The Rep Wing - October 2011

October 2011

ARBITRATOR REINSTATES FT. BENNING GUARDS, OFFICER

An arbitrator with the Federal Mediation and Conciliation Service has reversed the termination of five security guards and one police officer at Fort Benning in Georgia, concurring with AFGE’s contention that there was no just cause for their removals. Ft. Benning management had proposed the terminations after the employees each failed to pass their semi-annual firearms skill proficiency test, which is a condition of their employment, following five successive attempts. However, the arbitrator determined that the employees were not provided with a “fair, unencumbered opportunity to pass the test on each attempt.” The arbitrator found that management failed to notify employees of revised protocols for the firearms testing, provide inadequate training following those changes, provide employees with feedback on their firing deficiencies, conduct a reasonable investigation of what happened and adequately consider a memorandum of agreement between AFGE and Ft. Benning regarding firearms training procedures. The arbitrator ordered the employees reinstated with full seniority and other rights, including back pay and interest for earnings lost since they were fired. Ft. Benning counsel agreed to cover more than $40,000 in AFGE’s attorneys fees and expenses. Assistant General Counsel Stuart Kirsch, who represented the employees, thanked Local 54 Secretary/Treasurer Ozia Scott for assisting on the case and National Representative Gary Harding for negotiating the MOA that was used as part of the defense.

TSO RECEIEVES REDUCED SUSPENSION WITH AFGE’S HELP

A Lead Transportation Security Officer at Northwest Arkansas Regional Airport has received a reduced penalty for entering a restricted area of the airport without authorization and making an allegedly defamatory remark toward a senior TSA management official. The Lead TSO argued that the area he had entered was not marked as a restricted area, so he did not realize he was not authorized to be there. He also apologized for an email he sent to the Assistant Federal Security Director and the Transportation Security Manager in which he asserted that the Federal Security Director had lied to him. The Assistant Federal Security Director reduced the proposed suspension from seven days to five days, noting the Lead TSO’s long record of service. AFGE Assistant General Counsel Judy Galat and Legal Intern Rushab Sanghvi handled the case.

FLRA AFFIRMS AFGE VICTORY IN DCMA REORGANIZATION

In a long-awaited decision, the Federal Labor Relations Authority denied the Defense Contract Management Agency’s attempt to overturn an AFGE victory invalidating an agency reorganization that served to voluntarily or involuntarily reassign workers in violation of their negotiated contractual seniority rights. The FLRA rebuffed the DCMA’s argument that the reassignments were a management right, asserting that DCMA could have raised the same argument before the arbitrator but failed to do so. The FLRA’s ruling is consistent with its regulations at the time the exceptions were filed; the FLRA’s regulations were revised effective Oct. 1, 2010. With the denial of the DCMA exceptions, the arbitrator’s award is now final. Under that award, DCMA must reconstruct the entire reorganization/reassignment process with proper account for the competition rights of equally qualified employees to avoid being involuntarily designated “candidates for reassignment.” Those who were wrongly identified as candidates and were geographically reassigned will be given the opportunity to return to their former geographic areas. Those who were wrongly identified as candidates and not ultimately reassigned with the result of employee “acceptance” of early retirements or resignations with severance payments will thereafter be given the opportunity to show that their retirements or resignations were improperly induced by the agency. Retired AFGE Attorney Kevin Grile argued the case on behalf of affected DCMA employees. AFGE’s General Counsel’s Office continues to represent AFGE Council 170 in the mock re-creation process.

BBG WITHDRAWS DISCIPLINARY ACTIONS AGAINST TWO EMPLOYEES

The Broadcasting Board of Governors has withdrawn disciplinary actions against two employees following several days of union testimony. After the employees had submitted EEO affidavits against their manager, the agency issued a three-day suspension for one employee and a reprimand for the other. AFGE Local 1812 filed a union-management grievance against the agency, recognizing the chilling effect this kind of action has toward the bargaining unit’s willingness to file EEO complaints and assist others with EEO complaints. AFGE Staff Counsel Leisha Self had presented several days of union testimony when the agency agreed to withdraw both disciplines, pay all of the back pay owed to the employees and pay both employees $5,000 in compensation for the pain and suffering they experienced. The agency also agreed to pay $20,000 in attorney fees.

DETAILS ON AFGE LEGAL VICTORIES AVAILABLE ONLINE

For a full view of cases published in the Rep Wing, click here or 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.

LABOR UNIONS PUSH TO DEFEAT UNCONSTITUTIONAL MARRIAGE LAW

AFGE and other labor unions are asking the U.S. Court of Appeals for the First Circuit to declare the Defense of Marriage Act (DOMA) unconstitutional. The unions’ amicus brief will be filed in the appeal of a Massachusetts case (Massachusetts v. U.S. Department of Health and Human Services) brought by federal employees with same-sex spouses and survivors of federal employees who were denied a variety of federal benefits under DOMA that are available to heterosexual married persons. In a lower court decision, the U.S. District Court for the District of Massachusetts declared Section 3 of DOMA unconstitutional on the grounds that it violates the equal protection principles embodied in the Fifth Amendment’s Due Process Clause. Section 3 of DOMA says that no state or other political division (including the federal government) may be required to recognize a same-sex relationship as marriage, even if it is considered such in another state. The labor movement is fighting this law because married same-sex employees are not granted access to the same federal benefits as heterosexual couples. DOMA denies these couples spousal healthcare benefits and equal access to family medical leave, threatens their retirement planning, and restricts their mobility by not allowing them to relocate for the purposes of employment. More than 15 labor organizations have signed on to the amicus brief, including AFGE, the National Association of Letter Carriers, the American Federation of Teachers, the American Federation of State, County and Municipal Employees, the International Brotherhood of Teamsters, and United Auto Workers.

PENALTY REDUCED FOR DISCIPLINED TSO

AFGE successfully won a reduced penalty for a Transportation Security Officer who was suspended for allegedly failing to report violations of the Transportation Security Administration’s Standard Operating Procedures. AFGE Legal Rights Attorney Allison Ziegler argued that the charge against the Honolulu International Airport TSO was not supported by the evidence and that the 30-day suspension imposed by the agency was overly harsh. The Office of Professional Responsibility Appellate Board agreed with AFGE, granting the appeal and mitigating the penalty to a 14-day suspension. The officer will receive more than two weeks of back pay.

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.

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