FLRA’S CONFLICTING BACK PAY CRITERIA
Assume that the head of a large federal employee office somewhere in the Midwest suddenly decided to change employee shift hours. Instead of everyone’s shift being 8 to 5:30 every day, she announced that on Monday and Friday of each week their shift would be 7 to 4:30. When the union gets ahold of that information the wheels will start turning identifying how it can challenge that decision and the remedy it wants. If the change was made unilaterally, it is a ULP. But if the change also violates a federal regulation or contract provisions it is a grievance unrelated to a ULP. What too many practitioners do not realize is that the decision to file a ULP or grievance has a very big impact on whether the employees will get back pay—thanks to a rarely talked about clash of FLRA precedents.
If the union files a grievance alleging contract or regulatory violations and wins, the Authority has held that the arbitrator must grant back pay to harmed employees if the requirements of that act are met, e.g., an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of pay. (See NTEU and DHS, CBP, Scobey, MT, 67 FLRA 247 (2014) where the Authority overturned an arbitrator’s order that the harmed employees only be given the next overtime assignment rather than back pay for the one they were improperly denied. )
On the other hand, if the union pursues a ULP, whether before FLRA or an arbitrator, back pay is not as automatic. In a unilateral change situation involving the exercise of a management right—as a shift change is, the FLRA employs a different approach than 67 FLRA 247. It insists that the neutral apply what is commonly called the FCI criteria to determine whether a status quo and back pay order are warranted.
For example, when an agency unilaterally terminated about a dozen temporary employees the Authority said,
In order to justify a return to the status quo ante to remedy a failure to bargain over the impact and implementation of a change in conditions of employment, the Authority will, on a case-by-case basis, “carefully balanc[e] the nature and circumstances of the particular violation against the degree of disruption in government operations that would be caused by such a remedy.” Federal Correctional Institution, 8 FLRA 604, 606 (1982) (FCI). Under the criteria set forth in FCI, the Authority considers, among other things, (1) whether, and when, notice was given to the union by the agency; (2) whether, and when, the union requested bargaining; (3) the willfulness of the activity’s conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency’s operations.
Once the Authority applied the FCI criteria it decided not to grant back pay to all harmed employees for a very interesting reason, i.e.,
In this case, Respondent Oklahoma City CO had the right not to renew the appointments of the 13 LG employees, conditioned only on its obligation to bargain with the Union over the impact and implementation of those actions. Moreover, the parties stipulated that the Respondent failed to renew those appointments because of a decrease in the work of specific sections and departments of the Oklahoma City CO and based on projections for the subsequent 12 months. Therefore, it is clear that 13 of the LG appointments in the Oklahoma City CO would not have been renewed in April and May of 1991, and that, because of the nature of those appointments, the failure to renew could not have been challenged.
In other words, if the agency can show that it would not (or could not) have done something if time was rolled back to the status quo ante the Authority has recognized that as grounds for denying back pay. Imagine the manager of the large Midwest office in our example owed millions in back pay by the time the union got the case closed, e.g. two hours a day of overtime on Monday and Friday to compensate for the extra hours the employees would have worked if the work had been performed on overtime. Under the Authority’s ULP back pay criteria, the manager can still avoid an automatic back pay order if she can prove paying out that money would be disruptive to accomplishing the agency’s mission going forward and/or that assigning the employees to work between 7 and 8 in the morning is not something she would have or could have done. For example, perhaps she can show she did not have the budget to pay the overtime costs of working everyone the two early hours a week.
Oddly, no one seems to have made an issue of this contrast of back pay criteria. It is certainly within the bounds of reason that the two contrasting criteria can exist alongside one another given that they flow from two different statutes. But it is just as reasonable to question why the same infraction can result in an agency having fewer rights to defend itself depending on which theory the union chooses to pursue.
Union reps should think about this difference the next time they face a violation that can be addressed as a ULP or grievance. Although a ULP costs the union nothing to pursue, it can end up costing the members a great deal if the agency wiggles out of a full back pay remedy using the FCI or other criteria.