ARE YOU “GETTIN’ ENOUGH”— FROM GRIEVANCES? (Part 1)
One of the first mistakes a union can make when drafting a grievance is to not ask for enough of a remedy. Not only does the grievant potentially lose something she might have been entitled to, but the union misses a chance to raise management’s liabilities and risks. The FLRA has approved over three dozen different remedies arbitrators can impose. Are you aware of each?
(Part I of this posting will focus on the many ways an arbitrator has to order back pay. Part 2 will cover non-economic remedies.)
A description of the requested remedy is usually the last item covered in a written grievance, but it can shape the entire case. For example, if an employee is improperly taken off a compressed work scheduled such as 5/4/9 and forced to work the traditional 8 hours for 5 days schedule, one requested remedy might be that the employee be returned to his 5/4/9 CWS schedule. But, if that is all the union requests, it may be handcuffing the arbitrator.
FLRA normally limits an arbitrator’s power to the scope of the matter submitted to arbitration. (See AFGE, 45 FLRA 1234) Usually, that is spelled out in the original grievance. Consequently, if the union only asked for CWS reinstatement that is all the arbitrator can order no matter what other harm she may find and want to correct.
There are exceptions to this rule about the scope of an arbitrator’s authority, but it is far safer to ask for a broad range of remedies when filing a grievance. In fact, the safest course is to always, always, always include in the remedy request section the phrase, “. . . and any other remedy deemed appropriate.” Most arbitrators consider that to give them the power to award virtually any remedy.
When listing specific remedies, the union should try to find back pay implications in any grievance it files. For example, take the case of the employee improperly taken off a CWS. Should he be paid overtime for the hours he worked on that tenth day of the pay period when he would not otherwise have had to work? Should any leave he took as a result of being forced to work every day of the pay period be restored if he can show he would have otherwise used his CWS day off? Should the agency pay his commuting costs for the day he had to travel to the office that he otherwise would have had off?
The law specifically mentions back pay as an available remedy (5 USC 5596). All the union need prove in a grievance is that the employee was affected by an unjustified or unwarranted personnel action that resulted in the withdrawal or reduction of pay, allowances or differentials. (See NTEU, 62 FLRA 432)
Below is a partial list of the forms of back pay the FLRA allows arbitrators to impose.
Allotments– “In order to keep the dental plan active, the Union paid the cost of the dental allotments that the Agency failed to timely deduct from the employees’ pay and remit to the Union. Although the Agency eventually began to withhold and remit the dental allotments after seven months, the Agency did not reimburse the Union for the amount the Union paid to cover the costs of the dental allotments during that seven-month period. The award, therefore, reimburses the Union for “the very thing” to which the Union is entitled the amount of money that would have been remitted to the Union for the dental allotments but for the Agency’s error and contract violation. . . .Accordingly, because the award provides for equitable relief, we find that the doctrine of sovereign immunity does not apply.” (AFGE, 66 FLRA 517)
Arbitration Costs– “. . .the Arbitrator’s determination to allocate the fees and expenses of arbitration to the Agency is indistinguishable from the arbitrator’s determination to do so in United States Dep’t of Health & Human Servs., Soc. Sec. Admin., Office of Hearings & Appeals, 48 FLRA 833, 835-39 (1993) (SSA, Hearings & Appeals). There, in the face of a contract provision allocating fees and expenses equally between the parties, the arbitrator found that the agency’s violation of the parties’ agreement extended the length of the arbitration hearing and, as a result, the agency should be required to pay more than half of the fees and expenses.” ( AFGE, 62 FLRA 214)
