AAGGGHHHH! WHY DO UNION REPS MAKE THIS MISTAKE?
A while ago we posted an article entitled, “How to Lose Millions For Members.” It explained that from all appearances the union had missed the opportunity to stop management from taking away money employees were due in awards. Well, it has happened again, which suggests that we should hit this topic again. When the Dept. of Energy reduced the amount of money it usually puts into employee performance awards, the union filed a grievance alleging that the agency’s action violated the negotiated contract provisions describing the award system. There is nothing wrong with that grievance; it just was not as complete as it should have been. When the union believes management has violated the contract by making a certain change, it should ALWAYS, ALWAYS, ALWAYS also allege that it also committed a ULP. Why? Because it gives the union a second bite at the apple.
For example, in this case the record is pretty clear that even though the agency made a change, the arbitrator decided that did not violate the negotiated rules. Case closed. However, the union also could have alleged in the grievance that even if the management action does not violate the agreement it was a unilateral change without notice to and bargaining with the union. If it had, it is likely that this arbitrator would have had to find there was an unfair labor practice based solely on the change. If he didn’t, the union could have asked the FLRA to overrule him. Compare AFGE, 67 FLRA 291 (2014), where the union did not do this, to AFGE, 67 FLRA 287 (2014) where the union did. Both cases involved management changing the award practices, in both cases the unions alleged violations of the contract award article, in both cases the arbitrators rejected that claim,but in only one of them did the union also allege a change was unilateral and illegal. That union won and the other lost.
The Authority has held that when award systems are unilaterally changed in violation of law the union can ask the arbitrator to order the agency to reinstate the old practice and distribute back pay to every who was denied an award or got less money than they should have. Check out NTEU 63 FLRA 505, NTEU 63 FLRA 432, and AFGE, 22 FLRA 612.
(Remember, do not rely on us for legal advice because that is not what we are offering. Consider it grievance tactical advice and check with a lawyer if you have doubts about what to do.)