U.S. Court of Appeals overturns the FLRA’s decision on existing CBA and reaffirms NWS’ unilateral termination of the contract was illegal
– a message from our General Counsel
(August 3, 2020) As you may recall, NWS unilaterally and illegally terminated the existing/2001 Collective Bargaining Agreement (CBA) in July 2017. NWSEO took the matter to arbitration and an arbitrator ruled the termination was indeed illegal. The agency appealed to the FLRA, which overturned the arbitrator’s ruling. NWSEO appealed that ruling, and late last week, our NWSEO General Counsel reported that the U.S. Court of Appeals for the District of Columbia Circuit overturned the FLRA’s decision and reinstated the arbitrator’s award that the NWS illegally terminated the 2001 CBA. This means that until a new CBA is in effect, the entire 2001 CBA remains in full effect, and the President’s Executive Orders limiting official time and grievance rights cannot be applied to our bargaining unit.
NWSEO has now demonstrated, at the second highest court in the land, that the NWS has acted illegally in the most fundamental aspect of its labor relations- terminating its CBA - an action personally approved by Secretary of Commerce Wilbur Ross.
This is a profound victory not only for NWSEO, but for all the other Federal unions because the Court ruled that the FLRA has applied the wrong standard of review of arbitration awards and that they may not set aside arbitration awards if they deem the arbitrator’s interpretation of the CBA “unreasonable.” Using this improper standard, the FLRA has set aside nearly 2/3 of arbitration awards that have been in the union’s favor, but none that have been in management’s favor. Stated another way, the Court ruled that the FLRA may not substitute its judgment for that of an arbitrator’s interpretation of the terms of a CBA. It remains to be seen, however, whether the FLRA will correct its ways, or whether it will continue to set aside arbitration awards illegally and with impunity.
A copy of the decision is attached (link to pdf).
Grievances Filed in Support of ITOs and GS 5-12 METs
(July 31, 2020) This month, NWSEO filed three grievances on behalf of NWS employees involved in hiring panels and ongoing hiring actions, downgrades, and granting appropriate relief including back pay, compensation, and certification.
On July 10, NWSEO filed a grievance on behalf of a Senior Forecaster who was notified that he was selected for the Information Technology Officer (ITO) position but then removed from the certification due to the employee’s “lack of experience in the 2210 occupational series” and “no prior positions as IT Specialist.”
In the past, NWS employees could crossover to the ITO position from different positions within NWS. Also, Meteorologists (series 1340), Hydrometeorological Technicians (series 1341), Electronics Technicians (series 0856) and Hydrologists (series 1315) have qualified and were selected for ITO positions without having previously held an IT Specialist position. A 2020 NWSEO survey of current ITOs indicated that 66 percent of respondents were selected competitively from 1340 series applicants, with only five having IT-related degrees. This survey also showed that only 17 percent of ITO selections were previously IT Specialists.
The Executive Order (EO) on Modernizing and Reforming the Assessment and Hiring of Federal Job Candidates issued on June 26, 2020 focuses on modifying qualification and classification standards to eliminate degree requirements where possible. The EO states in part: “agencies assess candidates in a manner that does not rely solely on educational attainment to determine the extent to which candidates possess relevant knowledge, skills, competencies, and abilities.” This recent EO supports the NWS’ long standing past practice allowing qualified employees to cross over to different positions within the NWS.
NWSEO requested that the employee be reinstated to the certificate for the ITO position and his unofficial selection be made official with back pay. NWSEO also requested future applications for ITO positions be carefully reviewed based on experience and training as opposed to strictly based on whether the applicant previously held an IT Specialist position or has an IT degree.
The second grievance filed involves the January 28, 2020 addendum to the GS 5-12 Meteorologist Progression Memorandum of Understanding (MOU) that required employees to wait one pay period before being re-promoted. Higher graded meteorologists were applying for and being selected for entry level meteorologist jobs so they could transfer to another office. NWSEO received notification that management repudiated that agreement and the employees who received back pay because of the January 28, 2020 MOU would have to pay back that money. The three employees were downgraded without any advance notice and were later notified they had to pay back the monies received. These downgrades and backpay collections violated the MOU.
NWSEO requested the Agency abide by the January 28, 2020 Addendum to the MOU. The NWSEO requested that NWS send a notice to all employees, assuring that it will honor this MOU and will refrain from repudiating other MOUs in the future, or from otherwise engaging in bad faith bargaining or interfering with or restraining employees in the exercise of their rights under the Federal Services Labor-Management Relations (FSLMR) Statute. NWSEO requested that employees who were improperly downgraded be compensated for their waiting period, with their time-in-grade adjusted to show a one pay period waiting period before being promoted to their previously held grade and step.
The third and most recent grievance involves the Agency’s downgrades of employees without any notice of a pending downgrade, or due process resulting in a large loss of income. Although the employees’ grade and pay have been restored, NWSEO requests the Agency make systemic changes to its protocols so that no other unit employee is ever downgraded without first being provided adequate notice and opportunity to reply.
NWSEO is working to ensure fair labor practices protect the rights of all NOAA bargaining unit employees in five bargaining units. Your membership support is greatly appreciated!
House Appropriations Committee approved significant funding increases for NOAA and the NWS,
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