MADAME CHAIR, MEET MR. NEWTON
Sir Isaac Newton that is. We are suggesting this hook-up because you and your fellow Trumpian traveler seem to have forgotten about his third law of motion, namely, that for every action there is an equal and opposite reaction. Over the years we have noticed that political appointees from the House of Heritage-Koch all arrived thinking they would trash a few dozen FLRA legal precedents and everything would turn out the way they and their sponsors wanted. But, in the end, all they generally managed to do was to create a lot of costly L-M conflict with little substantive change and increasing amounts of procedural complexity. They wrongly assumed that the L-M parties would not adjust to get around their often vacuous attempts to make “Labor Relations Great Again” or something like that, e.g., such as you inventing the criterion that arbitrator penalties now have to be reasonably and proportionately related to the contract. (AFGE, 70 FLRA 398)
So, we called the Fedsmill board together for a brainstorming session to list all the ways your new decision will set things flying in many unintended directions like an amateur’s pool table break.
First, look for unions to start alleging a unilateral change ULP as the back-up charge whenever an agency decides a contract provision means something different than its wording and/or derivative practice show that it means. Unless you also overturn another precedent, agencies will not even be able to file exceptions alleging abrogation, much less “excessive interference lite,” then without also having to show that the policy/practice is one they would not have had the authority to institute and continue unilaterally. Our next post will show them how to do that.
Second, we predict unions complicate agency bargaining by demanding that whenever the FLRA overturns an arbitrator’s decision under the “excessive interference lite” test that the case is to be remanded to the arbitrator, as a matter of contract, to consider an alternate remedy. Or, maybe they demand that arbitrators have retained jurisdiction to and through the FLRA decision. In either case that should gut your plan to deny unions the change to perfect a remedy or seek an alternative. On behalf of the agency reps on our board we can tell you they think it is the “opposite of swell” that now their cases are likely to remain open for another two years or so, compounding any financial back pay liabilities the decision might ultimately carry. The same demand will probably require that the agency pay for all the costs of the second round of arbitration, if not reimburse the union for the first round as well.
In fact, watch out for the truly creative negotiators who soon come to the table proposing liquidated damages clauses for those times when an arbitration award is overturned for unacceptably intruding on management rights, particularly when the agency never declared the clause unenforceable at step one of the grievance.
Third, the instant the agency announces in the grievance process, arbitration hearing, or for the first time in post-award exceptions, look for unions to protect themselves by demanding to bargain over any new practice the agency wishes to implement. For example, if an agency declares in its exceptions brief that the shift assignment clause excessively interferes with its management rights, the union can demand to bargain at least I&I issues on any change to the clause or practice. That should block the implementation of an actual change until bargaining concludes and moot any potential damage that “excessive interference lite” can do. And as with any bargaining that gets off on the wrong foot, agencies will then get to deal with information requests, negotiability petitions, bitterness, etc. Of course, if the agency does not change its practice the policy/practice established by the allegedly intruding clause remains enforceable as agency established policy.
Tapping this third option will protect those unions that do not allege a unilateral ULP as part of their initial grievance or who did not see the “excessive interference lite” test coming.
Fourth, look for unions to protect themselves by using the magic words “The employer has determined” in connection with any important clauses—or perhaps the entire contract. That would insulate them from a decision that a negotiated clause violated their management rights. Three ground-breaking AFGE cases lay out how to do that, i.e. 46 FLRA 1590, 46 FLRA 1494, and 64 FLRA 532.
Fifth, agencies can now expect more morale-breaking concerted activity when you overturn an arbitrator’s decision using this new phony baloney test. It will not be hard for unions to paint agency leaders as unworthy of trust, respect, follow-ship, etc. when a contract clause plainly says something, a neutral confirms it means precisely that, the agency never declared the clause unenforceable, and you two nonetheless relieve the agency of its obligation using your “fake law” scheme.
We will be doing our part in the larger Newtonian retribution cycle by issuing more posts spelling out in detail how grievances, bargaining demands and other pushback documents should read to counter this decision and the ones you have been instructed to overturn by your political sponsors.