Slide 1

Report
EEOC EXCEL
2011
All You Would Want to Know
The Intersection of Collective Bargaining,
the Federal Labor Relations Authority,
Arbitration and the EEO Program
Peter Broida
WHAT’S IT ALL ABOUT ?
5 U.S.C. § 7101.
Findings and purpose
(a) The Congress finds that—
(1) experience in both private and public employment indicates that the statutory
protection of the right of employees to organize, bargain collectively, and participate
through labor organizations of their own choosing in decisions which affect them—
(A) safeguards the public interest,
(B) contributes to the effective conduct of public business, and
(C) facilitates and encourages the amicable settlements of disputes between employees
and their employers involving conditions of employment; and
(2) the public interest demands the highest standards of employee performance and the
continued development and implementation of modern and progressive work
practices to facilitate and improve employee performance and the efficient
accomplishment of the operations of the Government.
Therefore, labor organizations and collective bargaining in the civil service are in the
public interest.
KNOW YOUR RIGHTS
5 U.S.C. § 7102.
Employees’ rights
Each employee shall have the right to form, join, or assist any labor organization, or to
refrain from any such activity, freely and without fear of penalty or reprisal, and each
employee shall be protected in the exercise of such right. Except as otherwise
provided under this chapter, such right includes the right—
(1) to act for a labor organization in the capacity of a representative and the right, in that
capacity, to present the views of the labor organization to heads of agencies and
other officials of the executive branch of the Government, the Congress, or other
appropriate authorities, and
(2) to engage in collective bargaining with respect to conditions of employment through
representatives chosen by employees under this chapter.
Duty to Bargain in Good Faith
5 U.S.C. § 7114(a)(1).
The Statute mandates that “any agency and any
exclusive representative…shall meet and negotiate in
good faith for the purposes of arriving at a collective
bargaining agreement.”
BARGAIN ABOUT WHAT ?
5 USC 7103(a)(12):
“[C]ollective bargaining” means the performance of the mutual obligation of the
representative of an agency and the exclusive representative of employees in an
appropriate unit in the agency to meet at reasonable times and to consult and bargain
in a good-faith effort to reach agreement with respect to the conditions of
employment affecting such employees and to execute, if requested by either party,
a written document incorporating any collective bargaining agreement reached, but
the obligation referred to in this paragraph does not compel either party to agree to a
proposal or to make a concession.
WHAT ARE THOSE BARGAINABLE CONDITIONS ?
5 USC 7103(a)(14):
“conditions of employment” means personnel policies, practices, and matters,
whether established by rule, regulation, or otherwise, affecting working
conditions, except that such term does not include policies, practices, and matters—
(A) relating to political activities prohibited under subchapter III of chapter 73 of this title;
(B) relating to the classification of any position; or
(C) to the extent such matters are specifically provided for by Federal statute.
ANYTHING NOT NEGOTIABLE ?
5 USC 7117(a):
(1)
Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall,
to the extent not inconsistent with any Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any rule or regulation
only if the rule or regulation is not a Government-wide rule or regulation.
(2)
The duty to bargain in good faith shall, to the extent not inconsistent with Federal
law or any Government-wide rule or regulation, extend to matters which are the
subject of any agency rule or regulation referred to in paragraph (3) of this
subsection only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
WHAT’S A COMPELLING NEED THAT PERMITS AN AGENCY TO REGULATE WHAT’S
NONNEGOTIABLE ?
Compelling
need
regulations
are
found
at
5
CFR
2424.50
(2010):
A compelling need exists for an agency rule or regulation concerning any condition of
employment when the agency demonstrates that the rule or regulation meets one
or more of the following illustrative criteria:
(a)
The rule
desirable,
functions
consistent
or regulation is essential, as distinguished from helpful or
to the accomplishment of the mission or the execution of
of the agency or primary national subdivision in a manner that is
with the requirements of an effective and efficient government.
(b)
The rule or regulation is necessary to ensure the maintenance of basic merit
principles.
(c)
The rule or regulation implements a mandate to the agency or primary
national subdivision under law or other outside authority, which
implementation
is
essentially
nondiscretionary
in
nature.
