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AFGE Rep Wing Recap: November 2012

VA VIOLATES OWN POLICY IN DENYING PROMOTION TO EMPLOYEE
The Veterans Affairs Department violated its own policies when the human resources department denied an employee a promotion that had already been approved by her director, an arbitrator has ruled.
The case involves a Hybrid Title 38 Social Worker who learned in 2011 that she had been denied a promotion to GS-12 back in 2009 after the promotion had been approved by the Professional Standards Board and her director. Despite the approval, a classification specialist in the HR department summarily rejected the promotion on the basis that the Social Worker was doing GS-11 work and didn’t warrant the grade increase.
AFGE Local 1206 filed a grievance on the member’s behalf, alleging that the VA had violated its own handbook and policies, and AFGE Legal Rights Attorney Michael Pazder represented the case at arbitration. The VA Handbook says a director’s decision on a promotion following Board action is final, so HR did not have the right to reverse the decision since it was never brought back to the Board or the director for reconsideration. VA policy also makes clear that Hybrid Title 38 employees can be promoted beyond the full performance level of their position based on their qualifications and experience if so determined by the Board, as was the case here.
The agency refused to correct this when notified, claiming the Board had erred in approving the promotion and that processing an allegedly unwarranted promotion would “unjustly enrich” the employee. Testimony at the hearing revealed that HR personnel, and the director who now said his decision was incorrect even though he never formally reversed it, have an astonishing lack of knowledge of VA policies and how promotions are supposed to work for Hybrid Title 38 employees vs. Title 5 employees.
The employee will be retroactively promoted with back pay, including any subsequent step increases she would have received had the promotion been implemented at the time.

BOP FAILURE TO FILL MISSION CRITICIAL POSTS VIOLATES MASTER AGREEMENT
The Bureau of Prisons Federal Correctional Institution in Talladega, Ala., improperly vacated mission critical posts in violation of the Master Agreement between the agency and AFGE, an arbitrator has ruled.
Between 2004 and 2005, BOP instituted the “Mission Critical Roster” program, under which prisons were supposed to place posts on the roster only if they were mission critical. This resulted in a substantial reduction in the number of staffed posts at various prisons. However, even with this reduced number of posts, BOP regularly failed to fill mission critical posts at various facilities, including FCI Talladega.
Local 3844 believed the prison was penny pinching and didn’t want to pay Correctional Officers overtime to fill the positions. The Local filed a grievance, arguing that the failure to fill a mission critical post without good cause violated Article 27 of the Master Agreement, which requires BOP to reduce the inherent hazards of a correctional environment to the lowest level possible without relinquishing any management rights.
AFGE Assistant General Counsel Matthew Milledge represented the Local at the arbitration hearing, where the agency raised a number of procedural and substantive arguments that were struck down by the arbitrator. The arbitrator agreed with AFGE’s argument that Article 27 prevents the BOP from vacating posts without good cause and found that none existed. The arbitrator ordered the agency to pay overtime to any employee who would have received it but for the agency’s violation of the Master Agreement.
D.C. EMPLOYEE WINS REINSTATEMENT, BACK PAY AFTER WRONGFUL REMOVAL
A D.C. Department of Consumer and Regulatory Affairs employee who had been removed without just cause in 2007 finally has been reinstated with full back pay and other entitlements, thanks to dedicated representation of AFGE Assistant General Counsel Leisha Self. An arbitrator in 2009 ruled that the employee, a member of AFGE Local 2725, had been removed improperly but left the remedy up to both parties to settle. DCRA appealed the case at this point, resulting in a long delay for the employee for a remedy.
The agency refused to settle on remedy even after it lost its appeal, so the case was returned to the arbitrator, who ordered the employee reinstated with all of the back pay and benefits requested – including authorizing the employee to use his substantial accrued annual leave without forfeiture. In addition, the arbitrator awarded attorney’s fees of $87,531, plus the amount that AFGE expended on the post-arbitration remedy reply.

