THE RESUSCITATED “FAIR & EQUITABLE” CLAUSE

For the longest time FLRA has not let unions bargain a clause obligating agencies to apply their management rights in a “fair and equitable” manner.  But, all that changed not long ago.

Even inexperienced union negotiators know that federal managers have rights over which they can refuse to negotiate, e.g., the right to assign, hire, promote, direct, etc.  Sometimes the list looks endless and all too often management negotiators will allege there is nothing the union can do when management is exercising one of those rights.  When they do, they invariably point to the following 1992 decision:

In VAMC, Department of Memorial Affairs, Provision 8 required, among other things, that the agency distribute work “equitably” among employees within job classifications. In finding that the provision directly interfered with the agency’s right to assign work, we noted that the Authority has found terms such as “equitable” or “equitably” to have varying substantive effects. Id. at 684. We concluded that terms such as “equitable” or “equitably,” when used in proposals or provisions that govern the exercise of a management right, constitute substantive restrictions on the exercise of that right, and we stated that we would no longer follow previous decisions that held to the contrary.  NTEU, 46 FLRA 696

But all that changed not long ago when an arbitrator decided that an agency had reassigned an employee in violation of a contract clause giving employees the right “to be treated fairly and equitably in all aspects of personnel management.” AFGE, 65 FLRA 588  As a result, he ordered that management adopt the following corrective actions:

(1) the parties negotiate over the issues listed in the ground rules agreed to by the parties;

(2) the grievant maintain her current work station and not be moved without a legitimate work reason and notification to the Union;

(3) the grievant be treated fairly and not be subject to retaliation;

(4) the parties conduct “[n]egotiations over the scope of the [m]edical secretary position … for the purpose of clarifying the duties of the [m]edical secretary and establishing work expectations and boundaries[;]”

(5) the grievant “be allowed to receive training in cross development courses without any limitation due to her work assignment as [m]edical secretary[;]”

(6) the grievant receive priority consideration for future vacancies in her job series; and

(7) the Agency not arbitrarily deny a request by any qualified secretary willing to exchange positions with the grievant. Id. at 18-19.

The agency filed exceptions claiming that the arbitrator could not enforce the fair and equitable obligation because it violated the agency’s statutory management rights.

A contract provision constitutes an arrangement if the provision, as interpreted and applied by an arbitrator, ameliorates or mitigates adverse effects that flow from management’s exercise of its management rights. . . .We find that Article 6, as interpreted and applied by the Arbitrator, constitutes an arrangement. An award abrogates the exercise of a management right if the award precludes the agency from exercising the right. . . .The Arbitrator’s award does not, as the Agency alleges, preclude it from reassigning employees, but, rather, only precludes the Agency from conducting reassignments in an unfair manner. . . .We find that Article 6, as enforced by the Arbitrator, does not abrogate management’s right to assign work. . . .Accordingly, we find that Article 6, as interpreted by the Arbitrator, was properly negotiated pursuant to § 7106(b). AFGE, 65 FLRA 588

Consequently, unions would be wise to include the fair and equitable obligation among their I&I or appropriate arrangement bargaining demands.  It not only gives the union wide latitude to challenge any exercise of a management right, but it should encourage managers to negotiate more detailed provisions. Arbitrators will generally not apply a general or vague contract standard if there is a specific contract clause on point.  For example, a specific clause providing that, “reassignments will be given to the most senior qualified volunteer” would normally stop the union from challenging management’s failure to reassign the employee who has been acting the longest in the vacant position being filled by reassignment.  While that may be more fair and equitable, the specific seniority rule takes precedence.