THE CONCEPT OF MANAGEMENT RIGHTS
Management rights, and the limitations upon the negotiation of proposals that affect those rights, are
defined at 5 USC 7106:
(a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any
management official of any agency—
(1) to determine the mission, budget, organization, number of employees, and internal security
practices of the agency; and
(2) in accordance with applicable laws—
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce
in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the
personnel by which agency operations shall be conducted;
(C) with respect to filling positions, to make selections for appointments from—
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency mission during emergencies.
NEGOTIABLE PROCEDURES AND ARRANGEMENTS
(b)
Nothing in this section shall preclude any agency and any labor organization from
negotiating—
(1)
at the election of the agency, on the numbers, types, and grades of employees or
positions assigned to any organizational subdivision, work project, or tour of duty,
or on the technology, methods, and means of performing work;
(2)
procedures which management officials of the agency will observe in exercising
any authority under this section; or
(3)
appropriate arrangements for employees adversely affected by the exercise
of any authority under this section by such management officials.
“Impact and Implementation Bargaining”
“I-squared” [hip jargon: impress your friend]
BAD, BAD MANAGERS
Management unfair labor practices are defined at 5 USC 7116:
(a) For the purpose of this chapter, it shall be an unfair labor practice for an agency—
(1) to interfere with, restrain, or coerce any employee in the exercise by the employee of
any right under this chapter;
...
(5) to refuse to consult or negotiate in good faith with a labor organization as required by
this chapter;
...
2, 4, 6, 8—
WHAT TO WE NEED TO NEGOTIATE?
INFORMATION !
Development of information in labor relations and arbitration does not occur through
investigations or discovery applicable to EEO.
STATUTORY INFORMATION REQUESTS FOR UNIONS [NOT MANAGEMENT]
Section 7114(b) provides in part:
(b)
…
(4)
The duty of an agency and an exclusive representative to
negotiate in good faith under subsection (a) of this section shall
include the obligation—
in the case of an agency, to furnish to the exclusive representative
involved, or its authorized representative, upon request and, to
the extent not prohibited by law, data—
(A)
which is normally maintained by the agency in the regular course
of business;
(B)
which is reasonably available and necessary for full and proper
discussion, understanding, and negotiation of subjects within the
scope of collective bargaining.
RECAPITULATION
WHAT’S TO NEGOTIATE ?
“conditions of employment” means personnel policies, practices, and matters, whether
established by rule, regulation, or otherwise, affecting working conditions”
Not covered by government-wide regulations, specifically set by statute, or agency
regulation supported by compelling need;
Not infringing a management right, unless a procedure or an arrangement to ameliorate
the effect of the exercise of a management right.
WHAT ARE EXAMPLES OF NEGOTIABLE MATTERS AFFECTING
THE EEO PROGRAM ?
EEO PLAN
AFGE and Air Force Logistics Command, Wright-Patterson AFB, 2 FLRA 604, 615–19
(1980) (Proposal 9) approved as negotiable:
Proposal requiring Air Force components to develop EEO plans at the local level to
address existing and future personnel problems affecting equal employment, to study
work patterns and set employment goals, to review training, promotion, awards, and
disciplinary actions to ascertain if there were adverse EEO implications.
The proposal mandated a national plan requiring statements of management goals and
the creation of quarterly progress reports.
The proposal also required communication of EEO goals by management to employees
and called upon management to develop plans to establish and maintain contacts
with the minority workforce and community groups, schools, and other public and
private groups to improve employment opportunities.
Objectives and Goals
AFGE Local 1923 and DHHS, HCFA, Baltimore, 44 FLRA 1405, 1415 (1992), found
negotiable the following proposal:
Section 1.POLICY
It is the policy of the Administration to provide equal employment opportunities and
treatment for all current or prospective employees and to: prohibit discrimination
because of race, color, religion, sex, national origin, mental or physical handicap, age,
marital status, or political affiliation. Toward this end the Administration agrees to
maintain a work environment that assures employees fair and impartial treatment in
all employment actions with special consideration for the effect and not merely the
intent of management decisions.
Selection
Procedures
Validation
AFGE Local 1923 and DHHS, HCFA, Baltimore, 44 FLRA 1405, 1449–54 (1992),
Negotiable: proposal setting up a program to study job placement actions,
to determine underrepresentation,
to conduct validation of selection procedures to identify barriers to equal employment in
underrepresented jobs,
and to modify or eliminate selection procedures that management determines, through
validation studies, are unwarranted barriers to equal employment.