ARBITRATOR OVERTURNS BOP OFFICER SUSPENSION
An arbitrator has overturned a seven-day suspension against a Bureau of Prisons senior officer specialist that was ordered by the agency 16 months after the incident in question.
In March 2009, the officer at the U.S. Penitentiary in Leavenworth, Kan., shoved a fellow officer twice during a workplace dispute. In accordance with agency policy in such matters, a Threat Assessment Committee was convened within days of the incident and issued its findings several days later, ruling that the incident was an isolated occurrence that warranted no further action. The agency assigned an investigator to the case nearly a year after the incident and re-interviewed the key witnesses who had earlier provided statements to the Committee. Based on this investigation, BOP proposed a 14-day suspension against the officer in May 2010 that was subsequently reduced to a 7-day suspension by the prison warden in July 2010.
AFGE Local 919 then filed a grievance against the agency, contending the suspension was too harsh considering the circumstances and that the agency violated the terms of the Master Agreement, which requires the timely disposition of disciplinary matters. AFGE Legal Rights Attorney Hampton H. Stennis argued the case at arbitration. The arbitrator agreed with the union, stating, “While some discipline would have been justified had it been timely imposed, the delay in this case leads me to conclude that the grievance should be sustained in its entirety.” The suspension will be expunged from the officer’s record and the officer will be made whole for any earnings lost as a result of the suspension.
AFGE SETTLES CASE IN FAVOR OF DC HHS EMPLOYEE
District 14’s newest National Representative Johnnie Walker recently settled a case for a D.C. Department of Health and Human Services employee and AFGE member. The member faced removal from his position after being charged with inappropriate conduct, negligence in the performance of his job duties, disruptive conduct and failure to complete tasks. Despite the evidence mounted against the employee, AFGE was able to settle the case in the employee’s favor. The member received triple the settlement initially offered and was able to retire early on disability after 30 years of government service. This enabled the member to save his home from foreclosure while also affording him enough money to pay his mortgage through December. 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.

AFGE SCORES MAJOR WINS IN TSA REMOVAL CASES
The Office of Professional Responsibility Appellate Board (OPRAB) mitigated a removal to a 30-day suspension at Quad City International Airport near Moline, Ill. The TSO was charged with inattention to duty and failure to follow Standard Operating Procedures. The TSO at no time denied the charges and was honest about his unintentional violations, which did not cause any security breaches. AFGE sought a mitigated penalty due to his nearly 10-year service at TSA and prior military service. –Staff Counsel Bobby Walia
An Expert Security Training Instructor (ESTI) from George Bush Intercontinental Airport in Houston who was removed for off-duty misconduct, lack of candor and unprofessional conduct received a mitigated 14-day suspension with back pay after OPRAB sustained the unprofessional conduct charge. This unusual case stems from a February 2010 off-duty incident in which the ESTI was chased from an acquaintance’s apartment by a woman wielding a large butcher’s knife. No arrests were made and all witness accounts indicated the ESTI was not the aggressor. In October 2011, the ESTI was taken to a hotel by a TSA Office of Inspection agent, coercively interrogated and forced to take a polygraph. The ESTI then was removed from his position in August 2012. Thanks to GCO Intern Patrick DePoy for his great work. –Staff Counsel Gregory G. Watts
AFGE is making headway on appeals from terminations involving failure to pass recertification tests. In a series of recent decisions, OPRAB reviewed the cases of TSOs who failed the test and reversed the terminations due to, among other things, management’s failure to offer appropriate remediation. Recent wins include: O’Hare International Airport in Chicago, Newark Liberty International Airport and Bradley International Airport in Connecticut (Staff Counsel Julie Yeagle); Miami International Airport and Birmingham-Shuttlesworth International Airport (Staff Counsel Denise Duarte Alves); three cases at Los Angeles International Airport (Staff Counsel Bobby Walia); and two cases at Detroit Metro Airport (Assistant General Counsel Martin Cohen and Staff Counsel Julie Yeagle).
A TSO at Seattle-Tacoma International Airport who failed the Standard Operating Procedures Assessment (SOPA) three times got a last-minute reprieve. After an appeal was sent to OPRAB, AFGE reached agreement with management for the TSO to re-take the Assessment for a fourth and final time after 40 hours of remediation. The TSO was a nine-year exemplary employee who received a Level 5 PASS score in 2011. The TSO successfully passed the Assessment and will be fully reinstated. –Staff Counsel Bobby Walia

