THE CASE OF THE SIAMESE TWINS

What else would you call a situation where a union files two grievances covering the same employees for the same time period alleging violations of the same general areas of the contract, law and regulation—with the only difference being the remedies? Those cases are conjoined in every way but one, and if those remedies conflict with one another, even partially, then there is little choice but to separate them. Tragically, that often results in losing one of the cases.  For example,

suppose a union filed a grievance alleging that an agency had violated the newly negotiated contract’s seniority rules when it approved employee requests for their preferred day off under a 4/10 CWS agreement. The requested remedy was that employee day off requests be reconsidered, the correct approach used, and anyone who had to work on a day–when they would have had it off if their CWS preference was properly honored–be given overtime for working that day. If Mary Jones and Tim Smith requested every Friday off, but were only given Tuesdays off, the union would be arguing that “but for” management’s violation of the contract Mary and Tim would not have worked on those Friday’s. Consequently, because they would have already worked 40 hours for the week by the time Friday came around they are entitled to time-and-a half pay for ten hours of work.

Now suppose that the union filed another grievance covering the same employees, period of time and CWS day-off issue. (Often this is done to create a back-up claim in case the first one fails.) But in this second case the union alleged that when the agency implemented the method it did for approving 4/10 days off it failed to give the union specific advance notice of what it was going to do and complete bargaining before implementing. In this case the union requested that the agency return to the status quo ante before the changes were made.  That would have meant that Mary Jones would have continued to have Tuesdays as her 4/10 day off—just as she did under the previous contract formula. Assume Tim Smith, however, would have had Wednesday off under a status quo ante order.

Finally, suppose that the union won both grievances at arbitration two months apart and that FLRA upheld both decisions two months apart.

Here is the problem that suggests the Siamese twin comparison. If the agency applies the remedies to Mary Smith, pursuant to the first case she would get thousands, maybe tens of thousands, of overtime pay. But once the remedy in the second case is applied she loses all of that. Tim Smith, on the other hand, would be entitled to a back pay jackpot under the first grievance for having worked Fridays due solely to the agency’s error and even more back pay for having worked Tuesdays rather than Wednesdays under the second grievance.

In an ideal world the union would demand payment consistent with the first grievance and separately payment under the second grievance as if the first grievance’s remedy never existed. Mary would get her thousands and Tim would likely get twice as many thousands.

However, in the real world, the agency is going to do whatever it can to avoid that because so much money is at stake. If you are thinking that it is out of options because FLRA rejected any exceptions it filed to the individual cases, think again. The agency can always refuse to comply with the arbitration orders and force the union to ask the FLRA General Counsel to file a ULP to get any money. After all, the Authority will find an award deficient when it is incomplete, ambiguous, or contradictory so as to make implementation of the award impossible, e.g., NAGE, 46 FLRA 451, 454 (1992). In this case, the agency would likely ask the Authority for de novo review because in combination the two decisions present a different set of facts than the original individual cases did.

Given how quickly cases move through FLRA and the courts that could delay resolution several more years. Moreover, a ULP would open the door to the possibility that the General Counsel, the Authority or even some court might be sympathetic to management’s plight and find a reason to either void one or both arbitration decisions. Or they could remand everything back to the two parties to start the dispute over again under a single arbitrator. (Given the FLRA’s respect for the opinion of the Comptroller General, the agency might even ask for its opinion as to whether it can even pay one or both back pay awards in the hopes that the CG bars some or all payments. See AFGE, 68 FLRA 1074.)

When the union looked beyond its ideal payout formulas and deep into the eyes of reality, it would conclude it has only very unpleasant options. First, it can ride out the additional litigation for years hoping for a total win.  But by then some grievants might be too frustrated with the union or too dead to enjoy the win. Or, even worse, the potential back pay tab might have become so great that some enterprising Congressional Rep looking to profit by stomping on some union, might push a bill through barring any agency use of appropriated funds for this purpose.  If these employees were GS-11s and it took three years or 156 weeks to resolve this case each grievant would be entitled to about $50,000.  In an agency of 1,000 employees that is $50 million—a substantial sum in the era of sequestration.

Second, the union could drop one of the cases removing any conflict for payment under the other case. Third, it could offer to settle for dimes on the dollar owed to Mary, Tim, and everyone else, e.g. maybe $5,000 rather than $50,000 a head.  But both the second and third options would likely trigger waves of Duty of Fair Representation ULP allegations from employees as well as piles of membership terminations.

We have gone through all this not just because of the stakes, which are high for both parties, but also to alert unions to the potential complications of not coordinating the filing of grievances. We understand that when management blatantly violates a contract there is a desire to lash out with a burst of litigation. But that one moment of joy can produce a great deal of heartache down the road if not thought through.