WHAT DID THIS UNION DO WRONG?
Here are the facts. See if you can figure out two things the union did wrong. The agency had a practice of placing a guard at each of its strategically important locations around its property every shift. When it suddenly changed that by requiring one staff person to cover two strategic locations per shift rather than one, the union charged management with violating the contract. The clause at issue read as follows: “The Employer agrees to lower inherent hazards to employees to the lowest level possible without relinquishing its management rights. A ‘strategic location’ is defined as a self-contained area and can only be safely secured by a single officer.” The union grievance asked for a return to the prior staffing level and that is what the arbitrator ordered. However, FLRA overturned the award saying that it intruded too heavily on management’s right to assign work. Have you identified the two errors yet?
First, whenever there is a practice in place that management unilaterally changes, as happened here, always, always, always allege an unfair labor practice. Charge management with making a unilateral change in working conditions without notice or bargaining. That violates 5 USC 7116(a)(1) and (5). Even if the practice was put in place in clear violation of a negotiated contract clause, do not make the mistake of only grieving an alleged contract violation as this union did.
If this union had done that there is little doubt that the arbitrator would have found a contract violation as well as a ULP. Then, when the Authority found the contract clause violated management rights and cancelled the remedy, the union would still have had a ULP violation. Unfair labor practice law holds that even if management rights give an agency the power to decide to change something like staffing patterns, the agency cannot implement that substantive decision until it notifies the union and completes bargaining over impact and implementation issues. In other words, the management rights sections of the law could not have been used by FLRA to void the ULP and status quo ante order. In all likelihood, the FLRA would have upheld the arbitrator’s order to return to the status quo ante.
The second error the union made was to merely ask for a prospective or future remedy, namely, a return to prior staffing practices in the future. It also had the right to ask that the agency–
- identify who would have been assigned to work each week had the staffing change not been made,
- calculate the number of hours each of them would have worked outside of any hours they were actually scheduled to work after the shift change, and
- compensate any employees who would have worked additional hours but for the illegal unilateral change at an appropriate salary rate. (That rate could include an overtime pay if they would have worked more than 40 hours a week when these missed hours were added to their actual hours.)
If the arbitrator awarded back pay, the union could also have received attorney fees for the case.
Grievances get settled on favorable terms before arbitration hearings because the agency realizes that it is taking a huge risk by forcing the case to arbitration. When the union only alleges contract violations, management always has a chance to overturn any remedy the arbitrator imposes because it violates a management right, as happened with this case. However, when it alleges a ULP, especially a unilateral change charge, management knows that little can stop an arbitrator from forcing it to return to the old practice and compensate employees for lost wages and benefits. So, tossing in a ULP allegation, civil rights charge, or claim of a regulatory violation not only gives the union additional chances to win, but also generally boosts the chances of the FLRA sustaining the arbitrator’s remedy.
(Originally posted July 17, 2013)