WHAT IS THE ANSWER TO THIS OVERTIME PROBLEM?
Practitioners on both side of the table come up against the following facts. The agency wants to keep overtime costs down. So, it decides to have its first line supervisors start doing what is universally recognized as bargaining unit work during the normal eight hour day and then give the supervisors comp time after the eight hour day to do the supervisory work they did not get done. For example, assume the scheme works and the agency cuts out all bargaining unit overtime, which had amounted to about 100 hours a month for the last year. Does the union have a way to stop this and get paid for the overtime the supervisors took? Does the agency have any liability?
The short answer to both is “Yup!” Or at least there is a very good chance there is a violation here. Assuming the union had the standard clause in its contract requiring the agency to assign overtime equitably among unit employees, it could allege that the agency is violating the equitable distribution obligation. But that seems like a stretch because frankly in the strictest sense there was no overtime here to distribute. Management will surely argue that and our guess is that most arbitrators will not agree that the hours the supervisors spent doing unit work was actually overtime. Management will also trumpet its right to assign work to scare an arbitrator away from finding a violation. At a minimum, it is a very uphill argument to make.
But there is another option that has a very good chance of succeeding. If the agency has not assigned supervisors to do unit work like this in the past, the union could file a ULP claiming that the agency made a unilateral change without notice and an opportunity to bargain. The union would ask for back pay equal to the number of hours the supervisors did unit work, plus interest and attorney fees. It would also ask for a cease and desist order until notice of the change is served and bargaining completed. In our experience whether you are on the labor or management side of the table, it takes some time to get in the habit of not just assessing a situation against the contract obligations, but to also look at it as a change. Many, many grievances are filed because the agency did something the union and employees did not think they could do—or to put it differently management changed what it was doing before the grieved action.
There is a third option as well. This could be waste, fraud and abuse by the agency leadership, especially if the union can show that giving the supervisors comp time is more expensive than paying unit employees overtime. The facts also might support the conclusion that the agency has too many supervisors if it can afford to assign them unit work and should reduce the number of supervisors by making a few of them unit employees again. Whether it is the Office of Special Counsel, the agency IG, or some Congressional rep, it is not hard to find someone in Washington to show an interest when waste is provable.
So, agency LR specialists need to make their agency leaders aware of the liabilities if they do this to cut down on unit overtime, and union reps need to think of all the rights they have outside the contract in law and regulation to pursue this with the best chance of success.