EXCLUDING UNION REPS FROM CHOICE ASSIGNMENTS
Almost every job has those few assignments that carry hidden benefits, e.g., they almost always earn those assigned a cash award, generate extra promotion points, or even almost automatically boost one’s appraisal. What right does management have to exclude an active union rep from one?
The short answer is none–so long as there was not another legitimate reason for passing over the employee. As far back as 1985 FLRA faced a case where a union activist was excluded from a choice assignment, he otherwise would have had, simply because of his union work. The Authority called that a ULP and ordered the agency to give the employee his fair share of the award all those detailed to the choice assignment received. The FLRA did not mention attorney fees, but, in all likelihood, the union would have been entitled to them if it had asked. Take a look at NTEU, 19 FLRA 956 if you come across this situation.
If you want to get even deeper into the concept, look at NTEU, 41 FLRA 1420 (union activist denied a promotion), AFGE, 47 FLRA 1338 (union activist denied specialized experience credit for promotion because it was gained doing union work), and NATCA, 64 FLRA 365 (union activist’s approval to participate in special activity withdrawn because of union activity).
If you get involved in one of these situations, remember that FLRA applies the so-called Letterkenny test. See IBPO, 35 FLRA 113. The Authority has ruled that the union establishes a prima facie case of anti-union discrimination by demonstrating that: (1) the employee against whom the alleged discriminatory action was taken was engaged in protected activity; and (2) such activity was a motivating factor in the agency’s treatment of the employee “in connection with … conditions of employment.” Once the union does that, management may seek to establish the affirmative defense that: (1) there was a legitimate justification for the action; and (2) the same action would have been taken even in the absence of the protected activity. But, if it cannot establish those defenses, it loses.
(Originally posted December 11, 2011)