Bridge Positions
AFGE Local 1923 and DHHS, HCFA, Baltimore, 44 FLRA 1405, 1459 (1992), approved
as negotiable the proposal that:
Management is to “continue to develop transitional positions that will enable
minorities and female employees to move from clerical and technical positions into
Administrative and professional ones.”
Placement
Preferences—bridge
positions
Negotiable in AFGE Local 1923, 44 FLRA at 1493, was Proposal 25, requesting that
minorities and women in identified pools of underrepresented internal applicants be
given first consideration in filling bridge positions, i.e., entry–level administrative or
professional jobs. The result was consistent with other decisions holding negotiable
proposals requiring prior consideration of internal candidates for vacancies, as long
as no impediment existed to subsequent consideration of candidates from other
sources.
POSITION DEVELOPMENT
AFGE Local 1923 and DHHS, HCFA, Baltimore, 44 FLRA 1405, 1471 (1992), found
negotiable the proposal
management review various jobs and then determine whether duties could be added
to them that would qualify incumbents for administrative and professional positions.
The proposal did not require action to be taken by management to achieve the
purpose of the proposal.
TRAINING
The AFGE 1923 case found negotiable the proposal that:
the agency provide training to employees selected, through agency discretion, from
underrepresented groups, to ensure that those employees progress satisfactorily to
the journeyman level.
The agency retained the discretion to determine the content of the training, as well as
who, where, and how often the training will be provided.
The proposal did not specify the type of training the agency must provide, e.g., formal
classes, or on-the-job training, and the proposal did not dictate the scheduling of
training or specify who would provide it to employees.
Assistance for Disabled Employees
IFPTE, Local 4 and Dept. of Navy, Portsmouth Naval Shipyard, 35 FLRA 31 (1990).
Provision 2 required that employers of physically disabled employees make every
effort to: (1) place the employee in a position he can perform at the same grade and
pay; or (2) waive qualification standards to allow entry into a closely related
occupation within the employee’s ability.
[
Even though Provision 2 requires management to make efforts to provide a way for a
unit employee, whom management determines is not able to perform in his or her
current job because of a physical disability, to continue to work, the provision (1) does
not limit the jobs or duties which management can assign; and (2) leaves all
qualifications determinations, including whether it is practicable to waive
qualifications, to management. Moreover, this provision comports with the Federal
policy requiring agencies to make reasonable accommodations to the physical
limitations of their employees under the Rehabilitation Act of 1973.
Held negotiable in AFGE Local 2024 and Dept. of Navy, Portsmouth Naval Shipyard, 37
FLRA 249, 258 (1990) (Proposal 5), was the provision:
When the Employer determines that an employee is physically disabled for service in
his/her current position, every effort will be made to place the employee in a position
at the same grade or pay or, if practicable, to waive qualification standards to allow
entry into a closely–related occupation which the employee is physically able to
perform at the same grade and pay.
The Authority approved the negotiability of a proposal that a means be provided for
disabled persons to enter the office. That the proposal might assist nonunit
employees or members of the public did not remove it from the ambit of conditions of
employment. AFGE Local 644 and Dept. of Labor, MSHA, 27 FLRA 375, 381 (1987)
(Proposal 6).
Approved as negotiable in AFGE Local 2761 and Dept. of Army, Army Publications
Distrib. Ctr., St. Louis, 47 FLRA 931, 932 (1993) (Proposal 2), was a proposal that
management make electric scooters available to disabled employees who distributed
agency publications within an enclosed building.
Job Restructuring
AFGE Local 1923 and DHHS, HCFA, Baltimore, 44 FLRA 1405, 1522 (1992),held
negotiable:
A demand that “[r]easonable accommodations are to be considered as exceptions to
[its] general fiscal restrictions.”
Despite agency objections that the proposal infringed its right to set its budget, the
provision did not interfere with the right of the agency to determine its budget. The
proposal did not inject the union into the budget process. The agency did not show
whether the costs resulting from implementation of the proposal would be offset by
compensating benefits.
EEO INVESTIGATION PROCESS
Concerning a union’s interest in expediting the often languid EEO investigative process,
the Authority blessed the negotiability of Proposal 30 in AFGE Local 1923 and DHHS,
HCFA, Baltimore, 44 FLRA 1405 (1992).
