“HELLO, MCFLY, ANYONE HOME? THINK, MCFLY, THINK!”
Biff said it best on behalf of all those whose words are too often ignored when he uttered this line in “Back to the Future.” It was only last April when we explained the need for unions to think more creatively about remedies for ULPs and grievances with the posting entitled, “Aggghhhhhh! This Mistake Hurts!” That was about the fifth time in the six years we have been posting. Yet, there is a decision coming out the full FLRA soon where once again the union (and FLRA’s General Counsel’s (GC) staff) failed to pursue all the remedies available to them.
We are not going to identify the union or the case number in order to save everyone some embarrassment, but here are the facts. Back in November 2016 the union asked to bargain a compressed work schedule for a handful of employees in the unit. When the agency refused, the union filed a ULP charge, FLRA filed a complaint, and an ALJ was appointed who promptly found that the agency violated the law. His remedy, which appears to be all the FLRA asked for, was to impose a cease and desist order and plaster a posting around the office. Have you spotted the FLRA GC’s mistake yet? Hint, it could and should have asked for more, particularly something that would make the agency think twice in the future about refusing to bargain.
A status quo ante order is not appropriate under these facts because the agency had not made a change. This is a refusal to bargain over a union proposal case. But, FLRA has held repeatedly that a union can ask for a “retroactive bargaining order” (RBO). If the union or FLRA GC had convinced the ALJ to impose one here the union could have gone to the bargaining table not only demanding the compressed work schedule it wants but also that it be retroactive to November 2016. That does two very big things for the union. First, if the agency ultimately agrees to or is ordered to implement a 5/4/9 schedule for the involved employees, the union can then demand that any employee who can show s/he would have asked for a 5/4/9 last November get back pay for the 10th day of the pay period. They would have had that day off if the agency bargained promptly. At this point in time that would be about 20 days of back pay for each employee. That is the kind of thing that makes agency CEOs ask, “Who in management is responsible for this screw-up?” And that is ultimately good for the union. (Also remember that whenever the union gets members back pay it can also ask for attorney fees.)
Second, the right to make an agreement retroactive would give the union a very big bargaining chip in negotiations even if it did not need full retroactivity. Or, it might get a better CWS schedule by dropping retroactive effect or get a few more people on CWS than it otherwise would.
Perhaps the best advice we can give unions and the FLRA GC shop is that whenever they file a grievance or ULP and only demand a cease and desist order, a prospective bargaining order and a posting order, they should stop. Then force themselves to think more aggressively as to how they might be able to argue for something more tangible, especially anything involving back pay.
Another FEDSMILL posting dealing with this issue that you might want to review is “Details: What About All Those Left Behind.”