FLRA BOOSTS TELEWORK REMEDIES
Few things are as frustrating as winning a grievance, arbitration or ULP only to find that the sole remedy imposed is an order that management not violate the law or contract again. FLRA claims that remedies should “restore, so far as possible, the status quo that would have obtained but for the wrongful act,” and that they should be chosen in part as a “deterrence of future violative conduct.” Even the courts have talked tough about remedies, “An approach to remedies that systematically fails to deter non-compliance, or dilatory compliance, with the Statute’s directives is fundamentally at odds with the Authority’s responsibilities. . .”
(With minor editing this is a republication of an article that first appeared in 2011.) Flexiplace or telework denials are good examples of where managers can violate law or contract and at least hope to get away without any financial penalty because the employee does not lose salary and there is no back pay claim. But, thanks to an AFGE litigation coup, FLRA has ruled that when employee is improperly denied telework an arbitrator can order the agency to pay the employee’s travel expenses flowing from having to come to work on days when she should have been allowed to work at home or other nearby location. So, if an employee is denied one day of telework a week for a year and must travel 20 miles to the office and 20 miles home on those 52 days, the employee would receive a check from management for $1060.8 at current mileage reimbursement rates.
Of course, that can be just the tip of the iceberg if the union used an attorney to present the case in arbitration. The attorney could also ask for attorney fees, which for a one day grievance hearing with post-hearing briefs in the Washington, DC area could easily exceed $40,000.00. That should make the agency think twice in the future about just taking away an employee’s telework without a strong case for doing so.
This is an important case for dealing with telework violations, but it also emphasizes the value of including the phrase, “and any other appropriate remedy” when drafting the grievance. When the union files a grievance like this it is often in response to a manager’s announcement that he is terminating an employee’s flexiplace right. Because the financial damage is not yet obvious, the union might merely ask management to “cease and desist” from violating the contract. That would be a major error. By adding a request for any remedy that is appropriate, the union gives the arbitrator the power to look at things like the travel expenses that followed the manager’s decision and even the reinstatement of leave. Including that phrase also raises management’s potential liability if it refuses to settle. So, as this case shows, never fail to include the phrase “and any other appropriate remedy” when listing corrective actions you want.
(This case compliments another one where the Authority recognized an arbitrator’s power to order the agency to replace any annual or sick leave an employee incurred that would not have been used had she been allowed to work flexiplace. That also is a remedy that can generate settlement motivation, attorney fees, and in the right situation, back pay.)