TEST YOURSELF- The Missing Grievance Allegation?

Let’s suppose that an irate member contacted her union rep on a Friday complaining that a month ago her manager had approved her taking one week of annual leave next week, but suddenly the leave that was to start next Monday was canceled.  She asked the union to do what it could. (Read on to see if you can figure out whether the union made one or more mistakes before we provide the answer at the end of this posting.) When the union looked into her complaint, it found additional details. She worked in a group of seven employees who did the same work.  The contract (Art. 12, Sec. 3) required that authorized managers either approve or disapprove annual leave requests of a week or more in length at least five work days in advance.  As far as the union rep could tell this employee’s supervisor issued his approval or disapproval decisions timely for years, and he union rep obtained a copy of the supervisor’s e-mail approving her leave eight days in advance.

The union also learned that there was a practice in the group of distributing 40 hours of overtime to those employees not on leave when two or more employees are on leave the same week. Apparently, the work had deadlines and they agency had no choice but to keep up with them by scheduling enough staff hours.  There would have been two employees on leave during the week management disapproved leave for the union member.  It did allow the other leave applicant to go on her week-long annual leave. Finally, the union rep witnessed the employee’s supervisor apologize to the employee and explain that the agency had moved the authority to approve leave of more than three days to the next higher level manager only two days before he gave his approval, but word had not reached him at the time.

As a result of the investigation, the union filed a grievance alleging a “violation of Art. 12, Sec. 3” and asked only that management “compensate the employee for having lost the cost of an airfare she purchased the day her leave was approved to vacation in another state.”

Management’s grievance response was that the first line supervisors lost the ability to approve leave two days before the grievant’s supervisor issued his approval.  The authority was moved to the second line managers because the agency needed to reduce overtime costs.  Unfortunately, no one ever told the supervisor until days later that he no longer had authority.  Management offered to give the employee a formal apology to settle the grievance. The union rejected that offer and appealed.

When the union got to arbitration, it lost.  The arbitrator held that the contract clearly required an authorized manager to approve the leave and that the supervisor was not authorized at the time he approved the request. The arbitrator said it was irrelevant that neither the supervisor nor employee were aware that the supervisor no longer had authority because nothing in the contract required that management vest approval authority in first line supervisors.  The agency was free to give it to any manager it wished. Moreover, the arbitrator stated the grievance was likely non-arbitrable because the requested remedy was an illegal demand.

NOW FOR THE QUESTION:  What was wrong with how the union wrote the grievance?  Had it not made these mistakes it could have avoided losing on the grounds it did and won a large back pay award.

It has been a while since FEDSMILL.com has posted anything about how to draft a grievance. If you are a new reader you might want to download these posts:

Grievance Drafting Tips 1,2 & 3

Grievance Drafting Tips 4,5,& 6

As for this particular case, the union made a mistake when it did not also allege in the grievance that the agency had committed an unfair labor practice by changing the policy of who had authority approve leave.  The agency unilaterally implemented that change without notifying the union in advance and bargaining to completion.   It is most unlikely that the agency could ever have shown that there was an emergency, which permits implementation without notice, or even that the changed was necessary for the agency to continue functioning, which permits it to implement before reaching impasse.

Had the union made that ULP allegation, the arbitrator would have been forced, absent proof of a serious disruption, to reverse management’s change in delegated authority, order it to restore the status quo, and to have found that the supervisor did have the authority at the time to approve the leave.  Just as importantly, a unilateral implementation of a change is a violation of the union’s institutional rights.   When institutional rights are violated the union can ask for a remedy that covers losses not just by the grievant, but everyone in the unit who was harmed by the policy change.

This error of omitting a ULP allegation from a grievance happens more often than you might think. If you find during your grievance investigation management explaining its actions by referring to a change it made–short-term or permanent–due to budget shortages or any other factor, include a  unilateral change allegation in your grievance.  That is a violation of this provision of law: 5 USC 7116(a)(1) and (5).  Ironically, in this case even if the arbitrator held that the contract provision did not apply for some other reason, the union still would have had a solid ULP because the “practice” had been changed illegally by management.

The second problem with the grievance was the remedy requested.  As we have advised often, no matter what specific remedy the union requests, ALWAYS also include phrase such as “. . . and any other remedy deemed appropriate.”  That clause gives the arbitrator the power to impose a different remedy if he/she finds that the specific one you requested was illegal or inadequate.

The arbitrator was right about the requested remedy being illegal.  FLRA and the courts have found that arbitrators do not have the power to order agencies to compensate employees for costs they incurred outside of their official functions. This was spelled out in ACT, 62 FLRA 144 when the Authority ruled that remedies that constitute nothing more than “money damages” (a sum of money given as compensation and as a substitute for a suffered loss) such as the personal losses of employees for “hotel reservations, airline tickets, etc.” as a result of the Agency’s cancellation of approved leave, are not permitted under the labor relations statute.

 

The better remedy here for the individual grievant would have been to ask that the arbitrator order the agency to consider the employee for a Special Act award and to explain why the employee should not receive such an award for having sacrificed her personal conveniences to work during that week.  Special Act awards can be given for service in the public interest in connection with or related to official employment. (See 5 CFR 451.104)  FLRA has not yet ruled that approach illegal.

Another possible remedy would be to have asked that the employee be paid at a rate of time and one-half for the week she worked because “but for” management’s error, the hours the employee worked would have been compensated at the overtime rate.  That would likely cover the losses she incurred.

The union could have also asked that if the arbitrator would not award retroactive overtime pay to the grievant that he/she order the 40 OT hours be distributed among the remaining five members of the group would have worked 40 hours of overtime—plus the grievant. The union had a good argument that those five should also receive back pay at a time-and-a-half rate for 40 hours. (Once leave is restored or back pay ordered the union can also apply for attorney fees if an attorney worked the case.  That could cost management far more than even the forty hours of overtime pay, and be a very expensive labor law lessen it is unlikely to forget soon.)

Finally, the union could have also asked that the arbitrator grant a similar remedy for anyone harmed as a result of the policy change, whether they were in the grievant’s work group or not.   A ULP allegation enables it to ask for remedies for everyone in the unit.

 

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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