NAMING GRIEVANTS: A SOURCE OF UNION POWER
Two members come to you, the union steward, complaining that the manager is no longer following the agreement’s provision about how to distribute overtime and they want to grieve. After they leave, you call two other union members who work in the same group and ask if they want to grieve. One says yes and the other no. You never ask the three employees of the same group that have refused to join the union. What can you do here to make the nonmembers regret their decision?
The quick answer is that you have a right to file the grievance on behalf of just the three union members who have asked you to grieve or on behalf of all harmed employees in the group. It is the union’s choice. If you file for just the three members, only they can benefit from any remedy granted whether by management or an arbitrator. If you file on behalf of the entire work group, then they can all share in any remedy you get. In other words, the union has the power to exclude the nonmembers from any corrective action just by how it drafts the grievance.
We saw this happen in a number of FLRA decisions over the years, but we are only going to touch on a few. The fundamental rule has been stated repeatedly by the Authority as follows: “The Authority has indicated that an award may be found deficient as in excess of the arbitrator’s authority when the arbitrator awards relief to employees who did not file grievances on their own behalf or who did not have the union file grievances for them.” AFGE, 15 FLRA 355 (1984) The Authority said it differently in a more recent case, “The Authority has consistently held that if a grievance is limited to a particular grievant, then the remedy must be similarly limited.” (OPIEU, 64 FLRA 535 (2010)) This rule applies whether the non-grieving employees are in the unit or not. Consequently, in the OPIEU case when only one of three people eligible for selection grieved non-selection and the arbitrator found the contract had been violated, the arbitrator could only provide a remedy to the grievant. It overturned the arbitrator’s award of back pay to the ultimate selectee even if was not the grievant. In another case an arbitrator ordered the agency to allow all smokers access to a smoking area and FLRA overturned that remedy because it applied to non-unit employees who could not benefit from a grievance that did not cover them originally. (AFGE, 35 FLGA 1259 (1990) See also NFFE, 34 FLRA 598 (1990))
However, the FLRA is not saying that the union must specifically name-identify every grievant to ensure that they are covered by the grievance. It has held that the mere fact that all affected employees were not identified by name in a grievance will not bar unnamed employees from being included in the remedy so long as they were generally defined as a group. (See AFGE, 43 FLRA 228 (1991))
Based on these and related cases it seems that the union rep in our hypothetical set of facts outlined above would be within his/her rights to decide to grieve only on behalf of those who asked to file. The nonmembers would not share in any back pay the union won. Of course, if the nonmembers asked the union to file on their behalf, the duty to fairly represent everyone would probably force the union to include them in the grievance. Or, if they filed their own grievance and asked the union to arbitrate the union would likely have to take their case to arbitration if it took the members’ case. The FLRA has not faced those facts yet. Nor has it faced a situation where the union rep asked only the members in a group of similarly harmed employees whether they wanted to be included in a grievance. But even if FLRA does rule the union cannot limit its call for potential grievants to union members, nothing stops the union rep from demanding that all potential grievants come and talk with him of her “about the grievance” before they are included.
In the meantime, union reps should make it well-known among nonmembers that they can be frozen out of a grievance victory if they do not ask the union specifically to grieve on their behalf. That gives the union just a little more power over nonmembers than they might think it has.
(Since FEDSMILL.com does not offer legal advice, we recommend that if you want to start using this technique to remind non-members why it helps to belong to the union, check with your personal legal counsel. Some may consider it too big of a risk to be the first union to force the FLRA to fill in some of the gaps in the law.)