The FLRA is obligated to impose remedies that make employees whole for harm suffered due to contract violations or ULPs as well as impose remedies that discourage continued violations. It recently reminded everyone what employees and their union reps must prove to force management to compensate employees for lost overtime.

In AFGE, Local 1938, 66 FLRA No. 137 (June 2012) the Authority upheld an arbitrator’s decision ordering the Bureau of Prisons to distribute $200,000 in retroactive overtime pay among a group of employees who were denied a fair and equitable share of the overtime distributed. The Authority’s explained that “. . . even if employees did not actually work overtime, they may receive backpay” if a contract violation resulted in the failure to work overtime. It further said that the causal connection between the contract violation and the loss of pay may be “implicit” from the record and the award.

In this case, the Agency argued that there was neither evidence that the employees awarded overtime pay were actually “ready, willing[,] and able” to work the overtime assignments, nor any indication of how much overtime they actually would have worked. Of course, that could be the case anytime management denies employees the right to bid on or otherwise be considered for overtime they are qualified to work. Management makes this argument when it is trying to get off the hook without paying a dime despite contract violations. The union was in a particularly difficult position in AFGE case because management had destroyed the office records that would have shown that.

To its credit, the union came to the hearing with evidence it had collected that the arbitrator found persuasive enough to identify who would have “been available for [overtime] work assignment[s] and be[en] paid for the time[s] that the [overtime] records [were] not available.”

The FLRA upheld the arbitrator’s finding that the union met the Authority’s two-part criteria for back pay.  First, the union demonstrated that the employee was affected by an unjustified and unwarranted personnel action and second, did the personnel action result in the withdrawal or the reduction of an employee’s pay. Often, employees, managers, and union reps do not realize that merely being denied contractually required consideration for overtime, an allowance, or a pay differential is considered a “withdrawal or reduction.” But this case once again affirms that it is.

So, if your contract or even the past practice requires that overtime, allowance or pay differentials be distributed in a certain manner and management ignores the requirement, union members denied that consideration can grieve to get the money they should have received.  It is irrelevant that management may have already paid other employees overtime pay to do the work.

Unions should spread the word among their members that when someone else gets paid for doing something the employee should have been considered for, the harmed employee can get the same amount of money without ever doing that work.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
This entry was posted in Back Pay, Grievance/Arbitration, Pay/Grades/Steps and tagged , , . Bookmark the permalink.

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