The Administration shall insure that the initial interview occurs within 1 workday unless
other arrangements have been mutually agreed to by the employee/representative.
The Administration will insure that the investigation of a formal complaint will begin within
30 days of the date that the complaint was filed.
The final investigative report shall be issued within 60 days of the date that the complaint
was formally filed.
If a decision without hearing is requested the Administration and/or Department shall
issue said decision within 30 calendar days.
When the EEOC transmits the recommended decision to the Department, the
Department/HCFA shall have 60 days to issue the Final Agency Decision (FD).
YOU HAVE A CONTRACT
WHAT CAN BE GRIEVED ?
BROAD SCOPE GRIEVANCE PROCEDURE
7103(a)(9)(A) states that “[f]or the purpose of this chapter ‘grievance’ means any
complaint by any employee concerning any matter relating to the employment of the
employee.”
YOU MAY HAVE TO MAKE A BINDING CHOICE
ELECTION OF REMEDIES
5 USC 7121(d) provides:
(d) An aggrieved employee affected by a prohibited personnel practice under section
2302(b)(1) [discrimination] of this title which also falls under the coverage of the
negotiated grievance procedure may raise the matter under a statutory procedure or
the negotiated procedure, but not both. An employee shall be deemed to have
exercised his option under this subsection to raise the matter under either a statutory
procedure or the negotiated procedure at such time as the employee timely initiates
an action under the applicable statutory procedure or timely files a grievance in
writing, in accordance with the provisions of the parties’ negotiated procedure,
whichever event occurs first.
Selection of the negotiated procedure in no manner prejudices the right of an aggrieved
employee to request the Merit Systems Protection Board to review the final decision
pursuant to section 7702 of this title in the case of any personnel action that could
have been appealed to the Board, or, where applicable, to request the Equal
Employment Opportunity Commission to review a final decision in any other matter
involving a complaint of discrimination of the type prohibited by any law administered
by the Equal Employment Opportunity Commission.
WHEN IS THE EEO SYSTEM ACTUALLY SELECTED ?
Under § 7121(d), contact with an EEO counselor does not constitute a formal election of
remedy between EEO appeals proceedings and grievance proceedings. To raise a
matter under an EEO appeals procedure, governed by 29 CFR Part 1614 [formerly
29 CFR Part 1613], there must be a written EEO complaint. The EEO precomplaint
process is informal and often advisory.
Dept. of Justice, Marshals Serv. and Int’l Council of Marshals Serv. Locals, AFGE, 23
FLRA 414, 417–18 (1986).
A Single Claim Cannot be Split
Setting aside an arbitration award that considered a suspension that had also been
challenged through EEO procedures, the Authority held that a single claim may not
be split between two actions, one an EEO action challenging the suspension as
discriminatory, the other a grievance challenging the same suspension as not for just
cause.
Dept. of Justice, Marshals Service and AFGE Council of Marshals Service Locals, 23
FLRA 564 (1986).
Effect on Third Parties: EEO Adjustments
The interplay of the statutory entitlement to reasonable accommodation and the
protections of a collective bargaining agreement were explored in VAMC,
Togus and AFGE Local 2610, 55 FLRA 1189 (1999).
A group of employees rotated through shifts. One of the employees had a
disability that resulted in an agreement by the agency to keep him on the
day shift, causing an increase in swing shift and night work for the other
employees. A grievance protesting the permanent day shift assignment of
the disabled employee was resolved by an arbitrator, who honored the
past practice and contractual arrangements and directed the agency to
discontinue the permanent day shift assignment for the disabled
employee. The Authority upheld the arbitrator, holding that the contractual
arrangements trumped the accommodation reached under the
Rehabilitation Act.
What Law Applies in Arbitration ?
MCDONNELL DOUGLAS APPLIES IN ARBITRATION
Dept. of Treasury, IRS, Helena Dist. and NTEU Chapter 42, 37 FLRA 1410, 1419–22
(1990), reviewed an arbitration award finding discrimination as to a promotion. The
Authority sustained the arbitrator’s decision to award the grievant a retroactive
promotion with back pay consistent with the Back Pay Act, 5 USC 5596. The use of
the three-part analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
was approved: (1) the grievant bears the burden of establishing a prima facie case of
discrimination; (2) the agency must then articulate a legitimate, nondiscriminatory
reason for the employment action; and (3) if the agency articulates that reason, the
grievant has the burden of persuading the arbitrator that the articulated reason is
pretextual or that it is more likely that a discriminatory reason motivated the
decisionmaker. The prima facie case can be established if the employee shows that
(a) she is a member of a protected class; (b) she applied for and is qualified for the
position; and (c) someone of equal or lesser qualifications who is not a member of the
class was selected for the position.
