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The Importance of Citing All Potential Claims in a Grievance

NATCA just recently received a decision from the FLRA involving an arbitration decision over a five-day suspension. DOT and NATCA, 0-AR-4378, 64 FLRA No. 110 (3/29/10). NATCA prevailed in the suspension and FAA filed exceptions over arbitrability and the remedy. The Authority upheld the arbitrator’s finding that the grievance was arbitrable (despite a reference to the 2003 CBA) and FAA did not challenge the merits of the suspension decision and back pay award. But, FAA also challenged the remedy, which ordered reinstatement of CIC and OJTI duties.

FAA suspended the grievant in 2008 citing failure to follow directions, inappropriate behavior, etc. NATCA grieved the suspension citing the Green Book generally, and “all other applicable rules, policies and procedures.” The issue in the grievance was “whether the suspension promoted the efficiency of the service, and if not, what is the appropriate remedy.” Part of the discipline included removing the grievant from CIC and OJTI duties (with a corresponding loss of pay). These duties and pay issues were considered part of the grievance and resolving them was thought to be covered within the request for “all appropriate remedies.” The parties addressed the CIC and OJTI duties as part of the suspension at the hearing, and the arbitrator found in her decision that the CIC and OJTI duties were removed without cause (like the suspension) so she ordered that such duties (and pay) be restored. The FAA then filed exceptions, claiming that the issue of CIC and OJTI duties was not included within the grievance and that these were discretionary matters within management’s rights so any order to restore such duties was a violation of management’s rights.

The FLRA agreed with the FAA and reversed the award related to CIC and OJTI duties. It stated that an arbitrator must confine the decision to the stipulated issues and related issues that are encompassed within the grievance. As a result, since the removal of CIC and OJTI duties was not specifically cited in the grievance, the FLRA determined that the arbitrator should not have addressed these disputed duties in her award or remedy. The Authority also claimed that NATCA and the arbitrator had not shown any substantial connection between the removal of the disputed duties and the suspension, and as a result, the arbitrator exceeded her authority by addressing those duties. Although this finding is not accurate, since NATCA proved that the duties were revoked as part of the suspension and were addressed as part of the remedy, the Authority seems to have faulted the arbitrator for not describing a closer connection of the two matters in her decision, and because the duties were not stated as a separate issue by NATCA in the grievance.

The FAA also argued that the arbitrator should not have ordered the duties reinstated in any event since that would violate management’s rights to assign work. The FLRA chose not to address that issue, however, since it disposed of the matter due to the procedural flaw in failing to raise it as a specific issue. Of note here: NATCA has pending grievances over the removal of CIC and OJTI duties in other cases. While initial “certification” for CIC and OJTI is a discretionary function by FAA, it is NATCA’s view that once an employee is certified, the employer cannot arbitrarily remove such duties without cause, and that removal of such duties arbitrarily can be challenged in a grievance. See NAGE, SEIU and VAMC, 40 FLRA 657.

There is one very important lesson here: To the extent that the union knows about or can foresee any issue that might be included in the grievance, it should specifically cite that issue in the grievance. “Catch all” provisions, like citing “all rules, regulations, and policies” or “any other remedy deemed appropriate” can be useful when it is unknown what other issues or remedies there may be. However, if facts or claims are known or suspected, it is best to include those issues specifically in the grievance, and then throw in the “catch all” phrases for anything else. It is also possible to amend a grievance or specifically raise a new claim as an issue at the hearing and attempt to have the parties agree about its inclusion or have the arbitrator specifically reference the claim at the hearing. If the arbitrator sufficiently discusses the issues both during the hearing and in the decision, that could cure a deficient grievance. The problem there, however, is that you never know how much or how little attention the arbitrator will pay to the particular issue or amendment. As a result, it is most prudent to include any and all specific claims and issues in the grievance initially. This does not mean that the grievance should fully explain the union’s “theory” of the case, or all possible contractual arguments. Rather, it means only that if there are specific events or actions that are being challenged, they should be specified in the issues statement. Otherwise, there is a chance those claims could be barred.