ARBITRATION’S MUTANT TURTLE
One of the prices we pay for the otherwise exquisite benefits of evolution is that every so often it runs amok and gives us things like body piercings, kale shakes, and the Honey Boo Boo show. So, we wanted to alert you to a budding mutation of the arbitration process that threatens to slow work-place justice to the pace of a three-legged turtle huffing Benadryl. It is called the “implementation meeting.” (IM) Normally, we never agree with FLRA Member Pizzella nor find what he writes in any way useful. But he recently lifted his nose from Barlett’s Quotations long enough to string together a sentence that while condescending is neither legally moronic nor pathetically pretentious. Writing about the impact of an arbitrator’s use of IMs on the dispute resolution process, the FLRA’s own resident Koch-ite noted, “The dispute began in 2002. Since then (if you are counting, that is fourteen (14) years), the case has been returned to Arbitrator Andrée McKissick at least thirteen (13) times and now returns to the Authority for the sixth time.” (See HUD and AFGE, Council 222, 69 FLRA 312 (February, 2016) Rather than completely resolve arbitration disputes or at least push them back at the parties to solve themselves consistent with clear instructions, the IM mutation settles into a labor-management host party and starts replicating its activity. Here is how it works.
Let’s start with the example of a union that finds an agency has been incorrectly calculating the waiting period for career ladder promotions for the last two years. As a result, a bunch of employees had their promotions delayed anywhere between one and six pay periods. Based on its strong suspicion and the allegations of maybe a half-dozen employees, but not any hard records or other evidence identifying everyone impacted or how they were impacted, the union files a grievance on behalf of “all impacted employees” asking for back pay and an order that the agency correct its calculation process in the future. When the agency says it needs more details, the union invokes arbitration, the hearing is held and the arbitrator rules.
This is where the mutation occurs. Most arbitrators would write–
1- the agency violated the contract rules for calculating waiting periods,
2- it is to correctly recalculate the waiting periods according to the arbitrator’s formula beginning with promotion delays occurring no earlier than 15 days before the grievance was filed,
3- it is to make the promotions retroactive and award back pay with interest, and
4- it is to cease and desist from improperly calculating waiting periods.
They might retain jurisdiction to clarify or interpret their order if the parties request.
However, the IM mutation results in decisions with additional words highlighted below in bold italics.
1- the agency violated the contract rules for calculating waiting periods,
2- it is to correctly recalculate the waiting periods according to the arbitrator’s formula going back as far as needed to correct all errors,
3- it is to make the promotions retroactive and award back pay with interest,
4- it is to report to the arbitrator every quarter on its progress toward implementing the corrective action with hard records it gathers for the union’s review, and
5- it is to prove to the arbitrator’s satisfaction that it is properly managing the waiting period calculation going forward so that no more employees are harmed.
In short, the arbitrator carrying this mutation imposes himself as a long-term inhabitant in the bilateral labor-management relationship. It is now a three-way where any expertise the parties previously had at resolving problems themselves is slowly eroded by the continuing intervention of the neutral.
Suddenly, the parties have “implementation meetings” a few times a year that generate new bills from the arbitrator–and potentially new attorney fee petitions from the union. At times, the IMs also produce an amended back pay order when the process uncovers a variation of the miscalculation error litigated at the original hearing and the arbitrator “clarifies” the original award. On top of that, rather than the union conducting the investigation on its own official time by requesting appropriate records under the particularized need or contract standard, the agency is tasked with doing all that for the union under an information disclosure standard and schedule the arbitrator imposed on the parties. The normal grievance process is turned on its head with the union free to merely make allegations to start a grievance and withhold identifying all grievants. The agency enters the hearing without a fixed issue to defend itself against, any prior notice of what facts might be lobbed into the record, or even a good idea of its liability. Ironically, even if the agency wanted to throw up its hands and sustain the grievance these grievances are so non-specific that the agency would not even know the details of the remedy it agrees to apply.
FLRA has not offered much help to the party looking to extricate itself from unending IMs. While it wisely allowed arbitrators to retain jurisdiction to clarify, interpret or clerically correct an award, it threw the barn door wide open when it also said they can retain jurisdiction to oversee the implementation of remedies. AFGE and NIH, 61 FLRA 725 (2006) Does that allow arbitrators to award themselves quarterly oversight conferences to see how implementation is going on past violations as well as any future ones—without any pending actual dispute needing resolution? Does it permit the “evolution” of the original award as new implementation facts come to light, e.g. a miscalculation of the waiting period due to totally different facts than addressed in the prior grievance? Does it permit them to issue rulings declaring an agency not in compliance with their award and imposing enforcement sanctions?
Consequently, when faced with an arbitrator’s open-ended retention of jurisdiction the objecting party should raise a number of objections via exceptions.
