Tools of the Trade

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Tools of the Trade
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Tool   Weingarten Rights
What it covers? The Union shall be given the opportunity to be represented at any examination of an employeeif 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 May order that underlying discipline (subject of investigation) be rescinded.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
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Tool   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 Unions representational duties.
Where to look for more info? CFR 7114(b)(4)
Is the union involved? Yes
Time limits for filing? 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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Tool   Freedom of Information Act
What it covers? Any information related to an employees/s employment with an agency, not limited to current individual representation matters.
Where to look for more info? www.foia.gov   www.foia.gov/report-makerequest.html for list to contacts by Agency.   Laws 5 U.S.C. 552
Is the union involved? Can provide general guidance in how to file, but does not typically file for the employee.
Time limits for filing? 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.
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Tool   Bargaining/ Negotiation Process
What it covers? Two different types of bargaining II and Substantive II 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 II even if there is a Direct Management Right involved in the change in working conditions. II 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/INFORMATIONTAB58293 Section 7106 of the Federal Labor Relations Statute- Management Rights https//www.flra.gov/Guidance_scope20of20bargaining
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
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Tool   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 .
Where to look for more info? 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
Is the union involved? Yes
Time limits for filing? 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 attorneys 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 attorneys fees if arbitrator finds bad faith on the part of the Agency.  Representation Issues N/A
Cost? Free
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Tool   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!
Where to look for more info? Collective Bargaining Agreement (CBA)   Contact Local Executive Board.
Is the union involved? Exclusive Representative for grievance process itself and arbitration.   Only with a special waiver may another representative be used for arbitrations.
Time limits for filing? 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 Locals Collective Bargaining Agreement.
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Tool   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.
Where to look for more info? 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)
Is the union involved? No guarantee of representation in these cases, but cases may be submitted to Local General Counsel for Review ASAP to prevent timing issues..
Time limits for filing? 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 attorneys fees and costs.
Cost? Free. However, only dues paying members MAY submit their case for the General Counsel to review. If an individuals 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
Where to look for more info? 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)
Is the union involved? 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 Hearing Issued.
Time limits for filing? 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, attorneys 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 individuals 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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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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Tool   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.
Where to look for more info? www.osc.gov 5 U.S.C. 1221(a), 2302(b)(8)
Is the union involved? 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.
Time limits for filing? 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
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13 Prohibited Personnel Practices1, 2, 4, 5, 6,
7 and 10

• (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)

GROUP 1 Discrimination

GROUP 2 Hiring Practices
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13 Prohibited Personnel Practices8 and 13

• (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.

GROUP 3 Whistleblower Protections
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13 Prohibited Personnel Practices3, 9, 11 and 12

• (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.

GROUP 4 Retaliation
GROUP 5 Catch-All
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Getting to the MSPBPPP/Individual Right of
Action (IRA)

• Must file with OSC first, unless there is a
  direct appeal right for the alleged prohibited
  personnel practice to the MSPB.
• OSC takes the case and the Agency refuses to
  settle, than the OSC will refer the matter to the
  MSPB and give its recommendation. The employee
  does not need to file anything extra.
• OSC fails to complete investigation in the
  designated time period, individual can file an
  Individual Right of Action case with the MSPB.
• 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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Noteworthy Cases www.osc.org Recent Decisions

• 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 agencys policy of limiting telework to those
  employees who were separated from a spouse or
  minor child as a result of the Office of General
  Counsels permanent change of duty station was
  discriminatory. As a result of OSCs
  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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Tool   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)
Where to look for more info? 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/
Is the union involved? 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.
Time limits for filing? 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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Tool   Office of Personnel Management (OPM)
What it covers? Classification Appeals- challenging inappropriate 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  
Where to look for more info? 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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Tool   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 illnesses Get copies of their medical records  
Where to look for more info? https//www.osha.gov/index.html https//www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-150.pdfpage222
Is the union involved? Typically no. However, the Local can be instrumental in documenting and encouraging people to file complaints if other administrative tactics are not working.
Time limits for filing? 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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Tool   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.
Where to look for more info? hhttp//www.house.gov/representatives/find/ http//www.senate.gov/general/contact_information/senators_cfm.cfm
Is the union involved? 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.  
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Tools of the Trade

• 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.
  

• 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.