From the President's Desk - Joel Smith A74
Federal Employees Deserve Facts Over Puffery Regarding the Vaccination Mandate
Many federal employees are experiencing difficult decisions regarding the mandatory COVID-19 vaccination (Executive Order 14043 after the U.S. Fifth Circuit Court of Appeals (U.S. 5th Cir. Ct. App.) overturned the District Court’s abeyance on April 7, 2022. In short, federal employees have the following options:
Complete Full Vaccination
Qualify for a Reasonable Accommodation due to an established disability or religious belief
Retire or resign from federal service
Termination from federal service and hope for a potential reinstatement
We should probably clear up some common misconceptions regarding this federal vaccination mandate, so that our peers may make these decisions with full clarity. As a caveat, I am not an attorney. I am currently a second-year law student, however, we can address many of these issues.
First, the U.S. Supreme Court did not hold that Biden’s vaccination mandate was unconstitutional for federal employees. The U.S. Supreme Court (USCS) held that Congress did not extend the President’s authority through OSHA to enforce a vaccination mandate against private sector employers with at least one hundred (100) employees. The USCS, however, upheld the federal Centers for Medicare & Medicaid Services’ (CMS) COVID-19 vaccination requirement for health care workers at Medicare- and Medicaid-certified providers and suppliers. Thus, the USCS has only issued an opinion regarding the President’s authority through OSHA on private sector industries and has issued no opinion regarding federal employees.
Also, the U.S. 5th Cir. Ct. App. issued no opinions against federal employees regarding EO 14043. The U.S 5th Cir. Ct of App. held that federal district courts do not have the appropriate subject matter jurisdiction (SMJ) to adjudicate decisions or injunctions regarding EO 14043 in accordance with the Civil Service Reform Act of 1978 (CSRA). There is a common misconception that the US Constitution establishes the authority of a court to hear a case. The reality is that Article III of the US Constitution only establishes the existence of the US Supreme Court and lower courts. Congress is provided nearly full authority for determining which federal courts have the authority to adjudicate a case. The U.S. 5th Cir. Ct. App. held that MSPB is the only proper forum for federal employees to take their dispute against 14043; thus, the 5th Cir. Ct. App. directed the federal district court to vacate this injunction and dismiss this case so that the complaint can be properly filed through MSPB.
MSPB will almost certainly continue to remain as the appropriate forum. “Feds for Medical Freedom,” the third-party organization that filed the lawsuit, has stated that they intend to file an appeal for the 5th Cir. Ct. of Appeals to rehear the issue of SMJ en banc. Appeals court judges usually decide an appeal in a panel of three (3). A petitioner can request an additional appeal en banc which would permit a panel of twelve appeals court judges to redecide the legal issue. If this legal issue is even heard en banc, then the appeals court judges would only determine whether the federal district court has the SMJ to hear this case based upon the CSRA – the 5th Cir. Ct. App. would not be making a legal decision regarding the constitutionality of EO 14043. The likelihood that this issue would be held en banc is less than 0.017% likelihood from 2015 through 2019.
Federal employees should not expect any immediate relief from MSPB. The MSPB currently has a backlog of over 3600 cases due to a five-year lapse of the President failing to appoint a quorum. There was no MSPB quorum from 2018 until March 8, 2022, and it is feared that it will take approximately eight years to catch up with this MSPB backlog.
Lastly, both conservative and liberal courts have consistently held that an employer has a compelling interest for requiring COVID19 vaccinations. There is a common misconception that the Constitution applies to the private sector. Only in very rare circumstances are one’s constitutional rights applicable in the workplace, because the Constitution only applies the relationship of an individual citizen and his/her government. Federal employees are at a slight advantage because our employer is the federal government. The USSC recently held in a 6-3 decision that Navy had the authority to refuse to deploy SEALS that qualified for COVID-19 reasonable accommodations, because (as Justice Kavanaugh writes) the President is the Commander-in-Chief and should be given the widest degree of latitude possible for maintaining strategic and operational control. This opinion was agreed to by the three traditionally liberal justices and three traditionally conservative justices including: Chief Justice Roberts, Amy Comey Barrett, and Brent Kavanaugh.
Several members asked, “What is the Union doing about this?” You have seen our response. We have acted both politically and judicially. We have been able to provide time and are working to enforce equality and procedural fairness for Reasonable Accommodation requests. In the end, we likely do not have the authority to overcome the power of the President, Congress, and the Judiciary.
We are not going to sugar coat this. Many of us will be choosing between a vaccination and our ability to care for ourselves and our families. The reality of an adverse action for refusing to receive a vaccination without a qualifying reasonable accommodation is becoming more apparent by the day. The Union is here to assist you throughout your decision process—and this is your decision to make.
In solidarity,
Joel D. Smith
Document, Document, Document! by Nicholas Bassett DO 855
No one wants to be in the position of knowing that they have been wronged but can’t prove it. Let’s face it, management in SSA has no problem lying if it serves their purposes. Too many times has the Union been stymied in helping an employee because of lack of evidence.
We all know that the agency has a policy whether written or unwritten that management doesn’t put anything in writing if can help it. That is where you come in. You are the first and sometimes best defense in protecting yourself. You should all have a word document on your personal drive that you save conversations or anything that you feel is proof of something questionable that management is engaging in.