FLRA UPHOLDS AFGE WIN AGAINST OFFICE OF CUBA BROADCASTING
The Federal Labor Relations Authority has upheld an arbitrator’s ruling in a case brought by AFGE that found the Broadcasting Board of Governor’s Office of Cuba Broadcasting (OCB) illegally used a reduction in force action to fire union activists and other employees who had been outspoken critics of the agency. In a November 2011 decision, an arbitrator ruled that former OCB Director Pedro Roig had ordered the RIF and conducted it in such a way to target employees who had spoken out to Government Accountability Office investigators. The arbitrator discounted agency claims that the RIF was necessary because of budget shortfalls and lack of work, finding compelling evidence that Roig rejected attempts to explore cost savings in other areas before implementing a RIF, because he wanted to use budget shortfalls to target employees. The agency also refused the union’s demand to bargain over the impact of the RIF as required under the negotiated labor-management agreement. The agency had appealed the arbitrator’s ruling, but the FLRA rejected every argument made by the agency. AFGE Assistant General Counsel Leisha Self, who represented the AFGE Local 1812 members in their grievance, said that the decision should put every agency on notice that they cannot use budget shortfalls or funding cuts as an excuse to go after specific federal workers who the agency doesn’t like. The FLRA’s decision should have cleared the way for the 16 employees who were separated or otherwise affected during the RIF to be reinstated without loss of seniority or benefits. However, BBG has appealed the FLRA’s ruling to the D.C. Court of Appeals, which will result in further delay for the employees.
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.

Thank you, AFGE activists!!

AFGE activists, including both AFGE members and staff, worked tirelessly this election cycle in an effort to bring about the best election outcome for federal employees.  Their hard work paid off on Tuesday night when President Barack Obama was re-elected President of the United States and when numerous candidates who support unions and federal employees won their races.

Activists, led by the AFGE political action team, were especially effective after Labor Day and campaigned on the ground and out of AFGE offices.  AFGE activists made over 75,000 phone calls to members in targeted states from phone banks at headquarters and across the country and walked doors in key battleground states.

The AFGE Political Action team sent over a half a million pieces of mail to AFGE members in targeted states and held TeleTown Halls with almost 5,000 AFGE activists in key states during the closing weeks of the election. They conducted an aggressive online program through home emails, Facebook and other social media outlets.  Close to two million emails were launched to the home emails of AFGE members since Labor Day. The AFGE team also produced 8 different videos to inform, inspire and mobilize members.

This was the most aggressive election mobilization AFGE and the political action team have ever undertaken and IT WORKED!

Great job AFGE members and staff!

Will OMB Finally Ask the Richest Federal Contractors to Also Make Sacrifices?

The Bureau of National Affairs (BNA)  recently ran a piece, by AFGE National President J. David Cox,  on  the union’s concerns that federal contractors have yet to pay their fair share in efforts to balance the  federal budget. Read the story below.

Will OMB Finally Ask the Richest Federal Contractors to Also Make Sacrifices?

J. David Cox, Sr.

J. David Cox, Sr., is the National President of the American Federation of Government Employees.

President Obama recently told federal employees that he would postpone an excessively modest fiscal year 2013 pay raise of 0.5 percent until at least April 2013. This would not be the first sacrifice federal employees have made during the Obama Administration to reduce the deficit. The current, unprecedented two-year federal pay freeze will produce $60 billion in savings over ten years. The Unemployment Insurance extension legislation enacted in January took another $15 billion from new federal and postal employees in increased pension contributions for a current total of $75 billion in savings over ten years. Whether the 2013 pay adjustment is the president’s proposed 0.5 percent raise or another freeze, the additional savings to the government will be $28-30 billion.

The total sacrifice by federal employees works out to at least $103-$105 billion over ten years. Of course, this does not include the massive downsizing in federal employment that we expect will result from the discretionary spending caps in the ruinous Budget Control Act. No other discrete group of Americans has been asked to sacrifice more than federal employees—whether they be Department of Veterans Affairs (DVA) nursing assistants who care for our wounded warriors, Border Patrol agents who guard our borders, depot workers who repair sophisticated military hardware, labor inspectors who keep our workplaces safe, or Social Security workers who ensure that our elderly receive the benefits they deserve.

