WHAT WOULD YOU DO?
Two employees walk into the union office and tell you that their new manager changed the rules for when employees get charged AWOL and disciplined. In the past, employees could arrive as late as seven (7) minutes after starting time and be considered timely. Now, however, the new manager had decided that even one minute late more than three times a month will get the employee either reprimanded or suspended depending on how late they are. One of the two employees asks for union protection because he has already been late twice this week while the other employee, the union steward in the group, says that she is willing to be a test case by deliberately coming in five minutes late until she is suspended. What do you do as the local union president or chief steward?
Unions face this situation every time some manager or management decides to change the conduct rules or imposes a new disciplinary charge that it has never used before. The union has two options. First, it can file an grievance on behalf of any individual employee who is disciplined and try to get the action overturned. Second, it can file a ULP and demand that any employees adversely impacted by the unilateral change in working conditions be made whole, including anyone who has been disciplined for violating the new rule.
But having those two options does not help you decide whether to take the steward up on her offer to deliberately violate the illegally implemented rule. What does help is case law. The Authority has encountered unilateral changes in the employees’ rule of conduct before. Its clearest message has been that while it will make the harmed employees whole, including reversing any discipline imposed under the premature rule, it will not help any employees who have deliberately violated the rule to provoke a test case. In one case it modified an ALJ’s order by specifying that any discipline imposed pursuant to the new dress code be reversed unless the employee deliberately violated the rule. The FLRA considers deliberate violations of the rules, even to set up a test case, to be insubordination and not eligible for reversal or back pay.
While the Respondent’s unilateral implementation of the dress code was unlawful, a refusal by an agency to negotiate in good faith does not excuse an employee’s insubordination in these circumstances. Procedures exist to remedy breaches of bargaining obligations, and the Union pursued them in this case. Self help — that is, disobeying supervisory instructions — cannot be condoned if the purposes and policies of the Statute are to be met. Accordingly, the order is modified to rescind all disciplinary actions initiated as a result of the dress code, except for those actions involving insubordination. AFGE, 23 FLRA 278 (1986) (See also AFGE 49 FLRA 1431)
So, even though it might be attractive to have an employee actually disciplined before the union challenges the unilateral implementation of the new rule, the test case employee will not get any remedy if management proves she violated the new rule deliberately.