BARGAINING FOR BACK PAY
Generally, there is only one way to get back pay. You have to file a grievance, charge or some other allegation against management and, absent settlement, get an authorized neutral, such as an arbitrator, to order back pay. But there is another way. The union can make a bargaining demand for back pay and negotiate to get it. Here is how that would work.
Assume that management violates some employees’ rights in a personnel action with the result that but for that violation the employees would have received more money. Maybe they would have been assigned more overtime work, greater travel reimbursements, a large incentive award, etc. Also assume that for whatever reason the union did not file a grievance to get the employees the money they were unjustly denied. Perhaps they did not file because they missed a grievance deadline, did not have the evidence they needed when the filing deadline was reached, did not have the money to pay for an arbitration, wrongly evaluated the case, etc.
FLRA case law gives the union the right the next time it goes to a bargaining table to make a proposal that those harmed employees now be given back pay pursuant to a negotiated agreement. IN NAGE, 38 FLRA 928 (1990) the union made this proposal, “Proposal V: The Employer will make whole any bargaining unit employee who otherwise would have been entitled to receive overtime premium pay, but did not as a result of the Employer’s decision to unilaterally change its overtime practices.” The Authority held it was negotiable after pointing out that the agency head has just as much authority to award back pay when the criteria of the Act are met as an arbitrator or judge. “An ‘appropriate authority,’ within the meaning of the Back Pay Act, includes, among others, a court, the Authority, an arbitrator, and the head of an agency or another agency official to whom such authority has been delegated. 5 C.F.R. 550.803.” The union negotiators would merely be asking that official, or his/her representative at the bargaining table, to make that determination as to some personnel action that occurred in the past.
Of course, the proposal would have to relate to the scope of the issue on the bargaining table. If the agency was proposing a mid-term change about sign-in/sign-out procedures, it likely would not be appropriate to make a back pay demand in connection with an overtime case. But nothing stops the union from waiting until term negotiations arise to make the back pay demand.