Attorney Fees– “In FDIC, the arbitrator found that a national counsel, an attorney, was responsible for directing and overseeing all aspects of the case and that a field representative performed services as a paralegal under the supervision of, and as the agent for, the national counsel. The Authority upheld the award of fees for the paralegal services of the field representative as consistent with case precedent and § 550.807(f). In addition, the Authority noted that in at least two decisions, the MSPB awarded attorney fees for the services of law students and legal assistants.” (NATCA, 64 FLRA 574)
Awards-“Specifically, the Arbitrator ordered the Agency to give the grievant a Recognition of Contribution (ROC) award as a substitute for the performance award the grievant originally received. Id. The Arbitrator also ordered the agency to pay the grievant the difference between the two awards.” (AFGE, 65 FLRA 946)
Bar Exam Costs– “The Activity fails to establish that reimbursement of that portion of the grievant’s bar review course that was directly related to the grievant’s position of appeals officer and that would enable the grievant to increase his ability to perform his current job is contrary to the Training Act or decisions of the Comptroller General.” (NTEU, 28 FLRA 983)
Damages– Neither the labor relations statute nor the doctrine of sovereign immunity authorize the agency to pay damages for a contract violation or unfair labor practice. However, the various civil rights acts do allow the union to ask the arbitrator to impose damages for either emotional stress or monies lost if those laws have been violated. Similarly, the FLSA authorizes liquidated damages for inappropriate payment of overtime, and if an employee’s rights are violated under the Privacy Act arbitrators can order agencies to pay damages. “If these three factors are satisfied, then the grievant is entitled to the greater of $1,000 or the actual damages sustained, pursuant to § 552a(g)(4) of the Act.” (NAGE, 58 FLRA 706) See also LIUNA, 60 FLRA 202.
Differentials– “The remedy ordered by the ALJ included a provision for 5 percent hardship pay and two Environmental Morale Leave (EML) flights for both employees. . . .On appeal, the Authority determined that the ALJ properly included the hardship differential in his make-whole remedy.” (OFT, 54 FLRA 259)
Discipline– “Additionally, we will order that all references to the suspension be expunged from the grievant’s personnel file and that the grievant be reimbursed for any lost pay, allowances, or differentials resulting from the 4-day suspension. . . . We further find that the discipline directly resulted in the loss of pay, allowances, or differentials and that, but for such action, the grievant would not have suffered the loss. In our view, such an order is mandated under the Back Pay Act and will fully remedy the grievance.” (AFGE, 44 FLRA 1395)
Debts– “However, the arbitrator denied the agency’s claim that the grievant reimburse it for the $7,574 expended. On appeal, the agency argued that the award was contrary to law and regulation. . . .The agency’s exceptions were denied.” (OEA, 22 FLRA 142) See also NTEU, 64 FLRA 720.
Dues– “The remedy for failing to comply with section 7115(a) properly includes a requirement that an agency reimburse a union for the dues it would have received but did not as a result of the unlawful conduct.” (IBEW, 46 FLRA 9)
Equipment– “However, the agreement clearly did mandate reimbursement, the arbitrator determined. The arbitrator ordered the agency to reimburse the employee for her footwear under the agreement’s guidelines. . . . The FLRA concluded that neither the cited cases nor the agency manual provided a basis for finding the award deficient.” (NAGE, 64 FLRA 1126)
Grade and Pay Retention– “With regard to saved grade and pay, the Arbitrator ordered the Agency to ‘pay the grievants at the grade of their old positions for two years from the date of their placement in the new [lower-graded] seasonal maintenance positions.’. . . For the reasons set forth below, we deny the exceptions.” (AFGE, 64 FLRA 961)
Health Insurance– “Make whole affected employees, including reimbursing employees represented by the National Treasury Employees Union and National Treasury Employees Union Chapters 242 and 244, the exclusive representative of its employees, for their increased insurance premium expenses suffered as a result of the rise in cost of the family option of the Agency’s own health insurance plan after August 5, 1987, resulting from the Agency’s improper action.” (NTEU, 41 FLRA 272)