FLRA DEFERS TO ARBITRATOR’S FACTUL FINDINGS
AFGE Local 3615 and SSA, OHA, 55 FLRA 1160, 1162–63 (1999), noted that when an
arbitrator’s award relating to a discrimination claim is challenged through exceptions,
the arbitrator will not in the usual circumstances second guess the arbitrator’s
underlying factual findings.
THE FACTUAL FINDINGS NEED NOT BE UNDULY COMPLEX
The Authority does not always hold arbitrators to a high standard of analysis of EEO
issues, and permits fairly attenuated arbitral analysis
Health Care Financing Administration, Department of Health and Human Services and
American Federation of Government Employees, Local 1923, 35 FLRA 274, 291
(1990)
The Union has not demonstrated that this conclusion is inconsistent with law. In
particular, the Union has not demonstrated that the Arbitrator failed to apply the
appropriate legal standard for deciding the issue. Although the Arbitrator did not
discuss whether the grievant had established a prima facie case or any of the
other burdens in an age discrimination case, we can find no basis on which to
conclude that he was required to do so.
AUTHORITY UPHOLD’S PROPERLY REASONED DENIALS
OF RELIEF BY ARBITRATORS
AFGE Local 2923 and DHHS, NIH, 62 FLRA 109, 111 (2007), found no reason to set
aside an award that found no disability discrimination when the grievant, who was
telecommuting by reason of a worksite injury, was not promoted because she could
not perform the full range of duties of the job from her home.
EXAMPLES OF AWARDS
TRAINING FOR SUPERVISORS
The Authority examined the nature of sexual harassment and approved
remedies including training for supervisors in Dept. of Air Force, Edwards
AFB and AFGE Local 3854, 48 FLRA 74, 82–90 (1993)
As part of the remedy, the Arbitrator ordered the first and second-line
supervisors to attend, on a regular basis, “training workshops/seminars, etc.
on [s]exual [h]arassment for the purpose of being/becoming informed as to
what their [l]egal [o]bligations are, as [Agency] representatives[, on] this
extremely important [i]ssue.” The Agency argues that this portion of the
remedy directly interferes with, and abrogates, management’s rights to
discipline and assign work.
Arbitrators have great latitude in fashioning remedies.… We find that the
Agency’s exception to the portion of the remedy requiring the first and
second-line supervisors to attend workshops or seminars on sexual
harassment constitutes disagreement with the Arbitrator’s fashioning of the
remedy and provides no basis for finding the award deficient.
PHYSICAL SEPARATION OF
EMPLOYEES AS A REMEDY
Dept. of Justice, Federal Bureau of Prisons, MDC Guaynabo and AFGE Local
4052, 59 FLRA 787, 791–93 (2004) found an award appropriate that
required the agency to maintain physical separation between a grievant and
a supervisor who was found by the arbitrator to have engaged in conduct
that constituted sex discrimination in general and a hostile working
environment.
The Authority relied on Commission Compliance Guidelines calling for
reassignment of the harasser unless the complainant desires otherwise.
“The Arbitrator ordered, among other things, that the supervisor not supervise
the grievant, and that the supervisor remain at least 10 feet from the
grievant at all times and not speak to her except concerning work related
matters. The Arbitrator’s remedy is based on evidence in the record
showing action taken by the Agency to address the supervisor’s sexual
harassment of the grievant before the Arbitrator determined that such
conduct constituted a violation of Title VII. Accordingly, we find that the
contested remedies are not contrary to law.”
