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AFGE’s Latest Legal Victories!

AFGE’s Latest Legal Victories!

The latest roundup of AFGE’s legal victories is now online for all to see. Check it out and pass it around to all your members!

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.

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