WHAT IS THE REMEDY FOR AWS/CWS VIOLATIONS?

Lots of unions are out there filing grievances against management decisions to unilaterally terminate or change AWS/CWS schedules, e.g., 5/4/9, 4/10, etc. They are accusing agencies of violating contract provisions, CFR regulations, and unfair labor practices. They are asking for the schedules to be reinstituted, but if that is all they are seeking they are missing something big, i.e., a great remedy or two.  Here is why.

If an employee worked either a 5/4/9, 4/10, or other standard set of hours and days other than a normal eight-hour, five-day schedule, they may be entitled to back pay.  Imagine an employe worked a 4/10 schedule that had her working from 8 a.m. to 6:30 p.m. Monday through Thursday every week. If she is then ordered to a five-day, eight-hour a day tour from 9 a.m. to 5:30 p.m. there is a very good argument that she is entitled to back pay.  Why? Because she was entitled to put in her forty by the end of the day each Thursday.  By reporting for eight hours of work on Friday that is overtime or beyond her 40 hours. If she had worked a 5/4/9 schedule she would be owed OT for that extra day of work every two weeks. If she is FLSA covered, she is owed triple her hourly rate for each of those extra eight hours.  FLRA has already approved such a remedy.  Look up cases involving these regulatory sections: 5 U.S.C. § 6101(a)(3); 5 C.F.R. § 610.121 for the rationale supporting back pay.

For those on credit hours or maxiflex without a set schedule, it will be difficult to establish the extra hours the employee had to work. However, they and those on 5/4/9 or 4/10 might have claims for retroactive sick and annual leave if they had to take leave to cover situations that previously they could have used their flex time to tend to without a charge to leave.

And of course, if the union wins back pay, interest and attorney fees follow.

If you are going to file a grievance over the termination of a AWS/CWS schedule, don’t make the mistake of just asking for the schedules to be reinstated.  If you ask for that an “all other appropriate remedies” that should be OK. Personally, I would ask for reinstate of the schedules, and all other appropriate remedies, to include at a minimum, retroactive leave, overtime, commuting expenses, etc. By specifically mentioning leave, OT, etc. you reduce the ability of the agency to claim “surprise” at an arbitration hearing.