LEAVE RESTORATION
SUSTAINED
Provisions of negotiated agreements may establish accommodative requirements
(substantive or procedural) beyond those required by the ADA. Those contractual
requirements may be enforced through arbitration and they may provide entitlements
under the Back Pay Act. A contractual provision calling for accommodations was
enforced through an award granting leave restoration, and that award was found
unobjectionable by the Authority in SSA and AFGE Local 3509, 63 FLRA 661, 663
(2009):
COUNSEL FEE AWARDS IN CIVIL
RIGHTS CASES
In 1992, the Authority provided its first explanation of fee entitlement standards in
successful grievances leading to findings of discrimination and reprisal for filing
discrimination charges or complaints. The Authority held in FDIC, Chicago Region
and NTEU Chapter 242, 45 FLRA 437, 454–56 (1992), on exception to an award
directing a promotion with back pay:
When exceptions are filed to arbitration awards resolving requests for attorney fees under
the Back Pay Act, the Authority’s role is to ensure that the arbitrator has complied
with applicable statutory standards. Id. Furthermore, when the exceptions concern
the standards established under section 7701(g), the Authority applies the decisions
of the Merit Systems Protection Board (MSPB) and the U.S. Court of Appeals for the
Federal Circuit. Naval Air Development Center, Department of the Navy and
American Federation of Government Employees, Local 1928, AFL–CIO, 21 FLRA
131, 154 (1986)
In Bartel v. FAA, 30 MSPR 451, 457 (1986), the MSPB recognized that
by its terms, section 7701(g)(2) applies to cases of discrimination on
the basis of race, color, religion, sex, national origin, age, or
handicapping condition as prohibited under section 2302(b)(1). The
MSPB found that, in the legislative history of the Civil Service
Reform Act, Congress expressed an intent with respect to an award
of attorney fees to apply the standards of Title VII of the Civil Rights
Act of 1964 more broadly than expressly provided in the language of
the Reform Act.
In applying the standard of section 7701(g)(2), the MSPB awards
attorney fees whenever the employee prevails and there has been a
finding of prohibited employment discrimination.
INNOVATIVE REMEDIES
Bureau of Prisons Case
It is one thing to find reprisal, another matter to construct a remedy affecting people who
continue to work together.
In most labor arbitration cases, once the arbitrator makes his findings of fact, the
determination of what constitutes an appropriate award is usually not a complicated
or difficult issue. For example, in cases of unjust discharges the remedies usually
include an award of reinstatement, back pay and, perhaps, an order to cease and
desist from a practice which violates the collective bargaining agreement. Similarly, if
the issue in dispute involves contractual interpretation, the award determines the
correct interpretation and orders whatever remedial measures may be needed to
undue the harm caused by the erroneous interpretation. In the general run of cases
the guiding remedial principle is to make the grievant whole, in short, to do equity.
That too is the guiding principle in employment discrimination cases, but in such cases
implementing equity tends to be a far more complex process and even more so if
once the grievance has apparently been resolved, there is an aftermath of retaliatory
actions.
To overcome the latter obstacles, there will be included in the award remedial orders
which are not typical, precisely because this is an exceptional case. It will also include
a number of recommendations which are intended to fortify the objective of reaching
a final solution, but which I have concluded are beyond the remedial authority of the
arbitrator to cast as orders under the terms of the Master Agreement. Herewith is my
reasoning in support of the remedial measures and recommendations which are
included in the award.
To assure full compliance, which means to assure that grievant will have peace of mind,
to carry out his work and his union responsibilities free from retaliation, discrimination
or indignities of any kind, two further remedies will be needed.
First, the Agency will be instructed to develop and to propose a new work protocol under
which all relations between the grievant and Lt. R_____ will be separated without any
possible exception. Concretely that would mean the following: in addition to
maintaining the present arrangement under which the grievant and Lt. R_____ work
different shifts and are assigned to different departments, the protocol will instruct Lt.
R_____ that under no circumstances is he to supervise the grievant or to take any
personnel decision with respect to him. Furthermore, if for any reason he must enter
Lt. R_____’s working area, the grievant will be accompanied by a management
official designated by the Warden. And if a personnel decision affecting the grievant is
required to be made which normally would fall to Lt. R_____’s sphere of
responsibility, in an exceptional situation, it will be made by the management official
designated by the Warden.