Interest on Back Pay– “However, the Arbitrator awarded the grievant back pay based on the Agency’s violation of the parties’ collective bargaining agreement, not mere delay. Because the Arbitrator properly awarded the grievant back pay under the Back Pay Act, the payment of interest on that back pay is warranted. As the Agency did not contest the amount of interest to be paid, the issue is not discussed herein. “ (FEA, 56 FLRA 208)
Layoff– “The arbitrator awarded the grievants back pay to reimburse them for the 700 hours a year they would have worked as Intermittent Customs Inspectors but for the layoff which ensued after they engaged in whistleblowing activity. On appeal, the FLRA found that the award was in accordance with the Back Pay Act. It noted the arbitrator’s rejection of the employer’s defense that budget and staffing considerations justified the layoff of the three grievants. The exception was dismissed.” (NTEU, 37 FLRA 1020)
Leave– “Recrediting an employee with annual leave lost as a direct result of an unwarranted or unjustified personnel action is authorized under the Back Pay Act.” (AFGE, 41 FLRA 550)
Medical Certification Costs– “The Arbitrator indicated that the decision by the Activity’s supervisors that all sick leave requests for the day following Thanksgiving 1985 would have to be supported by medical verification violated the parties’ collective bargaining agreement and past practice. The Arbitrator therefore sustained the grievance based on the provisions of the parties’ collective bargaining agreement and the parties’ past practice. As his award, he directed the Activity to reimburse the grievant for the $56 of expenses she incurred in obtaining the medical certificate.” (AFGE, 28 FLRA 198)
Mileage– “As to the merits of the grievance, the Arbitrator concluded that the grievant was entitled to mileage reimbursement under the statutes and regulations governing federal employee travel claims and directed the Agency to pay the grievant’s claim.” (UPTO, 64 FLRA 271)
Moving Expenses– “Similarly, in United States Department of Transportation, Federal Aviation Administration, 63 FLRA 15 (2008) (FAA), the arbitrator sustained a grievance concerning the agency’s denial of reimbursement of moving expenses, concluding that, under the doctrine of detrimental reliance, the grievants had the right to rely on the agency’s assurance that they were entitled to reimbursement of moving expenses if they relocated. The Authority denied the agency’s exception, which relied on Richmond, where the Court held that the federal government cannot be compelled to make expenditures of funds unless the expenditure is authorized by statute. Richmond, 414 U.S. at 426. The Authority concluded that the agency did not argue, much less establish, that payment of the disputed expenses violated any federal appropriation law, and the Authority denied the exception.” (NTEU, 64 FLRA 615)
Official Time– “Union reps who are charged AWOL, LWOP, or who use their annual leave to perform union duties because management will not allow them to used official time can be reimbursed in cash or through a restoration of leave. While they cannot get overtime, they are entitled to receive straight time pay if they work outside their eight or forty hour limits, e.g., work at home at night on matters for which official time was refused. “Here, there is no dispute that the grievant performed improperly denied official time during non-duty time and, thus, is entitled to straight-time pay pursuant to §7131 of the Statute.” (AFSCME, 60 FLRA 527) See also NTEU, 19 FLRA 956 which allows union representatives to claim their share of any group award where they participated in the group.
Overtime– Unions can get back pay related to overtime if the agency 1- failed to pay the employee the proper amount for the overtime hours worked, 2- did not give her an appropriate share of the overtime work if the contract or practices required that, or 3- even if the agency wrongly prevented the employee from working overtime that she otherwise would have. “. . .were it not for the Agency’s unlawful abrogation of the Agreement by not affording the grievant the opportunity to work overtime on the CABA project, it is clear. . .that the grievant would have accepted, if asked, overtime work on the CABA project. . . . . This finding demonstrates. . . that the grievant was affected by a violation of the agreement that “resulted in ‘lost employee benefits, within the meaning of the Act.’” (AFGE, 57 FLRA 538) See also NAGE, 57 FLRA 744.