I have a word document that is 59 pages long and 32 megabytes of conversations with management from skype, emails, or notes from verbal conversations. Additionally, I save screenshots of the leave calendar so that I have a copy of what it looked like and not a revised copy that management my want to give during a grievance.
Also, the Union was sent screenshots of management hiding worktrack items in odd folders, those screenshots helped the Union show RO what management was doing. Management was forced to correct the action and was made to look bad to RO. If/when the time comes that you need to fight back against the agency it only helps you to have proof that is unalterable and irrefutable to the agency’s lies and denials.
Nicholas
Membership Pays…for Education by Courtney Bolton DO A72
Did you know that AFGE members qualify for free education benefits through the Union?
At the Eastern Gateway Community College (EGCC), union members can attend online classes to earn degrees and certificates in multiple areas of study, including Accounting, Business Management, Criminal Justice, Early Childhood Education, and Paralegal.
Classes at EGCC are taught in eight-week increments, allowing you to complete classes during six separate sessions per year. At EGCC, online students are given weekly assignments on Mondays, and have an entire week to complete these assignments. This means that your classes can be completed around your schedule, making college a feasible option for you with regard to both your time and your finances.
The current classes began on March 28th, which means that now is the time to enroll if you would like to begin your degree program during the first summer session of 2022.
Information on the free college benefit is available at AFGE.org, under the “Member Benefits” link. After clicking on “Member Benefits,” scroll down to “Education Benefits,” then click on the “Free College Benefit” link. Information about Eastern Gateway Community College is also available at www.egcc.edu.
For answers to specific questions on this benefit or other benefits offered through AFGE, please contact Donny Elder at 832-472-2400 or by email at benefits@donnyelder.com.
**If you would like for Donny Elder to explain a specific benefit in depth on the next Local
3184 newsletter, please email your requests to CBolton3184@yahoo.com.
DID YOU KNOW ?!?! Time Given to GIVE BLOOD - Oscar Gonzalez Jr DO 855
Article 31 Section 3 C States:
'Consistent with operational needs, management may excuse an employee who is donating blood without compensation for a reasonable amount of time; normally up to 3 hours, for the purposes of donation and recovery. Employees who donate blood platelets without compensation through a Hemapheresis Program will normally be authorized up to four (4) hours of excused absence. However, the total administrative leave will be limited to the remaining scheduled hours of duty on that day. An employee who is not accepted for donating blood/blood platelets is only entitled to the time necessary to travel to and from the donation site and the time needed to make the determination. Absence for blood/platelet donations must be approved in advance.'
In a nutshell, we are allowed up to 4 hours of administrative leave for blood platelet donation through a Hemapheresis Program. It is unfortunately based on operational need, but since it must be approved in advance, your management team should be willing to work with you thereby reducing denials based on operational need.
-OGJ
WELCOMING OUR NEWEST REPRESENTATIVE - MONICA MENDOZA
Please welcome Monica Mendoza as 3184s newest representative.
She will be taking the lead in the Pasadena, TX office where she has already worked to get an additional eight (8) employees moved to an earlier shift. What an awesome WIN for the office and the union.
We are happy to have you and your skills on our team. #3184Strong
Local 3184 Education - Ana Rivers
Local 3184 Education
As work at home by quarantine ends and employees return to the office. Local 3184 will continue to inform and educate its members via modern technology. If anything, the pandemic has made Local 3184 a stronger Union than ever before.
As we struggled to maintain communication with our members at the beginning of the pandemic, Local 3184 realized it was vital to adapt and move forward with the virtual technological world. How did we accomplish this you ask?
Well, Local 3184 FB page started off with a mere 200+ members and within days from being quarantined our FB page grew with new members joining and becoming the haven for information, education, training, and a place for bargaining unit employees (BUEs) to have a voice.
Your Union will continue to conduct zoom trainings and live meetings for the foreseeable future. Members who are not able to attend may also access prior trainings via our website 3184.org.
We appreciate and value everyone’s input let us know what trainings you would like your Local to conduct.
Representative Corner - LeNard Dorsey DO 855
- What’s your Location - Houston Northwest Office (DO 855)
- Job Description - T16 PE Technical Expert. I am transplant that experienced a troubled hardship transfer from PC-7 in Baltimore Maryland.
- How long have you been with the UNION : I technically grew up in the union as my father was the Vice President for his union (Local 1429) in Baltimore Maryland, but I joined the great 3184 a few years ago. It was something that felt right and with the current leadership it drew me in to get involved for the betterment of our members (current and future). Looking back at my Hardship Transfer, when I was not a union member during that time, I could only imagine how much smoother and faster it would have been if I were a member then. Also, doing that process on my own was extremely stressful, but as they say 'hindsight is 20/20'.
- How did you get involved to serve as Rep : I got involved to serve but filling a need of our Union President Joel Smith and running with it. When you have a mindset to serve you can find places to help. It doesn't have to be much, just your portion. Not everyone needs to be a representative nor a person of leadership within the union, but you can be a voice of truth with co-workers.
- Why would you encourage other to join our great union? I would encourage non-members to join because its FOR YOU! Its created and supported FOR YOU in mind. The union is not only available when you have an issue or problem. Its here to maintain the standard of what is right and not what's made up in the minds of management or "how it has always been". The union is always fighting on YOUR behalf even when you dont about it. (check out the Spotify Link Above on what the union is doing as well as our YouTube channel that's steadily growing)
