AFGE PRECEDENT LEADS TO CONTRACTING OUT BACK PAY VICTORY
There have been a half-dozen or so cases over the years where unions have tried to get back pay for bargaining unit employees when the agency contracted out some or all of their work. No one has succeeded yet—or at least until now. But thanks to a 1982 AFGE precedent-setting case (AFGE, 8 FLRA 604 (1982) all that is on the brink of changing.
When IRS contracted out some work previously done by recently reassigned employees, the employees’ union filed a grievance alleging a failure to notify and bargain ULP. The arbitrator agreed with that allegation and ordered the agency to “return to the status quo ante in the assignment of all routine deskside work to unit employees…until the Agency and union engage in impact bargaining.” She further found a causal connection between the agency’s illegal act and “some loss of compensation or other benefits by individually affected deskside employees.” Consequently, she ordered that the agency bargain with the union over how much back pay the impacted employees should receive.
The agency threw the proverbial kitchen-sink at the decision when it filed exceptions with FLRA only to find the Authority referring to the 1982 AFGE precedent as grounds for upholding the back pay order. The Authority told the agency that it all came down to the 1982 criteria described in that case for determining whether a status quo ante order is valid when the union was denied the right to bargain the impact of an otherwise non-negotiable change.
Accordingly, in determining whether a status quo ante remedy would be appropriate in any specific case involving a violation of the duty to bargain over impact and implementation, the Authority considers, among other things, (1) whether, and when, notice was given to the union by the agency concerning the action or change decided upon; (2) whether, and when, the union requested bargaining on the procedures to be observed by the agency in implementing such action or change and/or concerning appropriate arrangements for employees adversely affected by such action or change; (3) the willfulness of the agency’s conduct in failing to discharge its bargaining obligations under the Statute; (4) the nature and extent of the impact experienced by adversely affected employees; and (5) whether, and to what degree, a status quo ante remedy would disrupt or impair the efficiency and effectiveness of the agency’s operations.
In this new case, NTEU, 68 FLRA 1027, the union was able to show that every one of the criteria had been met. Consequently, the Authority upheld the arbitrator’s decision, and now we will see how much back pay the union can bargain for. Of course, given that the grievance is a ULP claim, the agency could take the case to the Court of Appeals and modify or overturn the decision. We will all have to wait to see what the agency does.
In the meantime, when the union files an allegation that a change was made without giving it advance notice and a chance to bargain and it requests back pay through a status quo ante order, both sides need to focus hard on the five criteria above. In fact, FLRA reminded the agency that if the union notified it before the arbitration hearing that it would be seeking back pay and status quo ante, the agency has to present evidence in the arbitration as to why the criteria are not met. The Authority will not listen to an agency’s evidence if it is not first presented to the arbitrator.