First, attempt to get FLRA to clarify what it means when it says arbitrators can retain jurisdiction to “oversee the implementation” of an award. It should not mean they have jurisdiction over any future violations of the clause they interpreted, nor that they can enforce the contract retroactively beyond the contractual filing period for a grievance, e.g., 15 or 30 days. Neither should it include the right to correct violations of the same contract provision based on a different set of facts. For example, if the waiting period calculation period facts before the arbitrator involved unintentional record-keeping errors, can he also order correction of deliberate errors such as penalizing an employee for FMLA or USERRA leave periods? Finally, any effort to “enforce” an award by imposing procedural or substantive sanctions exceeds their authority. Failure to comply with an arbitration award is a ULP issue, which is a very different issue than asking an arbitrator to interpret a contract provision, regulation or law.
Second, the objecting party should raise the closely-related and well-recognized “functus officio” defense to continued arbitrator intrusions. In its purest form, the doctrine prevents an arbitrator from reconsidering a final award–even if he retained jurisdiction over another part of the case, such as the remedy or attorney fees. See Dependent Schools and OEA, 49 FLRA 120 (1994). The federal sector’s most notorious functus officio case was AFGE and SSA, 29 FLRA 1568 (1987) where the Authority recognized two benchmarks of excessive arbitrator involvement. To begin, a line exists where an arbitrator’s award, “concerns the arbitrator’s own employment for what may be an extended period of time, impermissible self-interest requires his disqualification.” Another boundary marker is where the arbitrator’s order precludes the parties from filing other grievances over the subject matter of his/her award, e.g., requires that all disputes related thereto be brought to him or her. (See also DOT, FAA and NATCA, 64 FLRA 823 (2010))
Third, the objecting party should focus on precisely who was identified as the grievant in the original grievance and/or issue statement. FLRA prohibits arbitrators from granting remedies to anyone other than the recognized grievant. Of course, that becomes more difficult to enforce when the union not only lists several specific employees but also grieves on behalf of “all similarly impacted employees.” In that case, the exception should probably dive deeply into who was similarly situated as measured by the time, location, facts, etc. of the named grievants. Another wrinkle arises in the IM awards where the arbitrator potentially can drift beyond the boundaries of the original grievants. In that case, focusing on the wording of the initial grievance, issue statement(s), and award should enable the objecting party to anchor the neutral.
Fourth, objecting parties should watch for IM awards that not just tell the agency what result it is to reach, but also imposes the methods and means it should use to reach the end result. For example, if the arbitrator found evidence of waiting period miscalculations, he might order the agency to correct the error via a cease and desist order. But he could not tell an agency to purchase specific calculation software, schedule interviews with the grievants to review files, hire additional people to finish the job by a certain date, rent two new servers, and to assemble copies of various files to generate the back pay figure. When they start assigning work or identifying the methods and means with which the agency is to accomplish work they have likely crossed the management rights line.
When those and other recognized exception arguments have not worked, the objecting party has little choice but to turn to negotiations to fix the problem. It seems to us that the following could work. We have listed them in no particular order of preference.
First, reopen the term contract to clarify that arbitrators do not have the power to hold an implementation hearing, meeting or anything else other than when there is a fixed disputed issue between the parties that they have already thoroughly discussed and investigated between themselves. Contractually define the boundaries of this “oversight” that FLRA permits under law. IMs should not be opportunities for sweeping oversight nor for the parties to roll out new facts and arguments before one another for the first time. (A very tightly worded issue statement at the outset of the hearing should also go a long way to keeping an arbitrator’s oversight narrowly focused.
Second, reopen to fix or settle the particular grievance problem itself, e.g., the formula for calculating the career-ladder waiting period. Cut off future liability with a deal or at least by modifying the language of the problem clause so that future violations will require another arbitration.
Third, reopen to prohibit an arbitrator from retaining jurisdiction over a dispute beyond some objective point, e.g., for more than one initial award and two supplements, more than six months, or beyond some other measurable point. Let them know that they either resolve the problem quickly or they are gone. An alternative approach would be to deny them any new cases until they have closed out prior ones in which they have retained jurisdiction.
Fourth, reopen to limit any implementation meetings to telephone calls and the neutral’s reimbursement to an hourly fee. To the extent there is an economic motivation driving the arbitrator or the other party, limit it.
Retained jurisdiction is a critically important tool for arbitrators and the parties. Imagine if up to 500 employees were potentially harmed and due a monetary remedy unique to the facts of their individual situations. Unless the parties and arbitrator are free to focus on the facts of a few specific grievants to produce an interpretation and remedial formula or approach, they would have to parade all 500 potentially harmed employees through the hearing to identify their personal remedy. But like any tool, it can be abused, dragging a single case out for years or more than a decade. All during that time the harmed employees are without a remedy, which only underscores how unfair the IM potentially can be. A 14 year old case is almost a de facto admission that the neutral is failing. After all, the grievances are not about fully employing union, LR and neutral pros, but employees who were allegedly harmed. They deserve better.
If you would like to learn more about the anatomy of an IM, check out the string of AFGE and HUD cases that Pizzella referenced, namely, 69 FLRA 60 (11/4/15), 68 FLRA 631 (5/31/15), 66 FLRA 867 (2012), 65 FLRA 433 (2011), and 59 FLRA 630 (2004).
Nor should anyone think that Arbitrator McKissick is the only neutral doing this.