CAN UNIONS SACRIFICE RETIRED GRIEVANTS?

Every so often we hear from a union officer trying to settle a grievance asking whether s/he can cut out of the deal anyone no longer in the unit, agency, or even federal government. For example, suppose an agency refused to pay 50 unit employees public transit subsidies one fiscal year despite a contract entitlement at the rate of $200 a month. If the union filed a mass grievance on October 15, 2004 that covered all 50 harmed employees and it took nine years to settle that case (October 15, 2013) after all the grievance steps, multiple arbitration hearings, FLRA exceptions, etc. it is very likely only half of the original 50 were still in the bargaining unit then.

Assume that five went into management early in the year they were denied the subsidies, five more went into management after that year, five retired on federal pensions since the grievance was filed, five left government before qualifying for a pension and five died. So, what obligation does the union leader have to those various groups who were covered by the grievance? It is not complicated, and begins with the union’s Constitution and Bylaws (C&B).

Unless the C&B requires the union leader, typically the president, to get the approval of the executive board, a grievance committee, or other union officials, the president can enter any settlement s/he wants so long as it does not violate the law.

As for the law, it is both clear and unclear. FLRA has held that retired employees can be given remedies by arbitrators so long as the violation being remedied occurred while the employee was in the bargaining unit. (See Dept. of Interior and IBEW, 42 FLRA 902 (1991); see also 50 FLRA 701 (1995)) That case makes it clear that retired federal employees are still covered by the law for purposes of that grievance claim. There is no reason to believe the law is any different regarding those who left government before retiring or who have died since the grievance was filed. They (or their estate) can still receive remedies. All of that seems clear—or at least clear to us. (As with any significant claim one might have, our best advice always is check with a competent attorney before making any personal decisions. Fedsmill does not give legal advice.)

But just because FLRA holds that retired/former employees can share in a back pay remedy from a settlement or arbitration decision that does not mean they must be given their fair share. Returning to the hypothetical facts outlined in the opening of this article where the union leader is about to settle a very old grievance, s/he cannot violate the law when designing a settlement. For example, if the union leader decided to not include the retired/former employees in the back pay settlement pot of cash because they were no longer union members, s/he might be vulnerable to an unfair labor practice charge that the union discriminated based on membership status. Title 5 USC 7114(a)(1) states, “An exclusive representative is responsible for representing the interests of all employees in the unit it represents without discrimination and without regard to labor organization membership.” Any significant difference between the membership rate among retired/former employees and current employees could be grounds for a ULP charge (5 USC 7116(b)(1) and (8)) against the union by any of the retired/former employees.

It is also possible that a ULP charge could be filed if every one of the current, retired and former employees remained a member, but the union leader cut out the retired and former folks because their token dues payments are far less than those of current employees. That also could be discrimination based on union status.

Another grounds on which to file a ULP charge is claiming that the union leader was arbitrary, acting in bad faith, or grossly negligent. FLRA has held that the law imposes on union leaders the obligation to represent employees without arbitrariness or bad faith, e.g., whether the union leadership deliberately and unjustifiably treated one or more bargaining unit employees differently from other employees in the unit.  (Remember that former/retired employees are still considered unit employees for the purpose of any grievance claimed based on the time they were in the unit.)  Check out NFFE, Local 1453 and Kenneth A. Crawford, National Federation of Federal Employees, Local 1453 and Clara Mae Dixon, 23 FLRA 686 (1986) for a discussion of this approach.

Aside from the potential ULP violation, union leader decisions can under certain circumstances be challenged under the various civil rights laws. A significant disparity between the civil rights classifications of current union members and retired/former employees might be grounds for a valid claim. If the agency that entered the settlement deal had any reasonable knowledge of the relevant civil rights facts, the employees left out of the deal could also file EEO charges against the agency.

But, you might be asking, what can the harmed retired/former employee expect to get if the agreed upon settlement pot of cash had already been distributed to the few active members covered by the settlement? Let’s go back again to the opening hypothetical where the original grievance claimed back pay at the rate of $200 a month for an entire year for 50 employees. That equals $120,000.00 in potential back pay or $2,400.00 per grievant. If the union leader got tired of fighting this case, s/he could go into the agency and say that the union will take only $50.000.00 split evenly among current employees to settle the case. That would mean $2,000.00 for each current employee/member. However, in some cases the union is required to pay the harmed members. Check out these cases for examples where the union had to pay the employees out of the union treasury even though the agency was part of the problem: NATCA and FAA, 66 FLRA 467 (2012); AFGE, Local 3354 and Opal Lang, 58 FLRA 104 (2002); Dept. of the Air Force, Loring AFB and AFGE, 43 FLRA 1087 (1992); and NFFE, Local 1827 and Catherine Bratton, 49 FLRA 738 (1994).  You might even want to check out Ammodt v. US, 976 F.2d 691 (1992) for a Court of Appeals discussion about a union’s obligation to file and process grievances for employees who retired, but still have a timely grievance claim.

So, if the retired/former employees won their ULP charge the union alone could be liable for paying each of them one of three amounts, namely, the full $2,400.00, the $2,000.00 the current employee got, or even $1,000.00. That last figure is what would have been given to each original grievant if the settlement pot of $50,000.00 had been distributed equally. It would be up to the judge to factually determine which was appropriate.

If the union leader in our opening hypothetical had wanted to play it safe, s/he should have simply continued the fight and let the chips fall where they may. Or, if s/he really did want to limit the chunk of money taken out of the current budget to pay a near decade-old violation, the $50,000.00 settlement fund should have been divided among anyone of the 50 original grievants who made a claim. If all 50 filed, they would get $1,000.00 each. If ten of the former employees filed along with all 25 still employed, their checks would be $1,428.00.