EDITORIAL– BRAVO, FLRA, BUT NO ENCORE CALL YET
We all owe the trio of Members Pope, Beck and Dubester a long and loud round of applause for what they accomplished the last two years. It would be only a slight exaggeration to say that they pulled federal sector labor-management relations out of the dark ages and into an age of enlightenment. OK, maybe that is a little more than a slight exaggeration. So, let’s look at the hard facts—starting with the alleged dark ages, which are also known as the Cabaniss years.
Dale Cabaniss chaired the FLRA for many years thanks to President George W. Bush, who will never be remembered for the competence of his appointees. Here is why we label Cabaniss’ time atop the FLRA its dark ages. Courts overturned her decisions at a record pace, federal judges from her own political party publicly ridiculed her approach to the law, she was unable to fill key positions, and she slowed FLRA output to the proverbial snail’s pace.
In a two-year period from 9/1/05 to 9/1/07, during which Dale Cabaniss chaired the FLRA, the Authority issued about 170 decisions. While backlogged cases stacked up everywhere, Dale’s only noticeable response was to blame Carol Waller Pope, the Democratic FLRA member, for the slowdown. She did this even though it was Dale who was the Chair, Dale’s party that had the majority of FLRA votes, and Dale who hired the FLRA staff.
When Dale abruptly resigned to return to the political protection of life as Republican Senator’s staffer, it fell to her successors to not just return the Authority to its typical production rates, but to clean up the wreckage she left behind. Chairman Beck, Dale’s Republican replacement, got the effort started professionally and after a very short period of time the same Carol Pope turbocharged the Authority’s output, especially when President Obama added Member Dubester. In the two-year period between 9/1/09 and 9/1/11, the FLRA issued almost 450 decisions, which equates to a productivity increase of about 260%. Bravo, hip-hip-hurray, and congratulations to them.
But it is not yet time to scream, “Encore!” The Authority needs to do even better. The MSPB regularly turns out over 600 decisions in a single year, leaving us to ask, “Why not FLRA, too?”
Here are some obvious options FLRA is not exploiting:
Most importantly, it should expedite cases that potentially involve back pay. Dale’s Cabaniss’ leadership cost the government tens-of-millions by letting cases, where arbitrators had awarded back pay, linger in the exception process for years. Her interminable delays turned million dollar back pay cases into tens of millions. She never seemed to understand that the FLRA potentially saves the government money when it resolves these cases fast—even if the agency has to pay something. FLRA could do an even better job by establishing a rocket-docket process that moves them to the head of the line and out the door in 60 days. Why not? How tough would it be to announce that if an arbitration exception decision involving back pay is not decided in 60 days that the exception is denied?
Beyond that, while we applaud the Authority’s use of short-form decisions to dismiss exceptions without arguable merit, why take the time to do even that if the case cannot be appealed to the courts? Can’t the Executive Director be empowered to telephone or e-mail the parties to inform them that the members rejected the exceptions and ask the parties to withdraw rather than force the production of a decision? Or, if parties need paper, send them a one-liner from the XD after the call?
A third option is to help the parties self-assess the merits of an appeal. Yes, we know there are thousands of decisions explaining what it takes to file successful exceptions to an arbitration award. But, apparently they are not doing the job. Maybe they are not reader-friendly to the community of practitioners without law school training; maybe practitioners do not want to take the time to read them. Who knows?
It is time to try something more, and an obvious option is to create a self-assessment tool for parties to pre-judge the success of their case before they file exceptions. For example, here is what FLRA typically says when dismissing exceptions alleging the arbitrator’s award violated management rights:
There is no evidence in the record that the Agency raised its management rights arguments before the Arbitrator. Moreover, the record reflects that the Agency could have made these arguments below. The Union presented its proposed remedy — that the Agency conduct a mock recreation of the reshaping process to identify which employees would have been selected for reassignment if a pool “coextensive with the area in which the vacancy existed” had been properly determined — before the Arbitrator. The Agency was therefore on notice about the issue to which the Agency now objects on management rights grounds. Consequently, the Agency could have presented its management rights arguments to the Arbitrator, but did not. Accordingly, we dismiss the exceptions under § 2429.5. See Customs & Border Prot., JFK Airport, 62 FLRA at 417 (Authority will not consider arguments raised for the first time in exceptions).
Perhaps it would help to post on its web site a self-assessment tool worded something like this:
If the agency’s exceptions allege that the arbitrator’s award violates its management rights, can the agency show that it raised the management rights objection to the arbitrator? If not, do not bother to file exceptions, unless the agency can show that the union never presented or described the objectionable remedy in the grievance or arbitration. If the agency cannot, do not bother to file?
While no one expects FLRA to reduce the law to a series of calculations, FLRA should take advantage of the thousands of decisions it has issued to create some algorithms. More and more of our modern organizations use them. Why not FLRA?
A fourth option is harder than the rest. FLRA could look at the areas that continue to produce extensive litigation to find a way to simplify those areas of law. There is no reason why particularized need, covered-by defenses, excessive interference/abrogation, the acquiescence act of past practice, and about a half-dozen other issues should be allowed to confound the labor-management community and generate litigation spin-offs like a top-selling sitcom. Yes, we all know that the circuit courts are an unpredictable lot, but loudly declare the critical need for simplicity of operation and bull your way through to the Supreme Court, if need be. The last time the Court faced the question of whether to follow the FLRA or a circuit court, it very powerfully endorsed the right of the FLRA to lead. It and all other courts should be reminded regularly of this.
As we have recognized, the Authority’s function is “to develop specialized expertise in its field of labor relations and to use that expertise to give content to the principles and goals set forth in the Act,” and it “is entitled to considerable deference when it exercises its special function of applying the general provisions of the Act to the complexities’ of federal labor relations. NFFE, Local 1309 v. Department of the Interior and Federal Labor Relations Authority v. Department of the Interior, 119 S. Ct. 1003 (1999)