KIKO-ABBOTT RIP UP ANOTHER ARBITRATION AWARD
Continuing their campaign of overturning virtually any arbitrator award that dares to sustain a grievance, this dynamic duo of decisional dissembling has created yet another reasons for screwing over employees. Moreover, they did it without citing a single federal or private sector case as precedent for doing so after about 40 years of federal sector case law and about 80 of private sector law. In this new case, they stated an arbitrator does not have the right to deal with all the issues flowing from a remedy s/he imposed even if s/he formally retained jurisdiction over the rollout of that remedy. Kiko and Abbott believe that if the initially ordered remedy has been implemented, no matter how imperfectly, the arbitrator loses the ability to settle the parties’ dispute over the flawed implementation of the original remedy.
Here are the facts as FLRA reported them. In 2011, the Arbitrator issued an award finding that the Agency violated the parties’ collective bargaining agreement when it conducted a reduction in force. As remedies, she directed the Agency to reinstate previously terminated employees and make them whole. Further, she expressly retained jurisdiction over any remedial implementation disputes.
The Agency agreed to provide reinstatement‑eligible employees with backpay in several installments. The affected employees received all of the backpay to which they were entitled by the end of 2016. However, the Agency overpaid the grievants because it had miscalculated the amounts owed them. When the Agency discovered the errors, it initiated collection procedures to recover the overpayments, and the grievants asked the Agency to waive collection. The Agency denied those requests.
The Union then contacted the Arbitrator and asked that she exercise her retained jurisdiction from the 2011 award, characterizing the collection actions as remedial implementation disputes. In March 2018, a full seven years after her 2011 award in the RIF case, the Arbitrator issued an award finding that the Agency’s denial of waivers for the grievants was “clearly a remed[ial‑]implementation dispute” over which she retained jurisdiction. In April, the Agency filed exceptions to the award.
With the facts laid out, let’s turn to the absurdity of the Kiko-Abbott manifesto. Rather than permit the union to go directly back to the arbitrator who originally reviewed all the facts, applied the contract as well as law, and issued a legally correct decision, these two decided it would be better if the union
- filed a new grievance,
- chewed up agency time in a grievance,
- selected a new arbitrator,
- spent extra time in a hearing bringing him/her up to date on the previous development of the facts, and
- got a new decision.
If the union won the grievance and back pay was awarded, it then could have billed for maybe five times the attorney fees that it would have incurred if it just petitioned the first arbitrator to use her retained jurisdiction, which the agency never challenged after the original award, and get a ruling.
As if that is not ridiculous enough, the new rule cannot be easily implemented. The Kiko-Abbott rule is that if the remedy in the original arbitration case has been implemented then the arbitrator’s retain jurisdiction ends. There were six grievants in this case. Suppose the agency had fully implemented the original remedy, albeit defectively, for four of the employees but not the other two. Does the Kiko-Abbott rule mean the parties would use the arbitrator’s retained jurisdiction to settle problems for two of the employees, but have to file a new grievance over the other four?
Or suppose that the agency had not fully implemented the original award when the union petitioned the arbitrator to retake jurisdiction, but it did complete implementation before the new hearing. Does the arbitrator lose jurisdiction and the employees lose any chance to timely file a new grievance?
Or suppose that rather than overpaying the employees the agency had underpaid them by not correctly implementing the arbitrator’s back pay order? Would the original arbitrator have jurisdiction over that pay error on the theory that her original award was not fully implemented, but not have jurisdiction when it is incorrectly implemented another way?
Or suppose there is a factual dispute over whether the original award was fully implemented. Who settles that dispute, e.g., the original arbitrator, a new arbitrator, Ivanka?
We get it why political ideologues do not think about the practicalities of the ramblings they spew nor the thousands of practitioners who will have to trudge through the legal sludge. But that does not make it right.
Finally, as happens all too often in cases where Kiko & Abbott presume that they know more about arbitration than all the arbitrators who have done it for decades, this was not a case of simply doing technical harm to the union’s ability to get prompt, low-cost resolution of a dispute. The case involved six employees from whom the agency seized about $300,000.00, or about $50,000 per person on average. Now that the arbitration decision sustaining their grievance has been voided, it likely is too late for them or the union to put this case before another arbitrator via a new grievance. At least you can bet on that being the agency’s position. The employees will forever lose this money, no matter how unjustly, because Kiko and Abbott decided to create a new procedural rule that no one else in the history of labor relations has ever seen a need to do. Moreover, they did so when there was no harm to the agency because the case still could have gone to arbitration if filed the way Kiko & Abbott envision.
Maybe someone should file a Major Policy Request. It would be fun to watch Kiko & Abbott squirm their way through this mess to provide answers and perhaps see what a court had to say. Another option would be to put a bargaining proposal on the table and wait for the agency to rely on the Kiko-Abbott wisdom by declaring it non-negotiable. So long as the case does not go before one of the President’s recently nominated judge who still believes the world is indeed flat or that only Christians can be judge, that could get us out of this quagmire. Short of that, practitioners on both sides will now have to litigate case by case to answer the questions this decision left in its wake.
Check out U.S Agency for Global Media, 70 FLRA 946 (2018) for more details.