GRIEVANCE QUIZ: ALMOST PERFECT EXCEPT FOR …
Below is a hypothetical grievance inspired by one that actually went to arbitration and FLRA. The union lost on a technicality in both forums. See if you can spot the error before we reveal the answer.
TO: Station 12 Director
The agency has had a practice of allowing up to 2/3’s of the Customer Service Reps to take annual leave on the day before and day after a federal holiday. This practice has been in place for six years beginning with a memo you issued to your managers in 2012. However, a week ago the agency announced it would no longer allow more than 1/3 of the employees to take annual leave before or after next month’s July 4th holiday or subsequent federal holidays. When our union Chief Steward sent your Labor Relations Officer an e-mail asking “to negotiate over the number of employees who will be allowed to use leave around holidays” and that the agency delay implementing the change until those negotiations are concluded, the agency refused and implemented the change.
This violates Article 4 of our collective bargaining agreement which requires advance notice of and an opportunity to bargain over changes. It also violates 5 USC 7116(a)(1 and 5), the statutory obligation to bargain.
The union asks that the agency reinstitute the 2/3s practice and make whole any harmed employees, including the grant of attorney fees if back pay is awarded.
/s/ Sammy Gompers, Steward
ANSWER: There is a lot to like about this grievance. For example, the union charged the agency with violating the contract obligation to bargain as well as the statute. That will make it harder for the two Trump appointees to rip the guts out of any favorable decision the union wins.
We also applaud the union asking that employees be made whole. Too many unions have filed grievances in situations like this and just asked for a cease and desist order or that the practice be restored because they assume that no one lost leave or pay. In all likelihood, employees did not lose any compensation; they just lost the opportunity to take leave. But just because any financial harm is not obvious does not mean the union should give up on the issue. Asking an arbitrator to order that harmed employees be made whole will permit the union to survey members after the arbitration decision to see if anyone is entitled to back pay. That, in turn, could open the door to attorney fees for the union.
Got the error yet? Well, here it is. The arbitrator found that the agency had the statutory right to make such a change in practice or policy unless the union properly invoked negotiations. Given that it is a 7106 management right to assign work, the union could only ask to bargain over the “impact and implementation” of that decision. By asking to bargain over the substance of the decision about how many will be assigned work that day, the union failed to properly invoke bargaining. Put another way, the agency had no obligation to bargain over that issue. FLRA saw it the same way.
The lesson learned here is to be sensitive to whether the change an agency proposes is an exercise of a management right or substantively negotiable. Perhaps the safest path is to demand to “bargain over all legally appropriate matters” before any change is implemented. That gets the union the right to bargain and postpone the change without having to submit proposals. It is also wise when the union is not sure whether bargaining can reach the substance of the issue or just the I&I aspects, to submit proposals that go to both. Below is an example of such a proposal.
Section 1- The agency will continue the practice/policy of allowing up to 2/3s of unit employees to take annual leave the work day before or after a federal holiday until the conclusion of any renegotiation of the current term agreement.
Section 2 – Should the agency have the statutory right to change the 2/3’s practice/policy before that time, it will give employees at least 30 days advance notice before the holiday and consider requests from individual employees who would be denied leave due to the change for an exception if the employee can show that he/she has made financial commitments that will now be lost or wasted in whole or part due to the change, e.g., a cruise or hotel reservation.
- Employees who are entitled to this consideration will be given a right to make an oral reply to the manager or designee and will receive a written response showing the proposal was seriously considered. Both will be accomplished before the change is made.
- If more employees ask for exceptions than can be granted, the limited exceptions will be granted to those equally qualified employees who stand to lose or waste the most money.
- The agency will permit employees entitled to this consideration to swap their assigned work with equally qualified employees who have been approved for leave. Swaps can be made up until the end of the shift the day before the leave is to begin. Notice can be served on the manager up until that time of the swap and the basis of any denial must be explained in writing within 24 hours of the request.
Section 1 of the above proposal goes to the substance, but it does not bar the employer from exercising any statutory right it may have, e.g., to deal with an emergency, to promote the necessary functioning of the agency, to respond to a government-wide regulation, etc. Moreover, even if the agency argues that Section 1 does excessively interfere with a management right, Section 2 of the proposal is an I&I proposal that anticipates such a situation. The agency can declare Section 1 non-negotiable, but it still must delay implementing the change until it concludes I&I bargaining. And, yes, a lot more I&I issues could be added to encourage the agency to rethink its proposed change “voluntarily.” Check out this post for I&I ideas.