Parking– Reimbursement of parking is tricky because in some instances it conflicts with the concept of sovereign immunity. In general, arbitrators may not reimburse employees for parking costs associated with their commute to and from work. However, arbitrators are permitted to reinstate free parking pending the outcome of further negotiations or even to order future parking costs subsidized by the agency to offset the costs employees improperly had to pay. “Unlike the remedy in INS, the make-whole relief requested in this case does not involve ‘a monetary payment to adversely affected employees. Rather, the requested remedy would require the Respondent to reduce the rates charged to employees for a period of time necessary to offset the difference between the unlawfully implemented rate — $10.96 per pay period — and the former rate –$3.46 per pay period — until such time as the employees have been fully reimbursed. offsets are typically viewed as equitable in nature. . . .Therefore, consistent with FAA, we conclude that the requested remedy is equitable in nature and that the Judge’s reliance on INS is misplaced.” (AFGE, 55 FLRA 1213)
Pay Delays– “The Agency asserts that a narrow construction of the Back Pay Act precludes treating pay delays, per se, as unjustified or unwarranted personnel actions. . . .The administrative error rule identifies three situations when an administrative error creates an unjustified or unwarranted personnel action under the Back Pay Act, thereby permitting a personnel action to be retroactive, when the administrative error: (1) prevents a personnel action from being effected as originally intended; (2) results in a nondiscretionary administrative regulation or policy not being carried out; or (3) deprives an employee of a right granted by statute or regulation. . . . Accordingly, we find that Arbitrator Wray’s award is not contrary to law and deny the Agency’s exception.” (FEA 56 FLRA 887)
Per Diem– It does not address, and therefore it places no limits on, the payment of travel and per diem expenses unrelated to relocation expenses. Accordingly, we find that this exception provides no basis on which to find the award deficient. (MTC, 53 FLRA 390)
Premium Pay– “In his original award, the Arbitrator directed the Agency to reconstruct the process it used to determine which Agency positions are eligible for Saturday premium pay under 38 U.S.C. § 7454(b)(3). In a supplemental award, he concluded that the Agency’s new process for determining which positions are covered by § 7454(b)(3) failed to comply with his original award, and he directed the Agency to reconstruct the process again, with pre-decisional involvement by the Union. For the reasons set forth below, we deny the exceptions.” (AFGE, 64 FLRA 961)
Promotions– “The Authority has found that awards ordering retroactive promotions with backpay satisfy the requirements of the Back Pay Act where an arbitrator finds that the grievant would have been promoted but for the agency’s violation of the grievant’s priority consideration rights under a collective bargaining agreement. . . ., 59 FLRA at 563. Because the Arbitrator expressly found that “but for” the Agency’s violation of Article 13, § 11 of the parties’ agreement, the grievant ‘would have been promoted[,]’ we find that the award satisfies the two prongs of the Back Pay Act.” (NTEU, 60 FLRA 742)
Quality Step Increase– “As a remedy, the Arbitrator determined: The Arbitrator finds that those employees whose performance cash awards or incentive awards under Article 12 were deferred from February 20th until July 9, 2003 are entitled to a make whole remedy, including interest. . . . Similarly, these employees who received ratings of “outstanding” and were eligible for a quality step increase (QSI) during the February 20 through July 9, 2 003 period are entitled to make whole remedy, including interest. . . . Here, the Arbitrator determined that the Agency violated Article 12 of the parties’ agreement when it did not process performance awards in a timely manner. As such, the Agency’s conduct constitutes an unjustified or unwarranted personnel action. Additionally, the Arbitrator determined that the personnel action resulted, in the improper withholding of performance awards for some employees.7 Accordingly, to the extent that employee performance awards were improperly withheld, as we determined above in FAA, the award demonstrates that employees suffered a withdrawal or reduction of those benefits.” NLRBU, 61 FLRA 154
Resignations– “When a resignation is coerced, law permits the union to have it ruled an involuntary one, which entitles the ex-employee to be paid the salary and benefits she lost while off the rolls.” (AFGE, 41 FLRA 755)
