Labor and Employee Relations 2010: Federal Sector Imitates TV and the Movies

The author offers up a recap of the more bizarre and exotic stories in Federal sector labor and employee relations. Each year we think it couldn’t get wackier and each year it does. Again, we don’t make up these stories.

Each year we think it couldn’t get wackier and each year it
does. We always get comments that we
somehow invented these tales. We don’t make up these stories. As usual, we at Fedsmith rely on Susan Smith
to ferret out these stories and she did
so again this year but I got a chance to report on a couple myself as you’ll
see below.


Could be a New Cult Movie: I Married an Alien and Got Fired!

CPB, MSPB and the courts thought so as this Customs and Border Protection officer was fired
when the Agency found out she knew her husband was illegal and did nothing
about it before the wedding. According
to CBP rules, any such relationship is a prohibited association. Some might argue that
TSA should pay attention to this issue now that its employees are getting
legally intimate with air travelers.



Are There Too Many Rambo Movies on Cable?

Apparently having a really bad day,
a housekeeping aid at a VA Medical Center used profane language toward a
customer. When his supervisor took him aside to discuss the situation, he brandished
a knife and then made profane and disrespectful comments about his boss in the
presence of others.

As for the charge of having a
weapon at work, he argued to the agency deciding official that it was not a
weapon but a “utility utensil” that he used at work for handling
boxes. It turns out the knife was a Smith & Wesson S.W.A.T. II knife with a
3-¼ inch blade–not your standard utility knife. On appeal, the court was
particularly unimpressed with his argument about the knife being required for
his work.  Testimony before the MSPB indicated that his duties did not
include opening and breaking down boxes, and if they had, the agency would have
furnished the appropriate utility knife. Also it seems the employee’s
knife exceeded the size permitted for this kind of work.



The Plot Thickens: Too Far
Out for Hollywood?

This is the sad story of a medical technician whose duties included responsibility
for the drug testing process and was fired by the Navy for failing to provide a
random drug test sample when ordered to do so. His excuses were absolutely wonderful.  

First, he claimed that while standing in line waiting to fill the cup, He
found out that his father had had a heart attack.   He said didn’t stop to think, just ran out
of there to rush to old dad’s side.  But
when he got to Arizona, He wasn’t sure which city dad was in so he had to drive
to a different location. Unfortunately by then his dad had died. 

When asked to substantiate his excuse he
claimed that his sister has moved his dad’s body to Idaho—He wasn’t sure where
and she wouldn’t tell him. Upon the
Agency’s offer to help him find documentation, he added that he wasn’t really
sure what his dad’s name is and couldn’t provide any identifying information
and was estranged from his father since age three. In the end, his sister provided a note but it
didn’t mention his father’s passing. We
hope he finds a new career better suited to his talents. There is a National
Institute of Prevarication (No Kidding!). Maybe they have a vacancy.



Dancing with and Under the Stars

A group of Washingtonians (not sure if any were Feds) were arrested
for dancing at the Jefferson Memorial without a permit. Their story was that they were they were expressing “the
individualist spirit for which Jefferson is known.” They
sued the Park Police Officer who nabbed
them for his action in stopping the plaintiff’s “expressive dance”
honoring Thomas Jefferson’s birthday. The DC Circuit dismissed their suit. Maybe the Officer can get a guest judge spot on Dancing with the
Stars. He’s got the right credentials.



Remake of David and Goliath: David

Ralph Waldo Emerson said, “If you
shoot at a king you must kill him.” Failing to heed this famous quote, the Federal Labor Relations Authority
took on the National Labor Relations Board, in a way its bigger, older brother. The issue had to do with whether certain
lawyers in NLRB’s General Counsel’s office could be in the same bargaining unit
with each other. 

The D.C. Circuit
scolded the Authority, saying The Authority can
“assume” but it cannot provide any assurance the Board and the
General Counsel will be able to treat each labor issue as either a matter
entirely of Board-side or of GC-side concern or agree upon issues of common
concern; nor is there good reason to assume the history of coordination between
the two will survive consolidation of their employees into a single bargaining
unit. Good fences make good neighbors, as Robert Frost observed, but the
Authority proposes to take down the fence. Neither we nor the Authority can
blithely disregard the potential for discord in what have hitherto been viable
collective bargaining relationships.” 



OPM and MSPB Pen Country Song: “No, You’re Not Your Mom”

Imitation being the sincerest form of flattery, OPM and MSPB
rewrote country and bluegrass standard “I’m my own grandpa” denying the appeal
of a daughter for her father’s spousal death benefits after it was found he was
responsible for his wife’s death. 

local court, in a civil case, assigned the benefits to the daughter. OPM and MSPB perhaps remembering that a civil
war had been fought over local versus federal sovereignty said no go.   The Federal Circuit wasn’t so sure about the
song and returned the case saying, “Those uninitiated in the ways of government might suppose
a conclusion regarding whether a daughter was or was not also her mother’s
spouse, even on these scant facts, to be somewhat strange, and might even
suppose that a correct conclusion regarding that proposition is sufficiently
self-evident not to have required two years of administrative consideration.

One might even think there must have been something else at issue. In fact,
there was. It falls to us to explain to the Justice Department, the MSPB, and
OPM why it is now necessary, after all the administrative proceedings that
preceded, for this court to vacate and remand the matter so OPM can start over,
addressing the issues (the appellant’s) claim actually presented.” So maybe you are your mom after all.



The “Roman Holiday” Defense

The Defense Logistics Agency fired a Supervisory Supply
Technician in New Cumberland, Pennsylvania, for conduct unbecoming a supervisor
and conduct unbecoming a work leader.

Following a report by a co-worker that he had seen the
supervisor “rubbing the shoulders” of a female worker, the agency investigated.
As a result several women recounted the many occasions that the supervisor had
“made unwanted physical contact or directed sexual comments to them.”  He
offered up an explanation for the shoulder-rubbing—he testified that for ten
years he had lived in Italy, a “different culture” where people “express
themselves with their hands a lot,” a practice that he finds himself “doing it
even today.” Neither MSPB or the Federal
Circuit thought his cultural argument persuasive. Que sera sera as Dino may have crooned.



Best Movie of the Year: Way Up in the Air

Perhaps basing its decision on watching George Clooney in “Up in
the Air” (I can’t find a better reason), the FLRA established a bargaining unit
that cannot bargain. It held that the
Transportation Security Administration screeners were entitled to vote on
whether or not a union would represent them. Despite the fact that any benefit of the Federal labor statute would be
inapplicable (official time, arbitration, a contract, to name just a few), FLRA
swept aside these concerns and ruled that the screeners could unionize. After this miracle of invention, one can only
hope that FLRA tackles tooth decay next.



About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.