On behalf of the Agency, the Warden will prepare the protocol and submit it to the
arbitrator, with a copy to the Union. The Union will then submit its comments on the
protocol. Once the protocol is adopted in an award, there will be in place a system of
regular reports by the Agency and the Union. After a reasonable period of full fledged
compliance, the regular reporting requirement will cease to have effect. This is an
extraordinary remedy and is only justified by the Agency’s failure to fully implement
the awards in the prior arbitration cases. Its duration will depend on the Agency. A
reasonable period of compliance with the protocol would justify lifting the reporting
requirement.
AFGE, Council of Prison Locals, Local 4052 and Dept. of Justice, Fed. Bureau of
Prisons, MDC, Guaynabo, P.R., 109 LRP 33909 (2009 Helfeld)
COMPENSATORY DAMAGES
Now, although it is well accepted that there are no hard and fast rules
governing the amount awardable, such amounts must be limited to what is
reasonably necessary to compensate the Grievant for actual harm, even
where the harm is intangible (See Carter v. Duncan Hogans Lid. 727 F.2d
1225 (D.C. Cir. 1994) cited in Durrant supra, p. 12) When determining the
amount of non-pecuniary damages, considerations that must be taken into
account include the extent, nature, severity, and duration of the proven
harm. (See Portier v. Department of the Army, EEOC Decision, February
28, 2001, citation omitted) It is also understood that the amount awarded
must not be: 1) “monstrously excessive” standing [alone] and 2) consistent
with awards made in similar cases. (See Cygnar v. City of Chicago, 865 F.
2d 827, 848 (7th Cir. 1989)
NTEU and IRS, 101 FLRR-2 1189 (2001 Butler)
EXAMPLE OF COMPENSATORY
DAMAGES AWARD
A proper award must meet two goals: it must not be “monstrously excessive” standing
alone, and it must be consistent with the amounts awarded in similar cases. See
Cygnar v. City of Chicago, 865 F.2d 827, 848 (7th Cir. 1989) at 574; and U.S.
Department of Defense, Camp Lejeune Dependents School, supra, citing cases. In
this respect, awards in cases cited by the Grievant were for disciplinary actions which
were not resolved in the Grievant’s favor for several years. See Bains v. USPS,
Appeal no. 01A03585 (2003) ($30,000 for emotional distress of discharge; and
Glockner v. DVA, Appeal No. 07A30105 (2004) ($200,000 for a pattern of harassment
based upon race.) This matter has taken approximately two years to resolve. The
emotional and psychological toll for two years cannot be ignored. The accusation that
the Grievant was AWOL had a negative impact on her professional standing. She
became difficult to work with and reduced her participation in Union activities. Her
depression and angry outbursts over a period of two years are symptoms of her
personal pain and suffering. Therefore, for the Grievant’s emotional and
psychological distress, as well as the negative professional impact caused by the
disciplinary 10-day suspension, an award of $15,000 in non-pecuniary damages is
granted.
AFGE and VA, McGuire Med. Ctr., Richmond, Va., 108 LRP 5011 (2008 Mayberry)
OBSERVATIONS AND
CONCLUSIONS
NEGOTIATONS ARE AN EXCELLENT ALTERNATIVE TO LITIGATION
ARBITRATION PERMITS SPEEDY, ALTHOUGH SOMEWHAT UNPREDICTABLE
RESULTS
ARBITRATORS CAN FASHION INNOVATIVE REMEDIES AND RETAIN JURISDICTION
TO RESOLVE IMPLEMENTATION PROBLEMS—A BROAD AND SPEEDY
ENFORCEMENT MECHANISM
FLRA APPLIES EEOC AND COURT DECISIONS TO STRAIGHTEN OUT SOME
ARBITRATORS’ ERRORS
COUNSEL FEE OPPORTUNITIES ABOUND FOR UNIONS
RESULT
Although many people and some in this group may look at the EEO complaints
systems and the EEOC hearing and appellate process as the primary means for
resolution of federal sector civil rights issues, the role of collective bargaining is often
neglected and too often arbitration is forgotten for what it was designed to be: a
parallel process of rights enforcement, costly in terms of the investment made in an
arbitrator, but often desirable given its relative speed, relative finality, choice of the
parties in the selectin of an adjudicator, and the relative informality of the process,
albeit a process that generally does not encompass discovery.
NOW YOU CAN
GIVE THE LABOR RELATIONS SYSTEM
A TRY
EXPERIENCE SOMETHING NEW
READ PETER’S BOOK ON ARBITRATION
TELL A FRIEND !

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