Why go to the MSPB or the EEOC?

September 7, 2011

The question is important, because the success rates overall in MSPB and EEOC litigation are pretty poor.

The answer, though, is that some cases simply cannot be won without discovery, which is to say they cannot be won at arbitration.

The problem is that, in my experience, it seems that many federal sector managers believe they have a license to lie to the injury of staff they don’t like. If we take the case to arbitration, we have to search for contradictions between what the manager says on direct examination and what he or she said in the proposal or decision letter.

If we take the case to the EEOC or the MSPB, we have, in addition: the agency’s official response (in MSPB cases), investigative affidavits (in EEOC cases), answers to interrogatories, and depositions. At each step, the average dishonest manager is tempted to simply make up whatever story sounds best at the time, without bothering to check with his or her earlier versions. By the time we get to hearing, we can have the managers tied up in the webs of their own deceit. In addition, in some cases the manager effectively gives up, and at some stage either deliberately or inadvertently commits truth.

There are costs, though. First, it requires either an attorney nor a non-attorney who has been trained in effective discovery techniques. (By the way, few law schools teach this subject, at least as a required course.) It’s not difficult, but it must be learned.

Second, the deposition transcripts have to be paid for.

Third, if the union’s officers and reps haven’t been trained, an attorney has to be hired.

Where could the money for this possibly be found? I mentioned in the previous post that the AFGE locals and councils have about $55 million in their bank accounts. Aggressively litigating every case with a substantial likelihood of success could be easily paid for (leaving aside the prospect of recouping the costs through attorney fee awards).


August 26, 2011

According to its 2010 report to the labor department, national AFGE has $47,246,000 in assets and $67,172,00 in liabilities, meaning it is $20 million in the hole.

In contrast, the federation’s locals and councils collectively have over $65 million in net assets (total assets minus total liabilities).

The following chart shows the actual reported assets and liabilities for each local and council with more than $200,000 in the bank, and then estimates of total assets for the groups of locals with between $100,000 and $200,000, with between $50,000 and $100,000, and with between $0 and $50,000. In each of those groups the actual liabilities for its components are added up. For each group and for the total, the net assets are the assets minus liabilities.  To see the chart, click on the following:


I plan to discuss the significance of this in later blogs.

Why locals don’t try to increase membership

August 25, 2011

A very common response by local leaders to suggestions to increase membership is that this is merely an effort to get more money into the national’s treasury. These leaders correctly figure that, given the way they’ve been taught to represent their bargaining units, higher membership will not benefit either the leadership or the bargaining unit employees.

What this actually means is that these leaders have been mis-educated and misled. A local union cannot achieve the goals it ought to without the participation and support of a strong majority of the employees in the bargaining unit. With, say, 30% membership, the local is forced to settle for a role that is pathetically weaker than the labor-relations law originally presumed unions would play.

Until a local decides to bargain from a position of strength, and gets the training on how to do this, it probably does make sense to not make any effort to substantially increase the local’s membership.

Comments on immigration, around 1900

June 10, 2010

mr. dooley — immigration


May 5, 2010

There is an extremely good reason that there are so many free riders in the federal sector labor movement:  they are responding to the messages sent by the union leaders themselves.

To begin with, during organizing campaigns the union often expressly says, “we want you to sign this petition, but that doesn’t mean you have to join or pay dues,” and “please vote for the union, but if the union wins you won’t be required to join or pay dues.”

And so, eventually, 50% of the employees vote in favor of union recognition, secure in the knowledge that this does not mean their own membership is important.

The second reason for the free rider environment is that during the course of representation the union leaders insist that the union is effective notwithstanding the fact that only 30-35% of the employees are members.  The non-members accurately interpret this as saying that their joining the union is not necessary for making the union effective.

Is it illegal for management to let union-represented employees have compressed workweeks or flexible work hours if that’s not provided for in the union contract?

April 2, 2010

Yes, it is illegal.  The law authorizing compressed workweeks and flexible work hours expressly says that these alternatives cannot be used unless agreed to in a union contract:
5 U.S.C. § 6130.  Application of programs in the case of collective bargaining agreements

(a) (1) In the case of employees in a unit represented by an exclusive representative, any flexible or compressed work schedule, and the establishment and termination of any such schedule, shall be subject to the provisions of this subchapter and the terms of a collective bargaining agreement between the agency and the exclusive representative.
(2) Employees within a unit represented by an exclusive representative shall not be included within any program under this subchapter except to the extent expressly provided under a collective bargaining agreement between the agency and the exclusive representative.

