HOW TO AVOID THE “EXCESSIVE INTERFERENCE LITE” TRAP IN ARBITRATION
Now that Trump’s two operatives on the FLRA have made clear their intention to weaken unions and collective bargaining, unions would be wise to counter the pending onslaught of precedent-trashing decisions from these two. One way they can do that is to write grievances to undermine the impact of the Kiko-Abbott scheme to overturn more arbitration decisions. So, we have drafted a model grievance below that addresses the hypothetical situation of an agency deciding to deviate from the clear language of an agreement clause dealing with the equitable distribution of overtime assignments. The draft is annotated with footnotes/endnotes that explain why certain passages are included. Given that FEDSMILL does not provide legal advice, union leaders should check with their attorneys before using this model to ensure that it conforms to their own contract and to see if the attorney has suggested improvements. However, if the attorney tell you that detailed grievances like this alleging contract and statutory violations is not needed at all, get a second opinion. Given that Kiko and Abbott appear to be primarily motivated by politics and anti-union animus, the best way unions have to push back is to rely on the subtle counter-tactics embedded in the statutory scheme that only a seasoned actual practitioner of labor-relations, who respects the value of collective bargaining, is likely to know. For our part we will try to outline how to respond to Kiko-Abbott decisions as they come spitting out.
From: Chief Steward
The union is charging the agency with violating Article, 12, Section 3 of the collective bargaining agreement which reads as follows:
Bargaining unit overtime work shall be distributed equitably over each calendar quarter among qualified employees who volunteer to be included in overtime that quarter.
Up until last Monday, the agency did not force employees to work overtime who had not volunteered, unless there were no volunteers available. Then, suddenly the agency began requiring all employees, whether they volunteered or not and whether they were qualified to work at the grade level of the available overtime, to take overtime assignments. This was done in violation of the agreement.
Irrespective of whether the Agency actions violate the agreement, the union is also charging the Agency with unilaterally changing working conditions without providing the union advance notice and an opportunity to bargain.[i] That violates Article 40, Section 1 which reads as follows:
The Agency will notify the union in advanced of making changes in personnel policies, practices or working conditions and delay implementation until any bargaining is complete.
It also violates 5 USC 7116(a)(1) and (5) which impose the statutory obligation to notify and bargain,[ii] as well as prohibiting repudiation of an agreement.[iii]
As a remedy the union requests the following:
- The Agency cease and desist from assigning unit overtime to anyone other than qualified unit volunteers—unless none are available.
- The Agency calculate how many unit overtime hours were assigned to other than qualified volunteers since last Monday and retroactively distribute those hours among those who had volunteered along with back pay and interest.
- Should it be determined, for any reason, that Article 12, Section 3 must be interpreted and/or applied to allow the agency to assign unit overtime to other than qualified unit volunteers, the agency nonetheless reinstitute the practice of assigning it only to qualified unit volunteers, to the full extent of its legal discretion,[iv]until it serves specific notice[v] on the union of what its new interpretation, application, and/or replacement of that clause will be and completes any requested negotiations. Adversely impacted employees are to be made whole for any harm suffered since the change was made, including back pay and interest.[vi]
- If an arbitrator sustains any or all portions of this grievance and imposes a remedy, but the FLRA or court overturns any portion of the award, the grievance will be returned to the arbitrator at the union’s option to reconsider his/her decision in light of the Authority’s decision.[vii] The arbitrator will retain jurisdiction for a period of up to 90 days after the FLRA decision during which the union must notify him/her that it wishes him/her to reconsider the award.[viii] Moreover, the Agency will pay all costs of the arbitrator’s reconsideration of the original grievance.[ix]
- Permit the union to demand to renegotiate the entire term contract article containing any clause which the agency, FLRA or courts find to be unenforceable.[x]
- Pay appropriate attorney fees and costs.
- Implement any other remedy deemed appropriate.[xi]
Please contact the undersigned or a designee to schedule a grievance meeting.
[i] Most contracts contain language obligating the agency to negotiate before making mid-term changes. Although they generally mirror the statutory obligation, the FLRA has held that agencies cannot raise certain defenses to the obligation to bargain if it is based on contract language. For example, the agency cannot raise a “covered-by” defense to a contract obligation to bargain. This will not protect the unions from the new Kiko-Abbott folly of an “excessive interference lite” deficiency, but it could help them block agencies from raising the covered-by and similar defenses.
[ii] This is the most critical passage to add to a traditional contract grievance to protect against the Kiko-Abbott crusade against collective bargaining. Even if they rule that the arbitrator’s award excessively interferes with management rights, the agency can still be obligated to continue the practice established by the contract clause until it notifies the union that it wants to replace the clause and concludes that bargaining. In short, the harmed employees will get the money the arbitrator would typically award in a simple contract grievance.
[iii] Repudiation of an agreement is an additional basis for finding the agency violated law, not just the contract, making it harder for FLRA to arbitrarily overturn an arbitrator’s decision.
[iv] The agency can only be obligated to continue a practice established by a contract clause if the practice is something the agency could have implemented unilaterally. Agencies have the ability to unilaterally abandon practices that violate laws other than the 7106 management rights provisions and that violate government-wide regulations in effect before the implementation date of the current contract. If the agency is permitted to unilaterally change a practice, the union almost always will have the right to negotiate post-implementation of the abandonment of the practice over I&I. It also will have the right to negotiate pre-implementation over a replacement practice the agency wants to implement.
[v] The law requires that the agencies serve “specific notice” of a change, not just make a passing mention of it or assume that the union knows what it is doing from watching the new practice role out. This will clear the path to enforce the four elements of a specific notice in case the agency tries to argue the union had general constructive notice, namely, notice of the nature, scope, and timing of the change as well as what unit employees are likely to lose.
[vi] Too often a union only asks in the grievance that the agency cease and desist from violating the agreement. Perhaps this is because they file in the first few weeks of the change or violation before they can see the actual impact on employees. Consequently, we recommend a union ALWAYS ask that harmed employees be made whole. If they do, they will be able to get employees their just compensation even if the facts proving employees lost money only come out in or after the arbitration hearing.
[vii] This is another protective measure to undermine the Kiko-Abbott predisposition to not remand cases to arbitrators to fix or reconsider technically defective remedies. Asking for this would enable an arbitrator to decide that s/he is going to retain jurisdiction until appeals of the decision are over.
[viii] This empowers the arbitrator to retain jurisdictions until after the deadline for the union deciding whether it is going to appeal the losing decision to a higher level or accept it and go back to the bargaining table.
[ix] Ask for this anyway even if your contract says the parties equally split all arbitration costs. You never know what you can get unless you ask.
[x] This would enable the union to expand the scope of the negotiations the agency must go through and perhaps get back some concession it made to get the clause that the agency has now declared unenforceable.
[xi] Almost every grievance should contain this request for “any other appropriate remedy.” It gives the arbitrator the authority to impose something different than the specific remedies the union requested if s/he finds those specific remedies are not appropriate. For example, if the union grievance asks for retroactive promotion as a remedy and the arbitrator does not believe that is merited, s/he could nonetheless award priority consideration if the grievance conveys broad remedial powers.
Originally posted March 26, 2018