NLRB ORDERS MAKE WHOLE REMEDY FOR WEINGARTEN VIOLATION, BUT WILL FLRA?
What’s the remedy when an employee is terminated for refusing to participate in a disciplinary investigation of his/her behavior, despite the fact that the employer refused to give the employee a reasonable opportunity to get a union rep involved? In the federal sector FLRA has rejected a “make whole” remedy reinstating the employee or giving back pay because it claims it needs to balance the government’s need to be efficient with the employee’s statutory rights. Check out AFGE, 55 FLRA 1250 (2000) for the Authority’s rationale. However, the NLRB has just decided that a make whole remedy is appropriate not just when management refuses to let the employee have a union rep, but also when it fails to give the employee reasonable time to get one. Check out the Labor Relations Today story describing the Board’s decision. It will be interesting to see if the Authority follows the Board because we at FEDSMILL have no clue as to why it interferes with agency efficiency to reinstate an employee when he is terminated due to an agency’s illegal unilateral change in working conditions, but not when his other statutory rights are violated. Given the Board’s decision, union reps should be demanding a full “make whole” remedy any time the so-called Weingarten right is violated–at least until we see if the Authority follows or rejects the Board’s thinking.