AGENCY OBLITERATES UNION BACK PAY AWARD- UNIONS BEWARE
Even if you heavily favor unions over management you have to admit that “Congrats” are in order for the Federal Bureau of Prisons based on 64 FLRA 775. One of the most aggressive and talented unions in the country, AFGE’s Council of Prison Locals, filed a grievance against the Bureau claiming that overtime had been improperly assigned over the course of a year and asked for full back pay. An arbitrator found that the agency violated the contract, but could not determine the specific employees entitled to a piece of a very big back pay pot or how much each was owed. So, he told the agency to calculate the value of all the overtime improperly assigned and to divide that money equally among everyone who was even eligible for working the overtime. AND THAT IS WHERE THE BUREAU OF PRISONS KNEW THAT IT HAD CAUGHT THE ARBITRATOR, AND UNION THAT SUPPORTED THAT REMEDY, IN A VERY BIG BLUNDER.
The Bureau’s LR team knew that a basic requirement of the Back Pay Act (BPA) is that any arbitration award (or even voluntary grievance settlement) must identify “which grievants would’ve received the overtime assignment if the agency hadn’t violated the agreement….” Because the arbitrator’s decision failed to link each violation to the particular employee harmed by that violation, the FLRA ruled “…his award of back pay to all the grievants violated the act.” That’s right. It is actually illegal for an arbitrator or anyone else to simply sprinkle back pay around a bargaining unit without making sure that the employees who got harmed the most get their due share. Moreover, under 5 CFR 550.111 there must be actual evidence that all of the employees who were awarded back pay were willing and able to work the overtime assignments at issue.
Although this BPA criterion is not raised very often, this is not a new requirement. The Authority pointed out that it issued a decision back in 1990 spelling out the rule so that both parties knew what was required to make a grievance remedy legal.
So, “Congrats” to the Agency for insisting that the right employees get paid the right amount of money—even if it’s real motivation was to cut the ultimate amount it owed because all the employees could not be identified. It also gets an “Atta’ Boy” from us for avoiding the heart ache of potentially having to collect the back pay from employees (and retirees) if it had paid out before the illegality was found. If the agency itself or perhaps a reviewing agency like DOJ or GAO later identified the payment as illegal the Bureau would have had to ask each employee to scrape up the cash to pay it back. Going through debt collection procedures is horrible for the agency as well as employees. It is always better to do the hard work upfront to get it right the first time.