It might or might not be an unfair labor practice, as defined by 5 U.S.C. § 7116(a)(2), for management to allow these flexibilities without the written agreement of the union, but who cares?  Proving an unfair labor practice usually only results in a posting some years after the fact.  The important point is that management’s unilateral establishing of alternative work schedules entitles each employee to time and half for each hour of work over eight hours in a day:

5 C.F.R. § 551.501 Overtime pay.

(a) An agency shall compensate an employee who is not exempt under subpart B of this part for all hours of work in excess of 8 in a day or 40 in a workweek at a rate equal to one and one-half times the employee’s hourly regular rate of pay, except that an employee shall not receive overtime compensation under this part –

*         *         *

(6) For hours of work that are not “overtime hours,” as defined in 5 U.S.C. 6121, for employees under flexible or compressed work schedules . . .

As I read this, if an agency lets employees work four 10 hour days, but this isn’t provided for in a union contract, those employees are entitled to time and half for two hours each day they worked.  Same thing with flexible work schedules.  If an employee works nine hours one day, and has been given a credit hour that he used to in order to work seven hours on another day, he is still entitled to time and half for the overtime hour if the flexibility is not provided for in the contract.

The entitlement goes back three years, by the way.

Does management commit a ULP when it implements AWS for BUEs without a CBA?

March 26, 2010

I recently ran across the following passage in G.K. Chesterton’s “Orthodoxy,” published in 1908:

It is a good exercise to try for once in a way to express any opinion one holds in words of one syllable. If you say “The social utility of the indeterminate sentence is recognized by all criminologists as a art of sociological evolution towards a more humane and scientific view of punishment,” you can go on talking like that of hours with hardly a movement of gray matter inside your skull. But if you begin “I wish Jones to go to gaol and Brown to say when Jones shall come out,” you will discover, with a thrill of horror, that you are obliged to think. The long words are not the hard words, it is the short words that are hard. There is much more metaphysical subtlety in the word “damn” than in the word “degeneration.”

at 131.

Thirty years later, George Orwell explained that bad writing reflects poor thinking or, worse, the fact that one’s real and declared aims are different. Bad writing is essential to lying. He also noted, however bad writing has become habitual, and that the habit can be broken:

What is above all needed is to let the meaning choose the word, and not the other way around. In prose, the worst thing one can do with words is surrender to them. When you think of a concrete object, you think wordlessly, and then, if you want to describe the thing you have been visualizing you probably hunt about until you find the exact words that seem to fit it. When you think of something abstract you are more inclined to use words from the start, and unless you make a conscious effort to prevent it, the existing dialect will come rushing in and do the job for you, at the expense of blurring or even changing your meaning.

“Politics and the English Language,” http://www.mtholyoke.edu/acad/intrel/orwell46.htm

What does all this have to do with the question posed at the outset?

The problem with the question posed at the outset is that the acronyms do not convey any concrete images, to yourself or your reader. The sentence does not involve employees setting their own work hours, it does not mention employees at all; nor union contracts, nor illegal acts.

A little better would be to at least write out the words underlying the acronyms:

Does management commit an unfair labor practice when it implements alternative work schedules for bargaining unit employees without a collective bargaining agreement?

But even this would benefit from translation into English. For example:

Is it illegal for management to let union-represented employees have compressed workweeks or flexible work hours if that’s not provided for in the union contract?

My guess is that the first version of the question would be unintelligible to 99% of the employees, while nearly everyone can understand the third version.

Why use the jargonish acronyms? To save paper? Paper is cheap. To save time writing and reading? Probably, but at the cost of the writer and the reader knowing what the question means.

Because it is a technical question which requires precise language? Actually, ‘bargaining unit employee’ conveys less information than does ‘union-represented employees,’ and more people understand what is meant by a ‘union contract’ than know what a ‘collective bargaining agreement.’

Surely, ‘commit an unfair labor practice’ is more precise than ‘be illegal.” Not really. As will be discussed another time, the important question is whether management has violated the work-hour law, not whether management has committed an unfair labor practice.


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