RIFS– “Specifically, we find that a backpay award conditioned on the outcome of bargaining is a necessary element to remedy the Respondent’s unlawful conduct because no employee would have received a RIF notice, and thus suffered a loss in pay, allowances or differentials, until the Respondent had complied in good faith with its bargaining obligation.” (NAGE, 35 FLRA 844)
Retirement Contributions– “Take the following affirmative action: . . . (b) In accordance with the Back Pay Act, 5 U.S.C. § 5596, make whole all eligible charter members for salary and benefits lost as a result of the Respondent’s failure to implement the agreement in January 2005. This will include, inter alia, providing eligible charter members the opportunity to contribute retroactively to TSP, and providing pay adjustments for any eligible charter members who retired since January 2005.” (AFGE, 64 FLRA 735)
Special Rate Pay– “To remedy these violations, the Arbitrator granted the Computer Specialists backpay, retroactive to the effective date of the special rate. . . . Further, this interpretation supports the Arbitrator’s determination that, by refusing to pay the Computer Specialists at the special rate, the Agency changed the PMS. Accordingly, we reject the Agency’s argument to the contrary.” (PASS, 58 FLRA 23)
Suggestion Awards– “The Arbitrator sustained a grievance claiming that the grievant’s suggestion for lowering the Agency’s energy costs was improperly evaluated under the Agency’s Employee Suggestion Program (ESP), and that the Agency violated the parties’ agreement by denying the grievant’s request for a monetary award. Pursuant to the ESP, the Arbitrator ordered the Agency to pay the grievant $8,995. For the reasons set forth below, we deny the Union’s exceptions.” (AFGE, 59 FLRA No. 169)
Training Expense Reimbursement– “The Activity fails to establish that reimbursement of that portion of the grievant’s bar review course that was directly related to the grievant’s position of appeals officer and that would enable the grievant to increase his ability to perform his current job is contrary to the Training Act or decisions of the Comptroller General. . . In this case, the Activity has not established that an agency head’s discretion to determine that the expenses of a bar review course which are job related and otherwise meet the requirements of law are payable under the Training Act cannot be exercised through negotiations. Thus, we view the Arbitrator’s ruling that Article 30 of the national agreement was negotiated consistent with the Training Act to effectively constitute a finding by the Arbitrator that management had exercised this discretion under the Act. (NTEU, 28 FLRA 983)
Transit Subsidies– “Instead, the award directs the Agency to provide affected employees with backpay to compensate them for transit subsidies that have been improperly denied. . . .For the foregoing reasons, we conclude that the award of backpay is not contrary to § 7905(b)(2)(A).” (AFGE, 61 FLRA 64)
Travel– “The Agency exercised its administrative discretion in the oral agreement and allowed the practice of mileage reimbursement between the grievant’s residence and the Plantation POD to go ‘unchallenged from 1992 through 2007.’ . . . Accordingly, there is no basis for finding the award of mileage reimbursement contrary to the TEA and the FTRs, and we deny this exception.” (NTEU, 64 FLRA 777)
Uniform Allowances– “The agency was also required to pay an officer’s uniform allowance and “grant an additional uniform allowance to any other correctional officer who was required to purchase and wear a uniform other than that worn by correctional officers.” (See AFGE, 58 FLRA 279)
Within-Grade Increase– “Accordingly, the Judge properly concluded that backpay was warranted under the Act because the employees entitled to a WIGI between May 19 and November 8 did not receive them. . . .” NTEU 62 FLRA 432)
Work Schedules– When employees are improperly forced to work a different schedule of hours or days, FLRA has endorsed as legal the payment of “lost wages, annual leave, or other entitlement” (AFGE, 58 FLRA 549” The Authority also allows arbitrators to order that the harmed employees be paid at an overtime rate for hours they would not have had to work but for the improper work schedule. “ Moreover, the Agency fails to establish that despite these provisions, it attempted to ascertain whether the Work Schedules Act otherwise authorized its unilateral imposition of 10-hour workdays without the payment of overtime premium pay. In these circumstances, the Agency fails to show good faith and reasonableness and fails to meet the substantial burden necessary to overcome the presumption in favor of liquidated damages.” (AFGE, 60 FLRA 516)
(As always, we do not offer our postings as legal advice. If you face a legal question, find a lawyer.)