UNION NEGOTIATOR’S QUIZ
Imagine you are in this situation. You are in term negotiations and the agency refused to bargain over three provisions that have been in the agreement for more than a decade. It claims they are suddenly non-negotiable. When the larger dispute went to the Panel for resolution, in line with its anti-union approach to life no matter how much it hurt employees, the Panel ruled that it would resolve all the disputes except for the ones the agency alleged to be non-negotiable. When the Panel spit out a final decision, the agency implemented it as soon as possible. As for the three provisions the Panel did not address, the agency simply replaced the existing agreement language with its own last proposal. One of the proposals provided that employees could choose the shift they worked on by seniority, e.g., the 7 a.m. to 3:30 pm shift or the 9:00 a.m. to 5:30 p.m. shift. What does the union do now if it believes that existing FLRA case removes any doubt about the negotiability of the proposals?
The first rule on plotting a litigation strategy while the Great Orange Cloud hangs over the nation, is to avoid FLRA. And if you can’t avoid it, minimize its anti-union prejudice by making the final decision reviewable by the courts. In this case, that would mean the union should file an Unfair Labor Practice grievance charging the agency with violating 7116(a)(1) & (5). Although the union had the option of filing a negotiability appeal during the process, that would have done nothing to remedy any harm done when the agency substituted its final proposals for the existing agreement terms. Negotiability appeals do not carry make whole remedies.
The second rule of litigation during these “carroty” times is to seek the most aggressive remedy possible. Don’t settle for a simple cease and desist order or even a bargaining order. Among the remedies you want most is an order returning the working conditions to the status quo provision of the prior agreement while the parties bargain from the beginning on any and all proposals that the arbitrator decides were negotiable. For example, if the agency moved 15 employees to different shifts than they were entitled to receive under the old seniority rule, get an order that they be returned to their prior shifts.
On top of that ask for back pay for all the hours employees worked that they would not have worked had the agency not violated the law. For example, if someone was working the 9 to 5:30 shift and got moved to the 7 to 3:30 schedule, you should argue that they should not only be paid for the time from 7 a.m. to 9 a.m. when they would not have worked, but also that those hours should be paid at an overtime rate. Let’s say a year went by between the agency’s unilateral changes and the agency finally giving up the fight. If 15 people worked on improperly assigned shifts for a year, they should be entitled to approximately 7,800 hours of back pay at an overtime rate. If they each earned $25 an hour that would be a little under $300,000 in back pay for those people before interest and other perks where considered. And, of course, there are attorney fees to consider.
But it is not over yet. Suppose some people had to take leave to tend to some personal business that they would not have had to take if they had remained on their prior schedule. Well, you want their leave restored. And, suppose someone resigned or took a down grade because of being assigned to work hours they could not work. Well, that is a back pay issue as well. Ditto if the shift to which assigned had an impact on how much overtime was available to the employee.
And it is still not over. In egregious cases of bad faith bargaining, FLRA has required the agency official responsible to call all the employees together and apologize for violating the law. Check out AFGE, 55 FLRA 704 (1999).
Finally, FLRA has also allowed arbitrators and ALJs to order that the facts of the case be referred to the U.S. Special Counsel to see if a prohibited personnel practice was committed. Check out the same AFGE case as above.
P.S. We are wondering whether there might even be a tougher penalty. While we argue above that the terms of the prior contract should be reinstated while the parties renegotiate, that dooms the union to another trip back to the sadists at the Panel. Why could not the union argue that by refusing to bargain over the three fully negotiable provisions in the old agreement the agency forfeited it right to reopen those provisions during the most recent round of negotiations. Therefore it must reinstate the prior contract terms and live with them until the agreement is renegotiate a few years down the road. After all, case law shows that if a party failed to properly invoke bargaining it lost the right to bargain until the next open window. Is not refusing to bargain an error of equal weight deserving of the same kind of forfeiture?