QUIZ: WHAT IS WRONG WITH UNION REPS?

Please excuse our frustration, but it very painful to read about cases that unions lost but easily could have won if they drafted the grievance correctly. Union reps need to protect themselves from the twin Trumpian troglodytes at FLRA who will overturn any union arbitration victory they can.  Even though we have written about this before several times, apparently the message is not getting through to everyone.  So, we are going to try it as a quiz.  The facts of the case are as follows and the correct answer is at the end of this post.

THE FACTS:  In 2004 the agency issued a formal policy identifying a few dozen positions as mission-critical for safety purposes and that it would only leave vacant in rare circumstances. In the next round of negotiations, the parties agreed to the following language in Article 12, Section 1: “The agency agrees to reduce workplace hazards to the lowest possible level without relinquishing its 5 USC 7106 management rights.”

In late 2018 the union noticed that that agency was filling only every other mission-critical position as the job occupants were reassigned, promoted or retired.  Word soon leaked out from the first line managers that the agency was doing this due to budget and what it believed were alternative ways to maintain safety.  In response, the union filed the following grievance:

Local 21 of ATGO alleges that the agency has violated Article 12, Section 1 by not filling mission-critical positions as required by written policy and thereby allowing unsafe conditions to develop.  As a remedy, the union requests that the agency cease and desist from violating the agreement and immediately fill these positions.

THE QUESTION: What is wrong with this grievance?

THE ANSWER: Kiko and Abbott, who have distinguished themselves as the two most unethical FLRA appointees ever, issued a decision on June 12 involving those facts.  The arbitrator had sustained the grievance and ordered the agency to once again fill the mission-critical positions.  When the agency filed exceptions, Kiko and Abbott were only too happy to overturn the union victory on the grounds that the arbitrator had no power to order the agency to fill jobs because that was a management right. They ignored the fact that the arbitrator was merely enforcing a policy the agency managers themselves had set.

However, there is not a thing the union can do about this very unfair and legally incorrect decision now. Under law arbitration decisions involving only violations of contracts, regulations and some statute cannot be appealed to the courts.  It is such a blanket grant of immunity that Abbott and Kiko could have overturned the arbitrator because, “We hate unions personally, and Trump put us here to screw with unions to punish them for not having the same political values as we do.  If we do a good job, we hope to be made federal judges or at least get a trip to Mar a Largo.”

But the union could have appealed the absurd Kiko-Abbott decision if they had done one thing different in the grievance.  If they had also alleged a unilateral change in working conditions violating 5 USC 7116(a), the unions could have taken their decision to the courts and won.  Here is how the grievance should have been written.

Local 21 of ATGO alleges that the agency has violated Article 12, Section 1 by not filling mission-critical positions as required by written policy and thereby allowing unsafe conditions to develop. It also alleges that the agency has made a unilateral change in policy and practice without serving notice on the union in violation of 5 USC 7116(a).  As a remedy, the union requests that the agency cease and desist from violating the agreement and immediately fill these positions.

5 USC 7116(a) is the unfair labor practice section of the statute and protects the union from agency unilateral changes.  It should be cited in a grievance whenever the union believes the agency has stopped complying with a contract obligation. It protects the union from two things.  First, it permits the union to go over Kiko and Abbott’s very unprincipled heads to the courts.  Second, it protects the union from an arbitrator who does not see that the contract was violated but does see that the agency made an unannounced change.

THE BONUS ANSWER: There is one more improvement that could be made to the grievance and it deals with the remedy the union requested.  Here is how we would have written the grievance.

Local 21 of ATGO alleges that the agency has violated Article 12, Section 1 by not filling mission-critical positions as required by written policy and thereby allowing unsafe conditions to develop. It also alleges that the agency has made a unilateral change in policy and practice without serving notice on the union in violation of 5 USC 7116(a).  As a remedy, the union requests that the agency cease and desist from violating the agreement, and immediately fill these positions retroactive to the date they should have been filed, provide back pay, interest, and attorney fees, and any other appropriate remedy. We further ask that the agency post a unit-wide notice similar to that which FLRA would impose for 60 days should the ULP be found.

Don’t just settle for correcting a problem going forward; ask for retroactive correction.  Don’t assume there is no back pay potential until you see how all the jobs are filled.  Don’t give away the chance for the union to get attorney fees because it can be a much bigger financial punishment for the agency than the back pay. Don’t overlook the same posting obligation that FLRA would require in an ULP case.

FINAL COMMENT: We would like to think that unions are making these mistakes because they have a lot of new, inexperienced stewards.  BUT THE EVIDENCE SUGGESTS THAT IS NOT THE CASE. We find this mistake of leaving out the potential ULP allegation is made by some of the most sophisticated locals in the country. Someone, somewhere out in UnionLand needs to do something about this.

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 Grievance/Arbitration and tagged . Bookmark the permalink.

Leave a Reply

Your email address will not be published. Required fields are marked *

Why ask?