PIZZELLA ON BONDAGE

Back in 1997 the Authority declared that it favored automatically including employees in existing bargaining units if they shared a community of interest. It saw no need to force agencies and unions to undergo the multi-year costs, stress and litigation of running an election each time the agency hired new employees to do the same or similar work other unit employees were doing. Since that decision, three Republican appointees have joined in not only applying the law of that case, i.e., Cabaniss, Armenderiz and Beck, but expanding it to situations where an agency action places employees in a new organizational or geographic entity. (Before that, Applewhaite (5 FLRA 97) , McGinnis (17 FLRA 183), Mahone (14 FLRA 174), and McKee (39 FLRA 96), all Republican appointees, supported the earlier FLRA accretion positions that date back to the Executive Orders that Nixon signed.)  As a result, there are now about 30 cases applying the 1997 case, i.e. Ft. Dix, 53 FLRA 287, with about an even split between decisions supporting an accretion based on the facts and those opposing it. Member Pizzella, however, thinks everyone got it wrong over the five decades and he knows what they should have decided.

In NFFE, FD-1, IAMAW and GSA, Region 4, 67 FLRA 643 (2014) NFFE petitioned the FLRA to add 17 employees previously represented by another union, that had since renounced its rights to represent them, to its existing bargaining unit of the same kind of employees working for the employer. Pizzella, betraying his underlying distaste for unions, characterized the effort to accrete or automatically include the 17 in an existing unit as a “shotgun wedding.” He said he wants the employees, union and agency to demonstrate a showing of interest and an election victory before he would add them to an existing bargaining unit. This was based on his conclusion that, “accretion shares some of the same attributes of “agency shop” or “union shop” provisions that require employees to provide indirect support to a union as a condition of public employment.”

His two FLRA colleagues called that comparison “rash and wrong,” and a circuit court might call it more politely “without foundation,” but it strikes us more as the irrational ramblings of an obsessed, anti-union zealot. The only attributes federal accretion shares with a union or agency shop is that they are polar opposites. Agency and union shop provisions require employees to pay the union for the collective bargaining services they receive. In contrast, nothing anywhere on earth requires a federal employee placed in a bargaining unit, without or without a vote, to contribute a dime of financial support to the union. The employee gets all the collective bargaining benefits the union generates free of charge. In fact, that employee becomes a financial drain on the union because it must now listen to the employee’s complaints and represent the employee through arbitration, if necessary, without ever getting a cent from the employee. The disgruntled free loading employee can even become a thorn in the union’s side filing charges against it and leading efforts to have it decertified because as a unit member s/he now has standing that s/he did not before.

Not content with that false analogy alone, Pizzella circled back to the connection he sees between unit accretion and forms of female marital bondage stating, “That [accretion] seems about as fair to me as a divorce court ordering an abandoned wife to marry her brother-in-law – seven years after her husband abandoned her, simply because the brother-in-law asked the court for a marriage certificate – without ever asking her if she wants to get remarried, to her brother-in-law or to anyone else.”  These baseless analogies are a recurring theme in Pizzella’s work. For example, if there is a comparison between the accretion of employees and his disturbing brother-in-law fantasy the Chair envisions it would be that the brother-in-law (the union in this case) has offered to support and protect the abandoned wife (the accreted employees in this case) without getting anything in return—zero, zilch, nada. Aside from no obligation to pay dues, the accreted employee need not attend union meetings, talk to a union rep, refrain from testifying for management in an arbitration hearing, nor “embrace” the union in any way.

A second recurring flaw of Pizzella’s decisions is a tendency to invent facts. He suggested in this decision that the accreted employees are somehow being abused when he has no idea whether some or all of them asked the union to do this for them. There is nothing in the reported evidence on that.

But most upsetting for actual LR practitioners is that Pizzella shows no appreciation for the realities and complexities of a workplace.

• If the 17 employees in this case were forced to vote and voted against accretion would that mean he would allow them soon thereafter to vote in another union. If so, that would force the employer to deal with yet another union and NFFE to factor in the impact of a whipsawing second union on relationship and policy-making? If so, aaggghhhhh!
• Or, if the 17 employees were given the right to vote to be accreted to NFFE, would the existing NFFE employees have the right to vote against accepting them? If so, aaggghhhhh!
• Or, if the 17 employees were allowed to vote, would that open the door for an intervenor to get on the ballot? If so, aaggghhhhh!
• Or, if there needed to be an election, would the parties have the right to file ULPs, contest cast ballots, campaign, etc. If so, aaggghhhhh!

Those crises would be coming from both sides of the bargaining table. Pizzella’s dissenting thoughts show no consideration of the consequences his abandonment of this decade-old accretion policy direction would have.

Member Pizzella, like any appointee, can bring value to federal sector labor relations by thinking critically about the field on an academic level, not mindlessly mouthing a political mantra. He has five decades of FLRA case law and experience to work from and there undoubtedly are places the field needs improvements. If he focuses on the statute’s command to promote more efficient and effective government, which often means something that simultaneously promotes the interests of labor and management practitioners, he just might leave some value behind.