ETHICS TEST: DID THIS UNION SELL OUT ITS MEMBERS?
When is it okay for union leaders to drop pending arbitration cases that could potentially yield millions in back pay for members and non-members in return for agency agreement to allow one of the union leaders to work full time for the union? No union wants to trade one person’s grievance for another, which is often called “horse-trading.” Almost every union grievance manual condemns the practice. But it can be legal as well as ethical. Look at these facts and let us know if you think this union acted ethically or sold out employees.
We will call the union the International Union of Scientific Employees (IUSE) and the agency the Office of Science Directorate (OSD). Both are fictional names and as they say on TV any similarity between the facts below and any person or organization is purely coincidence.
IUSE has been fighting the OSD for nearly a decade to get a better performance award system for its unit employees. During that time, OSD has allowed each of its 24 divisions to create its own annual awards program despite the fact that all the employees are in a single bargaining unit. Some divisions budget 50% more for awards than others do; some grant awards if an employee’s appraisal average is 2.75 while others demand that employees score much higher to get awards; and some divisions grant awards solely based on performance appraisal scores while others add extra criteria. Not one of the divisions has told the union when it has made changes in its criteria, budgeting or other program element. Even worse, OSD refuses to bargain with the union at the level of exclusive recognition over a unit-wide awards program.
As you would expect from any union faced with that kind of arrogance, IUSE has done the following to pressure management to bargain over the awards program:
- It filed a ULP charge with FLRA to force OSD to release data showing how awards were distributed within each division by race, gender, national origin and age. Although the ALJ has yet to rule, he told the parties off the record at the end of the hearing that she was likely to rule against the agency and order it to release the data covering the last seven years. After all, federal regulations require the release of employee awards data, and several private web sites post employee names, award amounts, title, annual salary and location.
- Based on some very limited data the agency gave the union about a few of its divisions as well as some data that had “fallen into the hands” of the union, IUSE filed a grievance alleging some divisions had discriminated against African-Americans and Asian employees when distributing awards. (IUSE is known for filing such grievances in other agencies and winning millions in back pay for various civil rights classes.) AFGE members at SSA won a similar case (See Jefferson, EEOC No. 0120081816-18 (2011) and NTEU, 65 FLRA 102 (2012)
- IUSE filed a grievance alleging that the agency had committed a ULP by changing award criteria over a several year period without notifying the union in advance. Potentially, this grievance could yield over $100,000 for employee in back pay. NTEU, 63 FLRA 505 (2009) generated $10 million in back pay under similar facts.
- IUSE filed a grievance alleging that the agency had committed a ULP by refusing the bargain at the level of recognition over awards. This case has some back pay potential as well.
- IUSE filed a grievance alleging that the agency had committed a ULP by unilaterally cutting the award program funding without advance notice to the union and bargaining over the impact. The back pay potential here could be in the millions of dollars. AFGE, 67 FLRA 287 (2014) and AFGE, 55 FLRA 493 show how it got back pay for members from similar grievances.
Those are the facts and here is what the union did under this FEDSMILL hypothetical. IUSE offered to drop all of those pending cases against OSD and relieve it of any back pay liability for past management actions if OSD would allow one more union leader to be a full-time union rep on official time. A second element of the deal was that OSD give the union some, but not all the awards data it is entitled to under the law and which the union gets from other agencies whose employees it represent. It would not even be as much as what OSD releases to private web sites. Moreover, OSD would only give the union data for the current year and next year, nothing before that. After that, OSD retained the right to withhold the data and force the union to begin its litigation all over again. Finally, the union hopes that if it relieves management of all its liabilities for years of illegal activity that management will agree to treat the union better.
The full-time release probably cost the agency about $175,000 in lost wages; dropping the litigation potentially cost employees several million dollars in back pay. It also costs employees the opportunity to require each of the 24 OSD divisions to use the same awards program. They would have to wait a few more years before a GS-14 in one division rated 3.00 gets the same award amount that a GS-14 employee rated 3.00 in another division.
Those are the facts for you to consider. While at this point in most FEDSMILL postings we normally provide our own views of what the union should do, we are holding back this time and asking for your opinion. Send a response by using the box below or send it via e-mail to email@example.com
Here are some questions to consider:
- Is it ethical to trade a very large but still only potential back pay cases that would enrich members and non-members alike for extra official time for a union leader?
- Would it be a violation of 5 USC 7116(b), which prohibits discriminating between members and non-members, by dropping grievances that provide non-members back pay so that a single union member could benefit?
- Would making this trade be so arbitrary, unreasonable, reckless, and unconnected to the facts as to violate the union’s duty of fair representation, e.g., be grossly negligent representation?
- Does it make a difference that most of the grievance claims seek to enforce statutory rights, not just negotiated contract provisions? For example, if African-American and Asian employees were discriminated against when awards were passed out—and the union considered the evidence serious enough to invoke arbitration in the first place, can the union drop that case for reasons unrelated to the merits of the case?