Davis-Monthan Air Force Base and AFGE Local 2924

Wednesday January 20, 2010

In a recent decision, Davis-Monthan Air Force Base and AFGE Local 2924, 64 FLRA No. 57 (2009), the FLRA held that the Air Force committed an unfair labor practice by repudiating a collective bargaining agreement when it discharged employees who tested positive for drugs in contravention of contract provisions which provided that employees would not be removed while they were undergoing drug rehabilitation.

Most significant is the FLRA’s ruling that the remedy should include make-whole relief, including reinstatement, for the individual employees who were named in the ULP complaint as well as a notice and posting. This decision reverses a long-held assumption that 5 U.S.C. Section 7116(d) precludes the FLRA from offering individual adverse action relief to employees to correct disciplinary actions which could have been appealed through a negotiated grievance procedure or to the MSPB.

In this decision, the FLRA held that section 7116(d) did not prevent it from considering a remedy for the discharged employees observing that “the purpose of ULP remedies is to restore as far as possible, the status quo that would have obtained if the violation had not been committed.” The FLRA stated that because the remedy for the individual employees flowed from the institutional claim of contract repudiation—and not from the employees’ individual claims--there was no inconsistency with section 7116.

This decision represents an important victory for unions and federal employees. However, because of the significance of this victory, we expect that the Air Force will appeal the decision to the Court of Appeals.

The full decision can be found here: http://www.afge.org//Documents/2010_01_11_13_59_10_AFGE_VS_USAF_v2.pdf