No sacrifices, even remotely comparable, have been asked of contractors. Currently, contractors in the Department of Defense (DOD) can charge taxpayers up to $760,000 annually for the compensation of a single employee. For the non-DOD agencies, only the top five most lavishly compensated employees at a contractor are bound by that cap; all other contractor employees can be compensated in excess of the cap. Since 1998, the compensation cap applicable to government contracts has more than doubled, from an egregious $340,650 in 1998 to an unconscionable $693,951 in 2010, which was then raised to its current obscene level in April. Over the last dozen years, the level of taxpayer-reimbursement to contractors for their compensation has risen 53 percent faster than the rate of inflation. The April raise was a 10 percent increase for contractors—at the same time military personnel received a mere 1.7 percent pay raise and federal employees received none at all. Of course, contractors often actually make millions of dollars per year because their firms richly supplement the already generous compensation provided by taxpayers with fees and profits earned on federal contracts.

Overcompensation to contractors is even more outrageous from the standpoint of taxpayers. It has been reliably estimated that the imposition of a $200,000 cap on compensation to all federal service contractors would result in savings to taxpayers of more than $50 billion over ten years. In other words, taxpayers would still compensate contractors generously—as much as a cabinet secretary, including the Secretary of Defense or the Secretary of Homeland Security—without any reduction in services, but at a tremendous savings by rationalizing manifestly excessive compensation to the richest 1 percent of contractors during a time of severe austerity. Only in Washington, DC—where the policy-making process has been so corrupted by money and influence—could such a proposal not be quickly adopted. Despite heroic efforts by Representative Paul Tonko (D-NY), the House Rules Committee has declined to make in order his floor amendments to the defense authorization bill, both last year and this year, to more reasonably cap contractor compensation. And procedural obstacles have prevented Representative Tonko from offering such common-sense floor amendments to the last two defense appropriations bills.

Fortunately, the Senate has been more active. Senator Barbara Boxer (D-CA) offered a floor amendment to the FY 2012 Defense Authorization bill, which was accepted without any opposition, which would have capped annual taxpayer reimbursement for contractor compensation at $400,000. In the conference report, her amendment was significantly watered down. Ultimately, the cap was not reduced. However, it was extended to cover all DOD contractors, although scientists and engineers could be exempted from the cap, entirely at DOD’s discretion. Thanks to Senator Joe Manchin (D-WV), the FY 2013 defense authorization bill includes a provision that would cap compensation for defense contractors at $230,000. Thanks to Senator Richard Durbin (D-IL), the FY 2013 Financial Services Appropriations Bill would cap compensation for all contractors at $400,000. Both the Manchin and Durbin provisions would retain exemptions for contractor scientists and engineers. Given that many of the best and most accomplished scientists and engineers in the world work for the federal government for far more modest compensation, it is clear that the work performed by exempted contractor scientists and engineers should be seriously considered for insourcing. Nevertheless, the exemptions eliminate a key argument against the imposition of a more reasonable cap—that more modest taxpayer reimbursements would deny the federal government specialized services.

The House versions of the FY 2013 Defense Authorization and Financial Services Appropriations measures do not include provisions comparable to the Manchin and Durbin caps, so whether contractors will finally be required to sacrifice in the name of budget reduction will be decided by House-Senate conferences. The position taken by OMB will likely be determinative. Historically, OMB has sided with the top 1 percent of contractors, endorsing a cap for only the five most lavishly compensated employees at each firm, which would leave the vast majority of contractors completely uncapped. Will OMB continue to insist that the top 1 percent of service contractors essentially not be required to make any sacrifices towards balancing the budget; that thousands upon thousands of contractors may continue to charge taxpayers annually for hundreds of thousands of dollars in compensation; and that a DVA nursing assistant on the night shift who makes less than $35,000 annually, deserves no pay increase at the same time contractors have been given a 10 percent pay increase?

In Presidential Race, Both Sides Woo Federal Workers

Below is an excerpt from an article featured on www.wmau.org. Please click here to read the full article.

Government workforce a key vote in 2012 election

By: Matt Laslo

Virginia is one of the most hotly-contested states in this year’s presidential election, which makes political outreach to federal workers in the region all the more important. Some Democratic campaigns think they have the votes of most federal employees in the bag, but it’s more complicated than one might think.

