GRIEVANCE STRATEGY ISSUES- Part 5 (Remedies)

We are back with Part 5 of our Grievance Strategy series that aims to give union reps a deep look at how to deal with the six most critical parts of a union grievance. As with the four previous editions (See the URL links below), let’s start with an example of a grievance situation.  Imagine that a big promotion decision was announced yesterday and this morning one of the union’s members, Joe Hill, asked you to file a grievance on his behalf.  He points out that he knows he was on the seven-person Best Qualified list #21-09, but was never interviewed despite the contract provision (Article 13, Section 5 Ranking and Selection Obligations Subsection (B)(3)(d)), requiring that “all those on the BQ list be treated uniformly.” Further imagine that you have charged the agency with not only violating Article 13, Section 5 of the agreement, but also related laws and regulations such as the civil rights acts, the prohibited personnel practices, and CFR requirements. It is now time to describe the remedy you want. Many stewards will ask that the agency re-rank the candidates consistent with law, regulation and the agreement as well as give Joe Hill priority consideration if his ranking changes. A few more will add that Hill and the union should be granted “all other appropriate remedies.” They know that phrase gives the arbitrator the power to impose other corrective actions beyond the re-ranking and priority remedies should further developments in the case show they are needed. But often an arbitrator will not think of what other remedies might be appropriate even when you give her/him the power to do anything appropriate. So, it pays to include that phrase AND to list examples, but not an exhaustive list, of the other remedies that you want the arbitrator to order. Here is what would be on our list and why.

Retroactive promotion – FLRA precedent allows an arbitrator to order a grievant be retroactively promoted.  Given that a union rarely knows the full extent of agency promotion screw ups when it drafts the grievance and before it gets all necessary information, why not ask for this until you know it is not possible?  Moreover, if the grievance proves an EEO or other violation of law, retroactive promotion is the standard remedy, not mere priority consideration.

Back pay, including differentials and awards– Yes, most folks will understand that if someone is entitled to a retroactive promotion s/he gets back pay.  But why take the risk that an agency tries to pull a fast one and just make it retroactive on paper? Similarly, it can avoid further disputes to specifically state that pay includes any differentials that might have been received as well as group awards.

Interest on back pay – We list this for the same reason we make a specific request for back pay.  Interest can significantly add to an employee’s back pay check.

Attorney fees – If the union wins almost any kind of retroactive compensation it is often entitled to receive attorney fees.  A union attorney can easily spend 100 hours preparing, presenting, briefing and closing out a case and that fees in some areas of the country can be as high as $900. an hour. So, why pass up the potential for a $90,000 penalty on the agency, not to mention a very welcomed addition to the union’s funds. Even non-attorneys can get fees if they presented the case under the supervision of an attorney

Retroactive time-in-grade and step – Don’t forget that if a grievant is retroactively promoted s/he should also be credited with retroactive time in the job.  That generally means they will get their next step increase sooner as well as qualify for the next grade level sooner.

Compensation for overtime missed – Yup! This too.  If the person who got the job in lieu of Hill earned 100 hours of overtime while in the job, Hill should be paid for that as well.

Retroactive TSP and FERS contributions – Did you forget this?  You shouldn’t because it can boost retirement payouts down the road.

Compensatory and other damages – If it turns out the union proves a civil rights violation, the employee will normally be entitled to damages.  Compensatory damages alone can be up to $300,000. and there is no limit on other kinds of damages.

Assignment to any training missed – If the agency filled the job and sent the selectee to training, then Hill should be given the same training no matter how inconvenient that might be for the agency.

Compensation for work schedule losses – Suppose the person selected in lieu of Hill was allowed to work a 5/4/9 schedule while the job Hill stayed in required he work eight hours a day for five days a week. Shouldn’t Hill be compensated for having to work that extra day every two weeks.  You can find case law sustaining arbitrator orders giving people in that situation overtime pay for the extra day of work every two weeks they were forced to work because they were not selected.

Reinstatement of leave – Again, assume that the job Hill wanted would have allowed him to work a 5/4/9 schedule. If Hill can show that he took sick or annual leavae that he would not have taken if he had been working a 5/4/9 schedule why shouldn’t he have that leave restored?

Posting of an appropriate notice – Although it is not done for contract violations, it is common whenever a law is violated for the law to require that the agency notify employees that it violated the law and pledge not to do so again.  It is great, free publicity for the union. Ask for it.

Consideration of discipline for managers responsible for the violations – When a federal manager violates the law, s/he violates the federal employee rules of conduct and ethics. That normally requires the agency to consider discipline.  EEOC orders the agency to consider discipline and the MSPB has fined managers committing prohibited personnel practices.

Aside from paying attention to getting the grievant everything he or she is entitled to and forcing the agency to assume full liability no matter the pain, merely listing a string of remedies can often focus the agency decision-makers early on everything they stand to lose if they do not settle. Don’t expect agency LR Specialists to spell out for the executives all the risks an agency takes by not settling a grievance.

Finally, from experience we believe 99% of the arbitrators doing federal sector cases have no idea of all the remedies relevant to a grievance.  If you do not spell them out for the arbitrator, they will never consider them.

We recommend that stewards run through the list of remedies included in our post, “Are You Getting’ Enough From Grievances?”  It deals with remedies beyond those related only to promotion grievances.

Grievance Strategy Issues – Part 4

https://fedsmill.com/part48117-2

Part 3

https://fedsmill.com/pt38095-2

Part 2

https://fedsmill.com/gs8042-2

Part 1

https://fedsmill.com/gstrategy8030-2

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.
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