A “PARTICULARIZED NEED” BARGAINING TABLE TIP

See if you can figure out how the following situation could have been better handled by both parties—and the FLRA.  The union filed a grievance alleging the agency failed to pay unit employees for overtime hours they worked.  It simultaneously also filed an information request for time card records needed to help it proves its overtime allegation.  When the agency denied the information request, the union filed another grievance over that and took that case to arbitration.  The arbitrator had to issue two decisions and in the second the union “kind of” won.  However, FLRA overturned the arbitrator, ruled against the union, and now the parties go back to the beginning to reactivate the first grievance filed in 2012 claiming back pay to 2006.                Let’s begin with the damage done so far.  First, the union and management have had to pay for two arbitration decisions and nothing about the original grievance claim is resolved yet.  Second, it is now two years after the original grievance was filed, which likely means that if the agency did improperly deny overtime pay it is now likely liable for another two years of back pay.  Third, the employees are still waiting for the money they believed they are owed—and likely not too happy with management, which means it is a morale problem. Fourth, if the union ultimately wins back pay, management will likely have to track down retirees and even estate executors of any employees who have passed away in the interim. Oy Vey!

Here is how this all this could have been avoided.  The contract grievance procedure could have been written to provide that whenever the union requests information in connection with a grievance and that information is denied, the information denial issue will be joined to the original grievance and addressed in a single arbitration over the alleged violation as well as the denied information.  While some agency LR tacticians may prefer to force the union to file multiple cases and delay the resolution of the original case for years, not a single taxpayer should.  After all, taxpayers are the ones footing the bill for the litigation carnival bifurcation of cases creates and our bill potentially gets even bigger with every day the ultimate decision is delayed.  If an agency did something wrong, it is almost always better for the taxpayer to deal with it quickly, distribute the back pay, stop the accrual of interest and the escalating attorney fees, etc.

Had the union been able to join the information denial with the original grievance claim, it could have gone to the arbitrator merely laying out the theory of the alleged overtime violation, e.g., perhaps the agency violated 5 USC 6101 by improperly changing shifts.  It could have presented the evidence it did have, which we will assume it had at least for several employees, and asked the arbitrator to extend any back pay remedy to anyone found to have suffered the same violation.  That would have permitted it to further ask the arbitrator, should he/she sustain the grievance, to order the agency to produce the records needed to identify everyone harmed and the amount of the back pay owed.  The arbitrator could have done that as part of his/her very broad power to impose a remedy and particularized need never would have entered into the analysis.  Perhaps the agency could have appealed to FLRA if it lost before the arbitrator, but without a ULP allegation involved, the case would have ended with the FLRA rather than giving the agency the chance to further appeal to the courts to delay resolution because a ULP allegation has been made.

Here is a second bargaining table tip for the union that likely could have avoided FLRA reversing the partial victory the second arbitration decision gave it.  Had the contract contained language giving the union access to information separate and apart from the statutory particularized need criteria, the arbitrator could have based his decision on that contract language and made it almost impossible for FLRA to reverse that, even if the decision did not meet the statutory particularized need standards.  For example, the contract could have said something like either of the following:

• Once the union files a grievance, the agency will provide any information reasonable and necessary to decide the merits of the grievance or scope of the remedy.
• Once a grievance proceeds to arbitration the agency will provide any information reasonably related to and necessary for resolution of the grievance claims.

Either would have given the arbitrator the power to enforce a contract right to the information without worrying about the convoluted particularized need criteria interfering.

There are more subtle ways to avoid the delay that seems to come with any mention of the particularized need concept.  It is a horrible concept for practitioners to enforce and  appears to merely serve the desires of those labor lawyers (and judges) who dwell on such weighty questions as how many angels could fit atop the head of a pin if management provided the pin and half of them stood on one leg.

We wish this example was a hypothetical one, but one need only read the newest FLRA decision to see that it is all too real. (SSA, 67 FLRA 534 (2014))