ARBITRATING EQUAL PAY ACT DISPUTES–EASY-PEASY
What can a Hispanic woman do if she is not getting the same salary as a man performing nearly identical duties? She can file a complaint with the EEOC claiming a violation of the Equal Pay Act (EPA), but she cannot file the same allegations in the grievance-arbitration forum because FLRA said so in DOL and AFGE, Local 12, 63 FLRA 216 (2009). It claims that because the grievance would seek to have the person reclassified to a higher grade that violates the statutory prohibition against grieving classification matters. FLRA prefers to ignore the more basic nature of the grievance, i.e., a discrimination claim like any other that can be grieved and arbitrated. Moreover, even if an arbitrator ordered a person’s job upgraded law still permits the agency to immediately downgrade the job so long as it follows proper procedures. There is nothing “permanent” about any upgrade. But how can unions ever get this changed if FLRA arbitration exception decisions on what is grievable are not reviewable in court? EASY-PEASY!
If a union makes a term proposal that Equal Pay Act discrimination allegations are grievable and arbitrable, the agency would have no choice but to declare the issue non-negotiable and trigger a negotiability dispute. There is little doubt given their political cult’s disgust for civil and union rights that Abbott and Kiko would proclaim the issue is not grievable. But that decision can be appealed to the U.S. Courts. While the courts are being flood with jurists from the same defective mold as Abbott and Kiko, there is a better chance in a court of winning than before the current FLRA.
In the meantime, the agency would have rendered the term negotiations piecemeal discussions because of its refusal to discuss as central a collective bargaining issue as fighting statutory discrimination to achieve back pay. That undercuts the agency’s bargaining power at the current time.
Even if it loses at court, unions gain. They will be able to go to Congress asking for the act to be amended to exclude EPA claims from the prohibition against classification grievances.
If you want to see how a fed was able to us the EPA to get her job retroactively upgraded for the time she was temporarily assigned duties after a colleague retired, check out Glenna D. v. Heather Wilson, Sec’t’y of the Air Force, EEOC No. 0720180026 (2019).
