ARRRRRRGH, SHAPE UP, FLRA! YOU JUST ALLOWED FED SECTOR SEX SLAVERY 

Earlier this month, FLRA upheld an arbitrator’s ruling that the union loses the right to file a grievance over a continuing violation of a contract, regulation, or law when it waits more the negotiated number of days for filing a grievance, e.g., 14,  from the date the union first knew about the violation. Consequently, it could never file a grievance over that violation ever again in the history of time—and beyond. Sounds absurd?  It is and FLRA should be ashamed of its anti-employee shortsightedness on this matter.  Here is why FLRA is sooooooo wrong.

Let’s take the actual case that highlighted the Authority’s blunder.  When an agency changed some employees’ work schedule and it failed to pay them overtime for certain hours.  The contract required the union or employees to file a grievance within 14 days of becoming aware of a violation of contract, regulation, or law. The arbitrator found that the union knew about the change in working conditions within two days of the change being made, but waited months to file a grievance.  Consequently, he proclaimed it was too late to file a grievance over even the recent violations. WRONG, WRONG, WRONG.  And here is why.

First, by so ruling the arbitrator effectively gives the agency the right to continue violating the law forever. Why? Merely because for some reason that happened months or even years ago the union leaders at the time failed to file a grievance. That could happen because the union leaders 1- did not know the agency’s actions violated a law or regulation, 2- because the union leaders at the time thought that the overall change the agency made had other benefits for the employees that they did not want to risk losing all the good stuff by challenging what they thought was a minor disadvantage, 3- because at the time the agency made the change the agency rarely took the specific action that violated the law, but that has since changed.  (At times, I ran into cases where an agency made a change that in the near term resulted in very few assignments of unwanted overtime work, but that then became common.) Or maybe some manager had promised the unio0n s/he would take care of it, but never did.

My point is that there can be any number of reasons why employees or union reps do not file a grievance sooner and none of them justify allowing an agency to continue to violate an obligation forever as happened in this recent case. FLRA SHOULD HAVE REALIZED THAT AND OVERTURNED THE ARBITRATOR. The correct decision should have been that the arbitrator had to at least consider any agency violations committed since the 14^th day before the grievance was filed. They would have been timely and consistent with the Authority’s “grievance recovery” precedent. An even better decision might have been to require the arbitrator to follow public policy on FLSA overtime violations and remedy any violations in the two years before the grievance was filed. Why should employees lose the statutory/regulatory right to pursue FLSA overtime violations retroactive to two or three years merely because they chose their statutory option of filing a grievance rather than a statutory complaint?

But it is not just the lack of common sense in ruling that past, if not ancient, acts of union reps can deny an employee’s right to challenge a currently on-going violation. There is also a considerable body of case law around something called the “continuing violation” doctrine that the Authority seems to be ignoring. Here is an example of the absurdity of this FLRA ruling.  Suppose a supervisor regularly demands sex from an employee who is so intimidated that neither she nor her union file a grievance until a year after both knew it was happening.  It seems that under this FLRA precedent she would have to continue servicing her boss for the rest of her career.

FLRA owes practitioners a deeper analysis than it provided in this case. Decisions like this make me think that James Abbott has found a way to continue exercising mind control over FLRA.  The Authority appears to have hidden behind the normally very legitimate concept that FLRA should not overturn an arbitrator’s interpretation of a contract to avoid thinking more critically. Given that FLRA Member Kiko Duffy overturned arbitrators’ interpretations over 100 times when she was the FLRA Chair, they certainly had the in-house “expertise” for how to do that.