1963 (EPA), The Age Discrimination in Employment Act of 1967 (ADEA), Title I of the Americans with Disabilities Act of 1990 (ADA), Sections 102 and 103 of the Civil Rights Act of 1991, Sections 501 and 505 of the Rehabilitation Act of 1973 and The Genetic Information Nondiscrimination Act of 2008 (GINA)


No guarantee of representation. A Local may submit a DUES PAYING members case to their Local General Counsel for a review based on merit. Locals must get the case to Local General Counsel ASAP after the ROI and/or Request for HearingIssued.


45 days from the event that gives rise to the complaint.

Remedies Corrective Actions: job restoration, reversal of suspensions and other adverse actions, reimbursement of attorney's fees, back pay, medical and other costs and damages.

Compensatory Damages (out of pocket expenses, lost wages/leave, attorney’s fees, including pain and suffering)

All monetary damages capped at 300,000 (if employer has more than 500 employees)Cost? Free. However, only dues paying members MAY submit their case for the General Counsel to review.

If an individual’s case is not accepted by the General Counsel, and they hire their own attorney, they will incur that cost. There is no requirement to have an attorney; non-attorneys can be a rep.

Case Examples• The complainant alleged the agency discriminated against her on the bases of

race, color, disability, age and reprisal for EEO activity when it took various actions, including not selecting her for six positions and giving her an undeserved performance evaluation. The EEOC AJ rejected the claims of race, color and disability discrimination, but found age discrimination for two of the disputed positions and reprisal. The EEOC found the AJ's findings of age discrimination were not supported by the record. However, the EEOC awarded attorney's fees of $88,197.48 and compensatory damages of $13,025 for the agency's reprisal

• Conrad v. Department of Justice $100,000 non-pecuniary reprisal-based harassment, removal from supervisory duties. The reprisal occurred over a period of at least 19 months and had a continuing impact on the complainant. Statements from the complainant, a number of family members, a coworker, and doctors established that the complainant suffered major depression that required hospitalization and medication. He experienced anxiety, diminished enjoyment of life, difficulty with his family relationships, loss of his marriage, sleeplessness, loss of concentration, loss of memory, and weight fluctuations. His professional reputation was damaged and a doctor described him as a "beaten man who has not fully emerged from the cloud surrounding his humiliation in his work as an Assistant U.S. Attorney."

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Office of Special Counsel

What it covers? Whistleblower protection;Safe Harbor for Disclosure of fraud, waste, and abuse at Agency; improper political activity (Hatch Act); Prohibited Personnel Practices (PPPs); IRA Appeals (must go through OSC first) Uniformed Services Employment and Reemployment Rights Act (Veterans’ Rights) NO FEAR ACT enforcement.


www.osc.gov 5 U.S.C. §§ 1221(a), 2302(b)(8)


Union can give general guidance on how to present a complaint. However, the OSC is a separate government entity. If the OSC accepts the case, they prosecute it without Union involvement.


No time limit per se but once the complaint is filed, there may be deadlines. Very important to READ ALL letters from OSC.

Remedies PPPs/ Whistleblower - OSC may refer the case to MSPB if the Agency fails to take corrective action and/or fails to settle with OSC or if the OSC decided to terminate its investigation into the matter; see MSPB remedies.

Cost? Free

(1) discriminate against an employee or applicant based on race, color, religion, sex, national origin, age, handicapping condition, marital status, or political affiliation;(10) discriminate based on personal conduct which is not job-related

and does not adversely affect the on-the-job performance of an employee, applicant, or others;

(2) request or consider employment recommendations based on factors other than personal knowledge or records of job-related abilities or characteristics;(4) deceive or willfully obstruct anyone from competing for employment;(5) influence anyone to withdraw from competition in an effort to improve or injure the employment prospects of any person;(6) give an unauthorized preference or advantage to anyone so as to improve or injure the employment prospects of any particular employee or applicant;(7) engage in nepotism (i.e., hire, promote, or advocate the hiring or promotion of relatives);

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GROUP 1 Discrimination

}GROUP 2 Hiring Practices

(8) engage in reprisal for whistleblowing – generally, a person with personnel authority cannot take or fail to take a personnel action with respect to an employee or applicant because of a disclosure of information by the employee or applicant that he or she reasonably believes evidences a violation of a law, rule or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety. The prohibition does not apply, however, if the disclosure is barred by law or is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs, except when such a disclosure is made to the Special Counsel, the Inspector General, or a comparable agency official.

(13) implement or enforce a nondisclosure agreement or policy lacking notification of whistleblower rights.

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}GROUP 3 WhistleblowerProtections

(3) coerce the political activity of any person;(9) take or fail to take a personnel action against an employee or applicant for exercising an appeal, complaint, or grievance right; testifying for or assisting another in exercising such a right; cooperating with or disclosing information to the Special Counsel or to an Inspector General; or refusing to obey an order that would require the individual to violate a law;(11) take or fail to take, recommend, or approve a personnel action if taking or failing to take such an action would violate a veterans’ preference requirement; or

(12) take or fail to take a personnel action, if taking or failing to take the action would violate any law, rule or regulation implementing or directly concerning merit system principles at 5 U.S.C. § 2301.

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GROUP 4 Retaliation

GROUP 5Catch-All

1. Must file with OSC first, unless there is a direct appeal right for the alleged prohibited personnel practice to the MSPB.

a. OSC takes the case and the Agency refuses to settle, than the OSC will refer the matter to the MSPB and give it’s recommendation. The employee does not need to file anything extra.

b. OSC fails to complete investigation in the designated time period, individual can file an Individual Right of Action case with the MSPB.

c. OSC makes a preliminary determination that the allegations cannot be substantiated and deny the case, then the individual can file an Individual Right of Action with the MSPB.

