WE DO NOT ADVISE DOING THIS, BUT …

Most union reps know that when a manager orders an employee to do something the employee had better do it no matter how wrong the order is.  There is a collective bargaining principal called, “Work now, grieve later.” That strongly suggests most arbitrators will punish an employee for not complying when s/he could have filed a grievance and gotten the situation corrected and/or remedied. Even though there are some recognized exceptions to that principal, such as a risk of imminent physical harm to someone, employees take a risk when they count on them.  Nonetheless, it happens and if you are representing an employee who did this (or you are the HR specialist advising the manager what to do) there is an old FLRA case where it upheld the employee’s right to refuse to perform uncompensated work that you should read over.  Here is how FLRA largely told the story quoting frequently from the arbitration decision.

The grievant was a plant protection and quarantine (PPQ) officer whose duties were to perform inspections on aircraft, cargo, and luggage. He split his duty time between the Federal Office Building in Seattle and the airport. Whenever an insect (“intercept”) was discovered in a shipment, it was transported in a vial filled with alcohol to the Seattle office for identification. Transporting vials was a standard duty assigned during regular hours. If an intercept was discovered close to quitting time, “it was customary to ask an officer coming out of the airport from downtown to take the transport home overnight and bring it to the [Seattle office] in the morning.”

One day the grievant, who was working an 8 a.m. to 4:30 p.m. shift at the Seattle office, was also scheduled to work an overtime assignment at the airport at 6:00 p.m. For his work at the airport, the grievant received overtime pay, as well as commuted travel time (CTT) pay, which covered the time spent travelling from the Seattle office to the airport, and from the airport to home. At the end of the shift, the grievant declined to transport an intercept home overnight and to the Seattle office in the morning, “because he was being asked to do so on his own time without compensation.”  He was given a 5-day suspension for insubordination.

The grievant grieved his suspension, arguing that he was not required to obey an order to perform unpaid work on his own time. The Arbitrator found that the Agency’s order to transport and safeguard the intercept was improper. He reasoned that the Agency’s right to assign work under Article IV, Section 1 of the parties’ collective bargaining agreement, which incorporates section 7106(a)(2)(B) of the Statute, was “conditioned by a statutory proviso that those rights be exercised ‘in accordance with applicable law.'” The Arbitrator decided that the Agency did not have “the authority to demand uncompensated work of an Agency employee.” Further, he concluded that the Agency’s own policy and practice was to “request, but not require the transport of intercepts by off-duty PPQ officers.” The Arbitrator concluded that “[t]he Agency ha[d] not established any authority for requiring the Grievant to perform government work on his own time or any emergency conditions that would have justified the order given.” In addition, the Arbitrator rejected the Agency’s argument that transporting the vial was work incidental to the grievant’s CTT pay, because the grievant was not in CTT status during the time he was at home or during his commute to work the next morning.

Next, the Arbitrator held that the “work now, grieve later” principle did not apply because the Agency had “no inherent authority to control what an employee does on his/her uncompensated, off-duty time[, or] . . . to require work while declaring it will not be compensated.” The Arbitrator held that the facts of the case did not support a finding that management’s statutory right to assign work extended to “an assignment while off[-]duty in a non-pay, non-standby, non-traveling status.” Id. Because it had been the Agency’s policy and practice to treat off-duty transport of intercepts as voluntary and not mandatory, the Arbitrator concluded that “the Grievant’s refusal to comply with the instructions he received was not by itself a basis for discipline.” Consequently, the Arbitrator found that the grievant’s suspension was “an unjustified and unwarranted personnel action[,]” and ordered the Agency to award the grievant backpay, without interest, for the 5-day suspension.

When the agency filed exceptions, FLRA dismissed them noting that Arbitrators have recognized several exceptions to the duty to obey orders, e.g., “Some arbitrators have recognized other possible exceptions to the duty to obey orders . . . as where the order ‘is QUITE CLEARLY AND INDISPUTABLY beyond the authority of’ the company.”  The Arbitrator in this case found that the Agency’s established practice and policy was to request transports of intercepts only on a voluntary basis and that the order given to the grievant was contrary to this policy.

He also pointed out that the supervisor lacked any authority to control what the Grievant did on his own personal, off-duty time, and that there was no “rational basis for the order[,]” which was contrary to and “not based on any established Agency policy or practice.” In the end the FLRA found arbitrators could enforce exceptions to the “work now, grieve later” principal without violating management’s rights to assign work or schedule travel outside duty hours.

Check out PPQ, MD, 38 FLRA 1291 (1991)

 

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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