OMG!!!! REALLY? AFTER 40 YEARS OF CASE LAW.
Not long ago at all we ran across a case that left us confused about whether to be angrier with the agency or the union. We are not going to identify the parties or the case so that we can say what we really think. (Besides one of the two parties is really, really sensitive about any publicizing of its less-than-admirable representational moments.) The grievance was filed in Austin, Texas in 2009 and the arbitration decision was issued in late 2015. You are probably thinking that it must have been horribly complex or the employee went into a coma for six years or it took years of litigation to get the necessary documents into the record. Nope! It was a simple disagreement over an appraisal score. The employee wanted to be rated one level higher, which would have increased the amount of her annual performance award by $50.00. So, why did it take six years?
Based on the record it took that long because nothing in the parties’ contract or culture demands that the case move faster than that. The agency obviously has not insisted on a contract clause that requires the union to litigate the case promptly or—
(1) drop it,
(2) pay the arbitrator’s entire fee rather than half of it,
(3) forfeit any right to attorney fees or back pay, or
(4) lose a chunk of official time as a kind of fine.
Similarly, the union has not demanded prompt scheduling contract guarantees either. How hard would it be for the union to turn the tables to propose penalties on the agency when it dragged its feet?
Finally, even if neither party can bring itself to accept a contract clause making it accountable for years of delay, each has the ability to penalize its own employees if they let cases overage as this did. But, again, that does not seem important to either side.
Call us old fashion, but we believe a union owes its members better service than this. Let’s remember that below all this procedure and litigation there was an employee who thought she had been mistreated, turned to her exclusive representative for help, and was left twiddling her thumbs for six years. (She would have been within her rights to mount a campaign encouraging people to drop their union membership.) Happily, in what might be a slice of poetic justice, the arbitrator denied the union’s request for about $40,000 in attorney fees because it made a well-known technical error in drafting its petition for fees—and FLRA upheld the arbitrator’s decision. We called folks’ to attention to this kind of technical error back in 2012. Even if the technical requirement was not well-known throughout government, it should have been well-known to this union because it lost fees for the same reason in another case about a year earlier. Perhaps it is time that the union step up the leadership of its field staff because of loss of $40,000 here and there and wherever can add up to a lot of damage to the treasury of any employees’ union. We recommend it have staff read FLRA’s basic advice, e.g., Guide to Arbitration and Contents of Exceptions. It should also look for a systemic or root cause because experienced, top-talent staff should not be making this mistake repeatedly.
While the union has good cause to hang its head in shame over this one, the agency should be slouching just as much. In an era of employee engagement and annual interrogations about how responsive management is to employees, letting an employee’s dissatisfaction fester for six years is just hypocritical. Moreover, it just spent something approaching $10,000 in staff time, official time, and arbitration costs to attempt to dodge about $100 in back pay liability. No wonder people say what they do about government workers. Wake up LR! You are supposed to make these kinds of cases go away with settlements. How hard would it have been to agree two years ago to change a four-year old appraisal score and pay her $50.00?