QUIZ: WHERE IN THE WORLD IS THE REMEDY?
On April 24, 2017 FLRA decided a case where the arbitrator found that the agency had violated the contract when it refused to approve full-time telework for an employee. However, because the employee retired shortly after the arbitration hearing, the arbitrator decided she could not give the employee an effective remedy. Consequently, she ordered the agency to “review future telework requests consistent with the parties’ collective‑bargaining agreement.” The agency filed exceptions claiming that the arbitrator exceeded her authority when she imposed a remedy that benefits anyone other than the named grievant. FLRA agreed. However, the case presents a “teaching moment.” What remedy should the union have requested?
Ignore the fact that the employee retired soon after the arbitration hearing. The union was probably as surprised as management that the employee did that and effectively rendered their case moot, dead, etc. When all a union asks for is a prospective remedy, e.g., a cease and desist order or command that the agency follow the contact, the grievant’s retirement reduces the arbitration to an academic exercise or practice case.
Focus instead on the fact that the employee was harmed every day he remained at the agency after it initially denied his telework request. If you are thinking that the union should have asked that the grievant be repaid his commuting expenses for the days he should have been allowed to work from home, DON’T. Commuting expenses are almost never reimbursable under the Back Pay Act.
Our suggestion is that the union should have asked that the employee be reimbursed for any leave he took that he might not have had to take if the agency had promptly approved his telework request. For example, maybe he left work two hours early one day to make a 5 PM grandparent-teacher conference. In all likelihood he would not have needed two hours leave or any leave if he had been allowed to telework. In other words, but for the improper denial of telework the agency owes him two hours of retroactive leave.
While the total amount of cash the employee would get for two hours of leave would be a small sum, as back pay it entitles the union to claim attorney fee reimbursement for the hearing. That tab could run into the thousands of dollars and make the agency actually begin to regret improperly applying the agreement. (There is also the potential argument that the employee was forced to retire because he was denied full-time telework. If the union can prove that “constructive discharge,” it could argue that the agency must reinstate the employee with full back pay, interest, TSP contributions, leave earnings, etc. He could come back for a pay period and retire again.)
This goes back to a point we have made often. Think creatively about remedies focusing particularly on finding a way to claim back pay for the grievant. For example, if an employee is improperly denied a 5/4/9 CWS schedule don’t just ask the arbitrator to order the agency to approve it going forward. Also ask that the employee be given overtime pay for every day she worked under the normal 8 hour a day, ten days a pay period schedule that she would not have had to work if she had a day off each week. Typically, that would be all eight hours on the tenth day of the pay period. Another target should be leave she would not have had to take if she had one weekday a pay period to herself.
While it is best to request a detailed remedy when the grievance is first submitted, most contracts will allow the arbitrator to impose any remedy he/she can sustain under law so long as the grievance (and/or arbitration issue statement) asked that the employee be given “all appropriate remedies.” If stewards are required to put that phrase in the remedy section of any grievance (or it is printed on the union’s standard grievance form) the union can adjust as the employee’s situation and harm evolve as the grievance moves through the process.