PIZZELLA AGHAST OVER 76 YEAR OLD PRECEDENT
An ALJ found an agency discriminated against an employee when it denied her request to telework from home while she recovered from a broken ankle. When the judge failed to require the agency to restore any leave the employee took to cover the two days a week she was to come to the office, FLRA overruled him. It gave the employee to right to submit leave restoration claims during the compliance stage. The case is significant because it reinforces the Authority’s message that if an agency breaks the law there will be a tangible (preferably back pay) penalty, not just posted paper, unless barred by law.
No one should be surprised. FLRA did the same thing late last year overturning an arbitrator who found an agency committed a ULP by denying overtime, but then only ordered the harmed employees to get the next OT assignment—not back pay. (See NTEU, 66 FLRA 1024 (2012) and 67 FLRA 247 (2014)) The FLRA ordered back pay saying, “when the Authority determines that an arbitrator’s findings support an award of back pay under the BPA, then Authority precedent supports finding that the arbitrator was required to award backpay.”
In this latest case the Authority traced the precedent for tangible remedies back to a 1938 Supreme Court case under the National Labor Relations Act which led to the oft-cited words by the FLRA and NLRB, “…the purpose of ULP remedies is to restore, ‘as far as possible, the status quo that would have obtained’ if the violation had not been committed.” FLRA could also have mentioned another well-used precedent that deterrence of future ULP violations is “certainly a desirable effect of a remedy.”(See AFGE, 67 FLRA 221 (2014)).
But Member Pizzella was not about to let 76 years of labor law precedent stand in the way of his personal feelings and maybe even a prejudice or two. In his dissent he referred to the grievant not as an employee, but as “Union President” and highlighted that she “spends 100% of her work time performing Union duties on ‘official time.’” Neither is relevant to whether the remedy is legal, but presumably he chose his words to cast the grievant in an unfavorable light. He continued his journey through the irrelevant facts of the case noting that the Union President wanted to telework five days every week until she could walk again. The italic highlighting was his, not ours, and also likely intended to suggest some unreasonableness or even greed by the Union President. (Member Pizzella seems oblivious to the fact that thousands of feds spend five days a week on telework without visiting their office for months. That is perfectly legit under OPM regulations and law—even encouraged.)
Having focused only on irrelevant facts, which never lead to a logical conclusion, he had little choice at the end of his dissent but to spin off in another direction and condemn his colleagues for pronouncing that a “make-whole remedy is appropriate in all circumstances.” That would have been a super criticism to level except for the fact that they never said that. Their precise words were, “a make-whole remedy is appropriate under the circumstances of this case.” Big difference. HUGE in fact, and likely a tad dishonest.
Pizzella called this case embarrassing. We agree, but it was not the union president or the FLRA majority who were embarrassing. America was built by dissent and it remains vital to our society. But to be effective rather than bloviators, dissenters must present tight, logical, and honest analyses. No name-calling or contemptuous characterizations, no matter how successfully they worked for some of history’s most contemptible characters—in the short run.