THE FUTURE OF OFFICIAL TIME UNDER TRUMP
The Administration and its finger puppets at FSIP are making it nearly impossible for unions to continue agreeing to bank time systems to represent employees. Ironically, they are also requiring agency executives to put their own necks and awards on the line even if they want to agree to a reasonable bank of time they know with certainty is necessary if it is more than an hour per year per unit employee. Consequently, as a big believer in Newton’s law that for every action there is an equal and opposite reaction, it is virtually certain that unions will adjust their official time tactics to mute, if not mock, Trump’s orders. Here is one path they might take.
As we said recently, it seems to us that agencies cannot demand that unions agree to bank time provisions that limit the amount of time they get. Given that FLRA believes the information must be available to justify the reasonableness of the time BEFORE it is approved, unions can insist on going back to an entitlement to reasonable time incident by incident. Experienced managers know that agencies could pay a big price under a broad reasonable time system. A supervisor will not be able to count on a union rep completing an expected amount of work each day because s/he will not know whether the union rep needs to be excused one time a day on official time or five times that day. Moreover, when the union rep needs the time the supervisor is likely to get in a mini-bargaining session of his own dealing with the other supervisor who has scheduled a formal meeting, investigatory interview, grievance discussion etc. at a time not convenient for the rep’s supervisor. FLRA just dealt with a case that highlights the mess all this is going to create for agencies in Davis-Monthan Air Force Base, Arizona and AFGE, Local 2924 (Union), 71 FLRA 227 (2019).
The parties’ agreement allowed the union rep to ask for official time. When the manager denied the rep time, she used annual leave to perform her representational duties and filed a grievance asking for about 26 hours of annual leave to be restored. It appears that amounted to about $500.00 of leave.
Here is what happened to the agency next.
- It’s supervisors had to have multiple grievance meetings with the employee and union rep. Of course the employee got official time to attend each as did her union rep. That came close to the 26 hours of agency time the employee was denied originally.
- It had to assign an attorney to represent the agency when the union invoked arbitration.
- It had to pull supervisors away from their primary jobs to prepare them for the arbitration hearing and to participate in the hearing.
- It had to have LR official respond to document requests.
- It had to present a case at arbitration, which the grievant and union rep attended on official time, and write a posting hearing.
- It had to write an exceptions brief to FLRA when it lost the case.
- It had to process a retroactive personnel action restoring the employee’s leave.
Our best guess is all that agency action probably took about five weeks of staff time at a much higher hourly rate than the employee’s hourly salary for the original 26 hours in dispute.
Two other very significant consequences came out of the agency’s decision to start this fight. First, the agency now must grant official time consistent with the precedents of this case, which allow time more easily than the agency wanted to allow it. Second, the arbitrator invited the union to file for attorney fees. It seems to us that the union can easily justify about 100 hours of time on the case. That could mean an attorney fee check for the union of between $25,000. and $50,000. depending on the experience level of the attorney.
Had the parties operated under a bank time system giving the union a fair amount of official time, none of the supervisors would have had to take time from their primary duties to deal with the dispute and the agency would have thousands of dollars extra to spend on national defense items. Or had the supervisor realized the mess it would generate for him and the agency to deny the time these adverse consequences also could have been avoided.
We see lots of cases like this coming along under the President’s plan to punish those who did not contribute to his election campaign. And this is only one of several responses available to unions that will create a less than ideal and efficient environment for running day-to-day agency operations.