AAGGGHHHH! THIS MISTAKE HURTS!
We have written about this before, yet still double over with pain every time we see this blunder. Although we are not going to identify the union or even proclaim that it was the union rather than FLRA that made the mistake, we will say that the latest incident popped up in an FLRA ALJ decision. The union accused the agency of unilaterally changing the duties of some unit positions and ratcheting up production standards, making it harder for employees to earn high annual appraisal scores. It was a slam dunk case for the union and FLRA—as opposed to those workload cases where an employee’s burden increases cyclically or due to factors outside management’s control. But here is how it mishandled.
The agency announced its decision to make the change on January 11, 2016 saying training would begin the following week. The union filed a ULP charge on January 12, the FLRA Regional Director issued a complaint on May 31, 2016, the hearing was held August 18, and the ALJ decision issued March 2017. He ordered the agency to stop implementing the change, circulate via e-mail a notice to all unit employees that it had violated the law, and bargain with the union before it reinstituted the change. He did not order the agency do anything with the evaluations it had given employees after it changed the job so substantially. The Judge merely noted at the time of the hearing the first round of appraisals under the new work standards had not been issued. That is not an irrational explanation for omitting any remedy addressing impacted appraisals, but it is not a good one. Let’s call it “barely not irrational.” Based on the record it was more than reasonably foreseeable that employee appraisals were going to suffer due to an increased number of errors, missed production markers, etc.
What happens when those appraisals come out, scores are lowered, performance awards are lost due to lowered scores and promotions are delayed or denied due to those scores? Is the union supposed to file an individual grievance for each harmed employee? Is FLRA supposed to issue a new complaint? Will it be up to FSIP to order the appraisals adjusted pursuant to the bargaining? Ideally, the ALJ would have ordered that any adverse impact on the next round of appraisals be undone and corrected. That would have enabled the FLRA to oversee any appraisal corrective action in the compliance stage. However, the odds of an ALJ or arbitrator failing to “reasonably foresee” and correct harm goes sky high when neither the union nor FLRA specifically ask for the remedy. That appears to be the case here and that is a big mistake.
Whether filing a grievance or ULP charge in response to a unilateral work-related change unions should always consider what is going to happen to the employees’ appraisals down the road and ask for a remedy, e.g., a reevaluation of all employees against the pre-change standards and conditions along with an appropriate adjustment in any personnel actions based in whole or in part on those appraisal scores. In a favorite case of ours the union asked for and got an order from an arbitrator that a joint committee be appointed to review all the appraisals issued in the last two years (there were thousands) for evidence of adverse impact from a similar unilateral change in performance standards and conditions. When impact was found, the agency was ordered to reevaluate the employee. Furthermore, where scores were changed performance awards were to adjusted with back pay if needed and priority considerations granted where promotion decisions were infected by incorrect appraisal scores.
When the union and/or FLRA only asks for a cease and desist order, a posting and some bargaining it gives the agency a free pass to avoid the most costly and painful remedy, namely redoing appraisals and actions based on them. Without that hanging over its head there is little motivation for an agency to settle early nor to avoid committing the same violation in the future. Moreover, harmed employees lose their best chance to undo the pain quickly and easily.
We have seen this error not just with performance-related claims, but also when agencies adjust work schedules unilaterally. For example, if an agency unilaterally forces employees on a 5/4/9 schedule to change their regular days off, unions should request a remedy that asks for retroactive pay to cover any leave the employee might not otherwise have had to take or overtime the employee missed out on. Don’t just ask for a return to the status quo ante; that is not a make-whole remedy. There is no harm from pursuing very aggressive remedies that involve all potential harm that might occur after a charge/grievance is filed. In fact, pursuing a complete and burdensome remedy is one of those things that distinguishs great union reps from average ones.