There’s been no shortage of Republican rhetoric about shrinking the government — even eliminating entire agencies — during this year’s presidential race. Presumptive Republican presidential nominee Mitt Romney epitomized the argument during a speech on the campaign trail after he won the Michigan GOP primary in February.

“I’m going to deliver on more jobs, less debt and smaller government,” Romney said. “We’re going to hear that day in and day out, more jobs, less debt and smaller government.”

It goes beyond rhetoric, though. Republican leaders want to extend a pay freeze for government employees and make them contribute 5 percent more to their pensions. These proposals haven’t gone unnoticed, especially by federal employee labor unions such as the American Federation of Government Employees.

Federal workforce feels like ‘an ATM’

Tom Webb, president of the AFGE Local 3615, sits down to talk presidential politics at the Juke Box Diner in Northern Virginia on a recent afternoon. He’s retired now, so he has time to sip coffee under the neon lights of this classic diner on a weekday afternoon.

The AFGE represents more than 600,000 federal workers, and many members are frustrated by Republican efforts to reduce compensation for federal employees, Webb says.

“We seem to be like an ATM machine for this Congress,” he says.

That’s been a recurring theme from Republicans. In Romney’s economic plan, the former Massachusetts Governor argues he can reduce the deficit by nearly $50 billion dollars by bringing federal compensation, including benefits, in line with the private sector.

Webb, who worked at the Social Security Administration for 38 years, bristles at some of what he’s heard from Romney about protecting taxpayer.

“Well we’re taxpayers too, you know, and we contribute to the economy,” Webb says.

Dems combatting fallout from Obama pay freezes

Rep. Jim Moran (D-Va.), who has represented Northern Virginia for more than two decades, acknowledges the federal workforce is more diverse than portrayed.

“Many people have the misimpression that virtually all federal employees vote Democratic. That’s not the case,” he says. “Now, blue-collar federal employees tend to vote Democratic.”

Click here to read the full article.

AFGE STATEMENT ON SUPREME COURT HEALTH CARE RULING

WASHINGTON – American Federation of Government Employees National President John Gage today issued the following statement in response to the U.S. Supreme Court ruling affirming the Affordable Care Act:

“The Supreme Court decision upholding the Affordable Care Act is a victory for everyone who believes all Americans are entitled to affordable, quality health care.

“Millions of Americans are already benefiting from the law, including federal employees, and the court’s decision ensures that all of the law’s provisions will become reality. Because of the Affordable Care Act, 3.1 million young adults have already received health coverage through their parents’ insurance. Because of the Affordable Care Act, 17 million children who are sick no longer are in danger of being dropped from coverage because of pre-existing conditions.

“And because of the Supreme Court’s ruling affirming the individual mandate and Medicaid provisions, health care coverage will now be extended to 30 million uninsured Americans – including up to 200,000 federal employees who can’t afford insurance through the Federal Employees Health Benefits Program.

“Now that this historic legislation has been upheld by the highest court in the land, it’s time for Republican leaders in Congress to stop their campaign to repeal the law and to focus instead on improving the economy and creating jobs.”

HUD Council Vice President Carolyn Federoff Explains the Federal Deficit

Watch AFGE HUD Council Vice President Carolyn Federoff’s presentation on the federal deficit which she gave during this year’s AFGE Legislative Conference.

Annual Legislative Conference Round-Up

Hundreds of federal and D.C. government employees have been in Washington, D.C. this week for the American Federation of Government Employees’ Annual Legislative and Grassroots Mobilization Conference. AFGE members from every major federal agency and representing all 50 states are in attendance. In addition to AFGE leaders, attendees heard from Senator Ben Cardin (D-Md.) and Leadership Conference on Civil Rights President Wade Henderson, as well as several other policymakers and opinion leaders.

Click here to check out the Annual Legislative Conference Rally Pics on Facebook!

Carolyn Federoff speaks during the plenary session at the AFGE Legislative Conference. Federoff is Vice Chair of AFGE’s HUD council and vice president of AFGE Local 3258.

Wade Henderson speaks during the Civil Rights luncheon at the AFGE Legislative Conference. Henderson is CEO of the Leadership Conference on Civil and Human Rights.

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