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OSC investigation leads to more expansive telework policy at U.S. Department of Defense. An Attorney Advisor with the Department of Defense, Defense Finance and Accounting Service alleged that the agency unlawfully prevented employees from participating in telework based on their marital status. According to the employee, the agency’s policy of limiting telework to those employees who were separated from a spouse or minor child as a result of the Office of General Counsel’s permanent change of duty station was discriminatory. As a result of OSC’s investigation, the agency took action to change the policy to allow all eligible employees to telework, subject to the discretion of the employees’ supervisors. OSC negotiates $126,000 settlement in case involving improper termination of U.S. Coast Guard employee. An employee of the U.S. Coast Guard alleged that he was improperly terminated during his probationary period in violation of his due process rights. In his removal letter, the agency stated that the employee was required to serve a new probationary period when he accepted the position of Construction Inspector, and as such, he was not entitled to due process rights. The employee had signed a statement agreeing to a new probationary period when he took the new position. OSC determined, however, that the employee did not waive his due process rights by signing the probationary statement. The Coast Guard agreed to: 1) give the employee a monetary settlement of $126,000, and 2) issue the employee an SF-50 reflecting that he voluntarily resigned from his position.

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Inspector General (IG) Complaint

What it covers? Detect and deter waste, fraud, abuse, and misconduct (can also be filed with the Office of Special Counsel); Whistleblower Complaints (can also be filed with the Office of Special Counsel)


General DoD: www.dodig.mil Navy: www.secnav.navy.mil/ig/Pages/Home.aspx Army: www.daig.pentagon.mil Air Force: www.af.mil/InspectorGeneralComplaints.aspx Marines: www.hqmc.marines.mil/igmc/UnitHome.aspx Veterans Admin: www.va.gov/oig/


Union can give general guidance on how to present a complaint.However, the IG is a separate government entity. If the IG accepts the case, they handle it without Union involvement.


No time limit.

Remedies Fraud waste and abuse disclosures- if you give your name you can check on status of case processing, but the Agency does NOT have to disclose the ultimate outcome or how they are investigating. If you remain anonymous, they will not even give you the case status. If they close the case, then you can request the info through a FOIA. Whistleblower-all of those available for OSC remedies; see OSC remedies.

Cost? Free.

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Office of Personnel Management (OPM)

What it covers? Classification Appeals- challenginginappropriate PDs or level of work performance. (challenges may be filed/ might be required to be filed with the Local Agency first….check your CBA and Agency Instructions) Issue general guidelines on how policies are to be implemented in the federal Government;


www.opm.gov

Is the union involved? Typically classification appeals do not involve the unions, but may depending on facts of the case. General guidance may be given.

Time limits for filing? No time limit but MAY be limited in relief based on timing of filing. Also may need to consider the possibility of filing a grievance for a temporary promotion to be able to address back pay issue; any grievance would be time sensitive.

Remedies Demotion/Promotion or no change in position (get a cease and desist of work that is not delineated in the position). ***Note: In about 85 percent of cases, the classification or grading of the job does not change. Of the remaining 15 percent, recent trends show more positions or jobs are downgraded or result in another unrequested change than are upgraded.

A Federal employee is NOT entitled to back pay for periods of misclassification. United States v. Testan, 424 U.S. 392, at 406

Cost? Free.

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Occupational Safety and Health Administration (OSHA)

What it covers? Workers are entitled to working conditions that do not pose a risk of serious harm. To help assure a safe and healthful workplace, OSHA also provides workers with the right to:

Ask OSHA to inspect their workplace;Use their rights under the law without retaliation and discrimination;Receive information and training about hazards, methods to prevent harm, and the OSHA standards that apply to their workplace. The training must be in a language you can understand;Get copies of test results done to find hazards in the workplace;Review records of work-related injuries and illnessesGet copies of their medical records


https://www.osha.gov/index.html https://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-150.pdf#page=222


Typically no. However, the Local can be instrumental in documenting and encouraging people to file complaints if other administrative tactics are not working.


No time limit but OSHA really looks at the potential for imminent harm, so probably not the best idea to approach the subject months down the road. .

Remedies Unsafe working condition/s rectified by an outside entity who will have to report the Agency and their transgressions.

Cost? Free.

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Local Congress Person

What it covers? If you are concerned about any issue effecting your community it is your right as an American to inform your State and Federal Representatives. Contacting Congress regarding your concerns is encouraged by NAGE. We strongly believe in strength in numbers and typically you are not the only person who is concerned about the given issue. Contacting NAGE Federal before reaching out to members of Congress can be beneficial because we have the ability.


hhttp://www.house.gov/representatives/find/ http://www.senate.gov/general/contact_information/senators_cfm.cfm


Typically no. However, if your subject does concern NAGE we would like to help with your concern and assist in navigating your legislative concerns through congress.

Time limits? There is no set deadline, but it is better if you contact NAGE and congress quickly. The House of Representatives session is only 2 years and they only vote a few times a month.

Remedies Request that the Congressional office reply to your letter. This way you know they read it and they are then tied to whatever policy they support.

Cost? None, most offices have a “contact your congressman” tab on their website.

TAKE AWAY MESSAGE: In most circumstances, you will only be able to choose one complaint path, so choose wisely. Be sure to choose the path that best encapsulates the goals of the employee.

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Noted Exceptions: In certain circumstances you may be able to file these actions simultaneously regarding the same facts, including: ULP + Grievance OSC + EEOC.

Be sure to consult with your local General Counsel before advising an employee on this undertaking.

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2 Tool Weingarten Rights What it covers? “The Union shall be given the opportunity to be...

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