NTEU’S “ALVARA-RASSENFOSS” DILEMMA
One thing that distinguishes NTEU from almost every other multi-local union operating in the federal sector is that the decision to arbitrate a case in any unit is made by NTEU’s National President, the highest officer in the union of 150,000+ employees and over 230 locals spread across more than 30 federal agencies. One reason for that kind of control is to ensure that precedents set by arbitrators that often impact tens of thousands of employees in a single unit are carefully chosen to maximize the chances that the union will get the precedent it wants. Centralizing the arbitration invocation decision prevents two locals from taking conflicting theories to different arbitrators, arbitrating out of an emotional commitment rather than a strong set of facts, adopting a legal position with short-term gain but long-term disadvantages. etc. But is simple centralization in one person enough to fully protect members from bad case law precedent developing?
In fairness to other multi-local unions, such as AFGE, NLRBU, and NFFE they also usually make the decision to arbitrate somewhere above the local, perhaps at the council or area VP level. But those systems also present the same dilemma, namely, what can the union do when a unit employee decides to bypass the union and use a private attorney or even take the case himself to MSPB, EEOC, or FLRA? Similarly, what is the impact on a union when a local officer decides not to represent an employee who has a case that has the potential to create bad case law precedent?
We are calling this the “Alvara” dilemma because a very recent MSPB decision by that name shines a bright light on what the current centralized arbitration decision-making processes do not address, namely, cases not controlled by the union. Alvara used a private attorney to take a case to EEOC and MSPB, resulting in a bad case law precedent for his 18,000 co-workers. (See“MSPB Recklessly Denies CBP Officers Disability Rights.”As unfortunate as the Alvara precedent is at least he hired a skilled attorney to represent him.
The “Rassenfoss” part of this dilemma’s label comes from an even more recent case where another NTEU IRS bargaining unit member represented himself before MSPB on a USERRA question. (See Rassenfoss, 2014 MSPB 68 (2014))In the process he managed to generate a case which presents a major legal question, namely, must OPM USERRA regulations be consistent with Dept. of Labor USERRA regulations. If they must be, Rassenfoss and other federal employees will benefit; if not, they all lose an important benefit. (The precise question involves whether IRS owes Rassenfoss a retroactive QSI. The case turns on the interpretation of the NTEU collective bargaining agreement and IRS regulations; unfortunately, Rassenfoss had no one from the union testify to rebut what the IRS HR specialist said the contract meant.) It bothers us that Alvara and Rassenfoss are now solely in charge of what arguments to make, compromise positions to take, settling the case, etc. Shouldn’t a union that recognizes a need to centrally orchestrate the case law precedent coming out of arbitrators, or even administrative agencies such as MSPB, FLRA, EEOC, etc., also try to shape those precedents as well. (We have no idea whether the Alvara or Rassenfoss asked NTEU to represent them or whether the union turned them down, but that is not the point. The point is that a harmful precedent was set without representational involvement of the union. The fact that this happens even in the union best structured to control the development of precedent means it is a problem for virtually every union.)
The purpose of this post is simply to call attention to this reality and to suggest that unions give some thought to how to deal with it. One idea would be to negotiate a contract provision obligating the agency to notify the union of any case in which a bargaining unit employee is taking the agency to a hearing or other precedent-setting forum, e.g., EEOC, FLRA, MSPB, OPM, etc. The union would need the name/case number, adjudicating agency, date of the appeal, and overview of the issue. That would position it to decide whether to offer its services to the employee, independently intervene, or simply submit an amicus brief—for or even against the employee’s position.
Another approach would be that when a local refuses to recommend an employee’s case for arbitration, especially on involving federal regulation or statute, that the local collect and share the details of the case with a higher-level staff expert in a position to spot potentially troublesome cases, e.g., the General Counsel’s office.