THE OTHER OVERTIME REMEDY

There is an on-going fight between labor and management as to what is the correct remedy when a supervisor fails to give an employee an overtime assignment s/he was due under law and/or the contract. Management generally only wants to give the employee a make-up overtime assignment while the union asks for back pay without the need for the employee to work the actual hours.  Check out NTEU, 67 FLRA 247 (2014).  But there is a third option that we rarely hear discussed.

Let’s assume that an agency rotates its Claims Examiners through periodic Saturday overtime in seniority order with the result that each of them gets six days of Saturday overtime a year. However, due to some error it skipped Crystal one month and the union filed a grievance.  Typically, during the first step grievance meeting, via an off-the-record conversation, the agency offers to give Crystal a make-up or extra Saturday OT assignment to settle the dispute. It suggests that it will use her twice during the next rotation cycle.  Just as typically, the union rejects the offer, demanding back pay, interest, and attorney fees without Crystal having to work twice during the next cycle.

If this dispute moves to arbitration, each side will likely spend $3,000 for the arbitrator and hearing costs. Both also will spend significantly more in staff time to prepare for the hearing, do the hearing and handle any appeals to FLRA or even the courts. It is not a stretch at all to imagine the direct and staff costs of this dispute totaling over $25,000 by the time the case is done. If the union wins, that cost could easily double and come close to tripling because of the attorney fees.  In comparison, a day of overtime pay for Crystal might only be $400.00.

In our experience, the union rejects management’s offer of make-up overtime because it means that the person who should have worked that day to be given to Crystal will lose the assignment to Crystal. Permitting management to remedy its intentional or unintentional overtime assignment errors without paying a tangible penalty for the error removes the deterrence effect that encourage management not to screws up again. Unions should almost never allow agencies to break the law or other rules without paying a penalty.

Management, on the other hand, refuses to offer anything more than make-up OT because the labor relations shop will not budge on this two-decade long legal dispute about remedies, because someone is offended at paying $400.00 in back pay without getting work in return for it, or because the prevailing attitude toward the union is to give it nothing without litigation. Another all-too-common factor is that the responsible management official realizes that he/she will be retired or in another job by the time this issue is finally resolved and prefers to kick the can down the road.

If neither party is willing to accept the other’s standard remedy preference, then we should all be looking for another way to close the case. It occurs to us that management could offer to manufacture an extra overtime opportunity for the grievant that does not deny another employer his/her properly due OT chance.  For example, if the typical Claims Examiner Saturday OT assignment required 2 of the 12 to work on the group’s overdue claims for that week, management could schedule some other work for Crystal to do on a Saturday.  It would have to be unrelated to working claim cases.  Otherwise, the union will object because Crystal’s work assignment merely closed cases that otherwise would have been done on OT at some point.

For example, in this case Crystal could be assigned administrative work that the supervisor or group secretary would normally do, such as preparing some report, or tasked with preparing a training presentation for the group, or even instructed to review certain procedural manuals (or training materials) that the supervisor believes would help improve her work. That last task could even be done at the employee’s home via a one-time telework assignment.

We are not advocating that the assigned work be fictitious or a mere cover for 8 to 12 hours off with pay. But neither do we understand why both parties, but especially management, are so reluctant to tap non-traditional ways to get around each other’s traditional objective to the standard remedy positions of labor and management. OPM’s excused absence policies alone provide numerous ways to excuse an employee for a work day or more.  Check out the Dept. of Commerce’s explanation of the excused absence flexibility.