TEST YOURSELF: Is There a Violation Here?
Read over the facts below and identify what, if anything, the union can do to help. The answer is provided below the facts.
FACTS: Assume that an employee’s administrative workweek starts in the wee hours of Sunday morning and goes through to midnight the following Saturday. Let’s call her Keisha Krull. During the last year, she has always had a tour of duty running from Tuesday through Saturday starting at 8 a.m. and ending at 4: 30 p.m. Those were her regularly scheduled 40 hours. However, due to extremely tight budgets, the agency’s regional manager has decided to adjust the schedules of the people in Keisha’s work unit so as to avoid the need to pay any overtime. He moved staff from the slow periods of the week to the busier periods. Keisha’s new tour was Monday, Wednesday, Thursday, Friday and Saturday. Her hours on Monday were from 8 a.m. to 4:30 p.m. but the rest of the week she was to work from 10 a.m. to 6:30 p.m.
LR informed you, the union leader of the change, just three workdays before the beginning of the new administrative work week that it was making the change and that it considered it to be “covered-by” the current agreement’s provision stating, “The Agency will notify the union no less than 48 hours before it wishes to implement a shift change and take any union objections into account.” Consequently, the agency saw no need to negotiate over the impact.
QUESTION: What, if any, violations have been committed here and what is the appropriate remedy.
ANSWER: There are at least two statutory violations. The first and more obvious is a potential ULP of refusing to negotiate. Unless the union agrees that the matter is covered-by its agreement and no longer negotiable, it should charge management with violating 5 USC 7116(a)(1) and (5). Check out FEDSMILL’s posting entitled, “Dubester Criticizes Covered-by Defense” and “Octomon and the Covered-by Bargaining Defense” for an explanation of how risky it is for management to ever assert the defense and how to attack it when management does.
In this case, the union should have immediately objected to any refusal to bargain, probably via e-mail to make a record, and asked the agency to postpone the change until bargaining was completed. Generally, it is not required to do so when management outright refuses to bargain, but it avoids potential disputes later.
But there is another violation of law here. Title 5 U.S Code Sec. 6101(a)(3) provides as follows:
Except when the head of an Executive agency, a military department, or of the government of the District of Columbia determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that—
(A)assignments to tours of duty are scheduled in advance over periods of not less than 1 week;
(B)the basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;
(C)the working hours in each day in the basic workweek are the same;
(D)the basic nonovertime workday may not exceed 8 hours;
(E)the occurrence of holidays may not affect the designation of the basic workweek; and
(F)breaks in working hours of more than 1 hour may not be scheduled in a basic workday.
Although some federal employees are excluded from this provision, let’s assume Keisha is covered. In that case, it appears that the regional manager has violated the provision in several ways. First, he is not the “head of the Executive agency.” Consequently, even if he had done a thorough analysis and determined the current schedules would “seriously handicap” the agency’s regional work, he is not empowered to do so. Moreover, even if the head of the agency made the determination, he/she would need a written factual analysis to support that conclusion; mere opinion is not enough to satisfy the law. (Check out Acuna v. U.S., 479 F.2d 1356, 202 Ct. Cl. 206 (1973).)
Second, without a proper foundation to deviate from 6101 requirements, management violated Keisha’s right to two consecutive days off. Third, again without the proper foundation management has also violated her right to have the same regular starting times or working hours every day in that work week.
The union can file one grievance including all statutory violations; or it can file a ULP with the FLRA over the violation of the union’s institutional right to bargain and a contract grievance for Keisha (and anyone else in the unit if it wishes) over the 6101 violation.
The FLRA has dealt with 6101 violations repeatedly. Its latest case was NTEU, 65 FLRA 978 (2011)wherein it upheld an arbitrator who found that management violated the same 6101 provisions described above and she ordered back pay for the employees. Also check out AFGE, 36 FLRA 98 (1990) and IAM, 47 FLRA 427 (1993). You will see that in all likelihood the agency must give Keisha retroactive overtime pay for working days and hours that conflicted with here 6101 rights.
5 USC 6101 and the related federal regulations at 5 CFR 610 are critically important employee protections. They minimize assignments to split shifts, non-consecutive days off, varied work hours in the same week, and other scheduling oddities that can cause havoc in an employee’s personal life.
With budget problems looming on the horizon of every federal agency, unions should prepare their reps and members to spot 6101 infractions such as these. Based on the case law, it appears that even if a manager made these changes for just one employee for just a single week and only to minimize the harm and likely lateness that a local road resurfacing will generate during rush hours, the law had been violated. Of course, do not forget to ask for interest on the back pay and attorney fees.
This is one of those cases where you probably want an experienced federal sector attorney presenting the union’s case because the some subtle back pay differences under ULP law versus 6101 law. As always, FEDSMILL does not provide legal advice. If you need it, find a competent attorney.