NFFE WINS BREAKTHROUGH TELEWORK ARBITRATION AWARD

NFFE’s General Counsel’s shop has done all of us a favor with its recent arbitration victory. Like most unions since Trump’s anti-common sense decision to stamp out telework, it has had to file grievances and move them to arbitration to protect its members. In its newest case, it protested the Forest Service’s decision to unilaterally wipe it out despite some very clear contract language. More importantly, it asked for the most aggressive remedy I have seen so far in these telework decisions.

Management defended its unilateral actions citing the decision in NTEU & EPA where arbitrator Gorman found the contract language gave management the freedom to radically change or take away the union members’ telework deals without bargaining. But NFFE walked the arbitrator through the differences in the EPA contract versus the NFFE Forest Service Agreement, convincing him to reject the NTEU-EPA decision as relevant. Moreover, rather than relying solely on the contract language to oppose unilateral changes it also alleged the agency’s telework termination was a ULP.  (As we have said elsewhere and often, whenever challenging an agency’s decision to change a practice, even one explicitly described in a contract, the union should always also allege a ULP violation.  An anti-employee FLRA as we have now can senselessly overturn an arbitrator’s decision that a contract provision was violated and there is nothing the union can do about that. But if a ULP issue was also involved the union can appeal the FLRA’s decision to a court where there are still some neutral and honest decision-makers.)

Now, to the remedy. NFFE asked for and received an order that the agency return to the status quo ante and an order that it restore any leave any employees took because telework had been denied them.  That back pay order also opened the door for the union to claim attorney fees.  But it also asked that the arbitrator order the agency to reinstate any employees who had resigned from the Forest Service due to the hardships created by the telework termination.  That could mean months if not years of back pay for some NFFE member claiming a constructive discharge.  Those who were given telework as an accommodation  for a disability are in a good position to win those claims.

The rest of us should take NFFE’s initiative and include the reinstatement demand in our cases as well.