WHAT’S WRONG WITH THIS WRITTEN GRIEVANCE?

Look over the facts listed below to see if you can spot the potential problem in how this grievance was written.  Sarah Smith, our fictional employee, did not make the Best Qualified List for a promotion because the agency used a ranking factor it should not have. If that factor had not been used, Sarah and three other employees would have been on the BQ list instead of the four who were on it when management chose the top-ranked person on the list. Sarah sensed something was wrong when she was not placed on the BQ list, and brought her concern to the union.  It obtained the promotion package, found the error and represented Sarah on the grievance she filed.  It did not file on behalf of the other three harmed employees because they were not members and when asked if they wanted to be covered by the grievance they told the union to leave them alone.

The grievance outlined the facts, alleged violations, and concluded with the following remedy request: “The union requests any and all remedies appropriate to correct the violation, including priority consideration, retroactive promotion, and back pay.”  The case went to arbitration where there was a dispute over the remedy the arbitrator was empowered to impose. The agency wanted to exclude any reference to retroactive promotion while the union made the same remedy request as contained in the grievance.  The arbitrator chose to go with the union’s statement noting that Article 6 of the contract stated, “The arbitrator is empowered to award all necessary corrective actions when a violation is found.”  Throughout the hearing and in its post-hearing brief the agency stated that even if it did use the wrong ranking factor any remedy for Sarah beyond a letter of apology was inappropriate.  It argued that others were harmed just as much as Sarah but they not covered by the grievance.

Can you see the potential problem yet?  Here is a hint.  It has to do with the advice we provided below in an earlier post entitled “Grievance Drafting Tips.”  We were explaining how to best word the desired remedy to give the arbitrator the broadest authority to remedy a grievance.

The far better approach is to list any specific remedies and then add to that list the phrase “and all other appropriate remedies.” For example, your grievance could have said that as a remedy you want “a public admission in writing that management was wrong, priority consideration and all other appropriate remedies.” That expression gives the arbitrator the power to impose any remedy she feels is just, even if you never discussed it in the grievance meetings. In addition, you have increased management’s liabilities if it lets the case go to arbitration.

Here is another hint.  Suppose the arbitrator’s  award read as follows:

Based on the violation found pursuant to Sarah Smith’s grievance, I order the agency to award priority consideration to Ms. Smith and each of the other three unit employees who were harmed by the incorrect use of the ranking factor.  The names of those four employees alone will be given to the selection official for the next appropriate vacancy. I have chosen to extend the remedy to the three employees who did not grieve because each would have been ranked higher on the Best Qualified list than Sarah if it had been properly ranked.

Here is a final hint.  The day after the arbitration decision arrived management told the union it was accepting the decision, had a vacancy, was putting the four employees on a list alone for the selecting official, and would select one of the three nonmembers for the vacancy. Not Sarah.

Now to the answer.  If you see the world the same way we do, you should be furious that the arbitrator extended the remedy to three employees who did not grieve and that management used that to once again deny Sarah Smith the promotion she worked so hard to pursue. However, if the union filed exceptions to try to correct the problem, it most likely would have failed because FLRA has rejected the common sense approach to remedies in favor of once again making it tricky for practitioners on both sides of the table to figure out what to do. Here is how FLRA would probably decide the issue.

First, it would acknowledge that, “…if a grievance is limited to a particular grievant, then the remedy must be similarly limited.”  See AFGE, 66 FLRA 62 (2011)  But, don’t get excited yet that you guessed the right answer because there are many exceptions to this foundational, common sense rule.

Second, it would examine the record to see if everything points to agreement among the union, agency and arbitrator that the grievance was just limited to a named grievant. Based on AFGE, 53 FLRA 43 (1997), it appears FLRA will look at each of the following factors for even one defect that opened the door for the arbitrator to do what she did:

• did the arbitration issue statement clearly and unambiguously limit any remedy to Sarah or was it vague about limiting any remedy to Sarah as it was here,
• did both the union and agency agree at the hearing that only Sarah could receive a remedy or as happened here was there any kind of dispute over the remedy during the hearing or briefing process, or
• did the arbitrator find something in the contract authorizing her to ignore those two elements–like the contract provision mentioned here which arguably opened the door for the arbitrator to “interpret” the conflict as she sees fit.

Third, if even one of those factors is lacking, then the FLRA turns to several other case law precedents, each of which favors adoption of the arbitrator’s award. For example, if the issue statement did not clearly limit any remedy to Sarah, FLRA would likely give the arbitrator’s interpretation “substantial deference.” The issue statement of our hypothetical case could have been written in either of the following ways:

• “The union requests any and all remedies for Sarah Smith appropriate to correct for her alone the violation, including priority consideration, retroactive promotion, and back pay.”
• “The union requests any and all remedies for bargaining unit employees appropriate to correct the violation, including priority consideration, retroactive promotion, and back pay.”

Both are clearer and less ambiguous as to who could receive a remedy, especially in contrast to the issue the arbitrator in our hypothetical case adopted, i.e. “The union requests any and all remedies appropriate to correct the violation, including priority consideration, retroactive promotion, and back pay.”  Here is where we have to admit that our previous comment could have been sharper by urging that the union spell out with unquestionable clarity who may receive a remedy if the grievance is sustained.

If the issue statement was clear and unambiguous, another FLRA precedent grants “substantial deference” to the arbitrator to interpret the contract.  If she finds a provision that she believes conflicts with the parties’ agreement to limit the remedy or even the issue statement, the Authority could again give her interpretation “substantial deference” and sustain her remedy. (See AFGE 66 FLRA 1012 (2012))

The final precedent the Authority would likely apply is that the arbitrator has great discretion to fashion a remedy once a violation of contract, regulation or law is found.  If you wonder how much, page through AFGE, 65 FLRA 787 (2011) where the Authority upheld an arbitrator’s decision to undo performance award decision for every unit employee even though it had filed a grievance on behalf of only nine employees who did not receive an award. The Authority allows arbitrator to impose decision that ”affect” non-grievants so long as the arbitrator does not award them relief. (See also FEA, 66 FLRA 181 (2011)).

The lesson here is that the union should be deliberate and precise when drafting the remedy portion of a grievance, similarly exact agreeing on the issue the arbitrator is to decide, and if there is any kind of dispute over the remedy in the hearing address it with rebuttal testimony and in the post-hearing brief.

Looking beyond the problem posed above, it is worth noting that unions have substantial flexibility in situations like Sarah’s.  For example, it could have—

• Let Sarah file the grievance just for herself and done nothing for the other harmed employees, or
• Filed a companion grievance to Sarah’s on behalf of all similarly impacted unit employees–or just the one of the other three harmed employees if he asked for the union’s help, or
• Filed a single grievance on behalf of Sarah and all similarly impacted unit employees.

The first option is the best approach for Sarah, but the other two give the union tactical advantages in building membership and/or raising management’s potential liability.