NTEU GRIEVANCE DECISION HIGHLIGHTS DRAFTING ERROR
See if you can spot the error in this case. Six employees were improperly denied annual leave requests. The union filed individual grievances for each of them and at arbitration consolidated them under the following issue, “Did the Agency violate Article 37 of the [parties’ agreement] when it denied ad hoc leave to . . . one or more of the grievants? If so, what shall the remedy be?” The arbitrator agreed that a local past practice had been violated and directed the Agency to grant ad hoc leave requests “for leave slots appearing on the annual leave schedule” and to cease denying ad hoc leave requests based on “[o]vertime costs.” The Arbitrator further stated that the award was “intended to apply to the grievants . . . as well as other [officers] similarly situated.” What is wrong with this case based just on those facts?The short answer is that the arbitrator exceeded his authority. More specifically, he crossed the line when he ordered the agency to apply the remedy not just to the six grievants, but also to “other officers similarly situated.” FLRA reminded the parties that “arbitrators exceed their authority, as relevant here, when they resolve an issue not submitted to arbitration or award relief to those not encompassed within the grievance. In this regard, if a grievance is limited to a particular grievant, then the remedy must be similarly limited.” This case highlights why it is important to draft grievances broadly. Had the union filed individual grievances for the six employees and/or an institutional grievance on behalf of all similarly situated and harmed employees the arbitrator could have given everyone a remedy, rather than just these six employees. (See DHS, CBP and NTEU, 69 FLRA 224 (2016))
On appeal NTEU tried to avoid losing the issue by telling FLRA that “…the award does not provide a remedy to individuals other than the grievants.” However, FLRA pointed out that in the legal papers NTEU filed it “alleges at another point that the award applies to ‘more than just the grievants in the case.’” The Authority found that when a union makes such conflicting statements it will not accept its defense. It overturned the award.
The drafting mistake, whether it is the union’s or arbitrator’s, did little harm in this case because the arbitrator only ordered the agency to respect the annual leave assignment practice in the future and not manipulate assignments to avoid overtime. There was no back pay claim. But, according to the record, the agency admitted it made the change to avoid assigning someone overtime. If the original grievance identified the employees who lost overtime as among the grievants, the union might have generated some back pay, interest and another big chunk of attorney fees for the union.
One of the things union reps can bet on is that when they file grievances someone in the LR shop makes a quick assessment of the financial liability the grievance creates for the agency. (Although given CBP’s track record in grievances, they alone may not do that.) If it is sizeable, the rational agency works harder to solve the grievance, e.g., pay $.50 on the dollar owed. If there is no financial harm alleged in the grievance, agencies are free to string out the case through arbitration, force the union to spend a few thousand dues dollars (and maybe a hundred staff hours) for a decision, and wait another year and a half to get a favorable ruling. In the meantime, the agency gets to continue to violate the rule without any financial consequences. So, unions would be wise to follow the immortal words of society’s other Deep Throat, “Follow the money” when drafting grievances.
In an ideal world, unions would have on-line grievance forms that prompt users to think of things like grieving on behalf of all harmed employees and finding some back pay potential. If you are not a citizen of that world, you might want to check one of our earliest series of postings.