UNION WINS ARBITRATION FOR NON-UNIT EMPLOYEE
That’s right; you are not seeing things. The union filed a grievance on behalf of a non-unit temporarily assigned to unit work. When the agency did not pay the employee what it was required under the contract to compensate a unit employee, the union grieved. We can’t blame them. After all, if the agency can slot non-unit people into to unit jobs to get them done more cheaply, that is something unions are in business to take care of. Congrats to the United Power Trades Organization for reminding everyone of this rule. He agency filed exceptions to the arbitrator’s decision alleging that…
the Arbitrator “implicitly” determined the bargaining-unit status of the grievant when she found that he was entitled to backpay for performing warehouseman duties. According to the Agency, only the Authority – not arbitrators – may resolve questions concerning whether certain employees are included in a certified bargaining unit. (That is the general rule)
The Authority tossed that argument aside saying that it is undisputed that the grievant’s normal position is outside the unit that the Union represents, and that the warehouseman position is within that unit. And the Arbitrator addressed only whether the Agency assigned the grievant warehouseman duties on a temporary basis. It was not necessary for the Arbitrator to, and she did not, determine the bargaining-unit status of any position. So, it rejected this exception.
Management also argued that “[s]hould the Authority consider the [grievant’s] bargaining[-]unit status,” the Authority must apply its test for determining whether a temporary employee is appropriately included in an existing bargaining unit. Under § 7112(a) of the Statute, the Authority may determine a bargaining unit to be appropriate only if, as relevant here, the determination will “ensure a clear and identifiable community of interest among the employees in the unit.” And to have a community of interest with unit employees, a temporary employee must have a “reasonable expectation of continued employment in the unit.” According to the Agency, the grievant’s short-term assignment to perform warehouseman duties does not meet this test. Further, the Agency claims that, even if the grievant shares a community of interest with the bargaining unit, the grievant did not meet the minimum qualifications of the warehouseman position.
The Authority wrote that its standards for including temporary employees in a unit do not apply here. The employee was “temporarily” in the job for three weeks. Check out Department of the Army, DOD and UPTO, 69 FLRA 226 (2016)