TEST YOURSELF, UNION REP (Remedies)
QUESTION: An employee stops her union rep, you, in the cafeteria to report that her manager will no longer let her telework the three days a week she has for the last year. H he has limited her to one day a week. When the rep asks her why the manager did this, the employee reports that the manager told her his new third line manager has asked everyone to cut back on telework. The rep went on to check if any of the grounds in the contract for decreasing telework applied and assured himself none did. The employee said she would agree to file a grievance, but only if the remedy was worthwhile. Otherwise, she would prefer to stay on the manager’s good side to see if she can change his mind over time. Which of the following remedies can the union get from an arbitrator for the employee under law?
- A cease and desist order returning her to three days a week of telework,
- Reimbursement for the cost of coming to work on the two telework days a week denied her,
- Overtime for the time she spent traveling to work on the two telework days denied her,
- An order that she be allowed to telework three days a week for the next 12 months, and/or
- Reinstatement of any annual or sick leave the employee took because she was not teleworking.
ANSWER: One of the more maddening mistakes a union can make when drafting a grievance or presenting an arbitration is not asking for all available remedies. To avoid that mistake, it pays to keep up with what the FLRA allows. Here are what we believe to be the correct answer for each of the five possibilities above.
- If the contract entitled the employee to three days, the union can get a cease and desist order.
- FLRA has upheld the right of an arbitrator to order an agency to pay the cost of an employee’s commute for those days she should not have been required to come to work. Check out this post for a deeper explanation and case citation: “FLRA Boosts Telework Remedies.” (See also NFFE, 67 FLRA 400 (2014))
- We can’t find a case on point. So, the union should ask for it because it has nothing to lose.
- Nope. An arbitrator cannot override a contract and this contract lists some grounds for disapproving telework. The arbitrator’s order must allow for those disapprovals. Check out AFGE, 70 FLRA 206 (2017) for a good explanation.
- Yes, but be sure you can show that the leave the employee took would not have been necessary but for the denial of telework. This is a big deal because reimbursement of leave makes the union eligible to file for attorney fees to add a little extra sting to the remedy.