UNION REP TEST #3 (LR – COVID CHANGES) 

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 the employee Keisha. 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 management’s COVID-related desire to reduce the number of people in the office at one time, the agency’s regional manager decided to adjust the schedules of the people in Keisha’s work unit.  Keisha’s new hours are 8 a.m. to 4:30 p.m. on Tuesday and Friday, but the rest of the week she is to work from 10 a.m. to 6:30 p.m. Everyone in Keisha’s unit had similar changes.  The first time the union rep heard this change was coming was when Keisha told him.  What should the union rep do? 

 ANSWER: First, the union rep should probably check in with the supervisor and/or Labor Relations to get some the details, point out that no one ever gave the union prior notice of the changes and for a return to the prior hours for that reason alone. But assume that it takes the position that it does not have to tell the union about the change.  That could be for a number of reasons, e.g., they claim the change is covered-by an existing agreement, the agreement gives the agency the right to do this, this does not amount to a change in conditions of employment, the change is de minimis, or the change is the result of an emergency or at least necessary to keep the agency functioning.  It does not matter what excuse they give for not notifying and bargaining with the union.  The next step is the same. 

Second, the union rep should file a grievance, but not just a grievance alleging a contract violation, e.g., “Article 8, Section 4A – Employees will be given uniform working hours.” What the agency has done here probably violates at least two statutes.  To begin, the union rep should assume the agency’s failure to give the union advance notice is a ULP (5 USC 7116(a)(1) & (5).  There is no need to determine yet whether any of the defenses the LR rep rattled off is valid. 

The other legal infraction is a violation of 5 USC 6101 which reads 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 safety and health efforts, 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, data-rooted analysis to support that conclusion; mere opinion or speculation is not enough to satisfy the law. (Check out Acuna v. U.S., 479 F.2d 1356, 202 Ct. Cl. 206 (1973) as well as NWSEO and NWS, 38 FLRA 369 (1990), VA and AFGE, 36 FLRA 98 (1990), and IAM, 47 FLRA 427.) 

Any related contract provisions should also be cited in the grievance.  It would also be very wise to check to see who got assigned the least desirable hours.  If it turns out it is only the women or Hispanics or over 40 employees in the unit, there just might be a civil rights violation.  At Fedsmill.com we typically allege the civil rights violation even before we have all the facts.  It not only will take some time to gather those kinds of facts, but in addition if we do not include the EEO issue with the other issues there is a very substantial chance that trump appointees would prohibit taking that to EEOC. 

The union rep accomplishes a couple of things by citing the ULP, Section 6101 and the contract provisions.  To begin, s/he gives the union a chance to win on other grounds even if it turns out this does not violate the negotiated agreement.  S/he also creates the potential to go to court to uphold an arbitration win even if Trump’s two political operatives at FLRA overturn the contract and statutory violation just to keep their political sponsors happy.  Much the same can be said about the EEO allegations which also come with alternative appeal options. 

Third, the union rep should ask for every possible remedy. In this case, any infraction of the agreement or ULP protections merits a return to the prior work schedules and a make whole order.  For example, some employees may have had to take leave because the newly assigned work hours significantly clashed with other parts of their lives.  Others might have had to pay increased childcare costs or even unusual commuting costs.  The EEO issue if proven could lead to back pay, compensatory damages, attorney fees, reimbursement of costs other than back pay or leave, and an order to consider disciplining the manager who made these decisions. But there is even more to be had here.  Given that Keisha’s normal tour was 8 to 4:30, but on three days a week she had to stay until 6:30, the union should request that she be paid overtime for the two hours she worked those days that she should not have had to work.  If it takes a year to correct the problem, that could amount to 300 hours of overtime compensation for Keisha. 

Fourth, it is time to let the unit employees or at least the members in the impacted unit know what the union is doing for them.  That will not only help answer the perennial question of what is the union doing for me, but also will help the union learn more about any unusual harm employees are suffering due to the new hours, e.g., had to buy a new car, had to drop out of a after-hours college class, had to resign from a second job, had to take a voluntary downgrade reassignment to maintain the prior hours, etc. 

Fifth, start drafting an information request.  By citing the ULP, 6101 and EEO statutes the union has created grounds for getting information related to each. As soon as the agency answers the grievance and identifies the reasons why it believed it did not have to give the union advance notice of the change, the union rep can submit a supplemental request related to the claimed defense. 

Agencies are going to try to make lots of changes to adjust to the news COVID reality and the union should be prepared to responded very thoroughly when the changes are adverse.  

Stay safe out there. 

 (This is the third in a series of postings we started in late 2019 to help union reps develop ever deeper understandings of their power. They are and will be titled “Union Rep Test #.”)