RETURNING TO A WORKABLE 7116(d) FORUM SELECTION ANALYSIS

Among the precedents the two Trump FLRA appointees destroyed was the Authority’s decades-long approach to objectively deciding whether a union can take “two bites at the apple.” This post is about how to get that reversed. The FLRA and courts have held for decades that the union could not use both the FLRA ULP and contract grievance processes to challenge an incident if (1) the ULP charge arose from the same set of factual circumstances as the grievance and (2) the theories advanced in support of both the ULP charge and grievance are substantially similar. The second element of that two-part analysis is reasonably objective. For example, if a union grieves a violation of a contract obligation to distribute overtime equitably and then files a ULP with FLRA charging the agency with unilaterally implementing a change in how it distributes overtime, those are different theories—and therefore previously permissible.  It was only where the grievance and ULP both claimed a statutory violation that the union violated 5 USC 7116(d).

Trump’s appointees dumped that workable precedent even though they acknowledged that the federal courts had upheld the long-standing two-part analysis as the correct reading of the law. They decided that going forward, FLRA political appointees could rule a grievance and ULP addressed the same issue when the issues in the two cases were substantially similar in their personal opinion, irrespective of whether there were common facts or theories. That deleted the objectivity of a theory comparison and replaced it with a bias-friendly, subjective, let-me-just-check-with-my-gut analysis.  They went on, under the guise of trying to be helpful to practitioners, to sarcastically offer that a “substantially similar” probe will be easier if practitioners look to whether the issues are “different in any meaningful respect,” or “derivative of” one another. (Dep’t. of the Navy, and IBPO, Local 800, 70 FLRA 512 (2018))  In other words, the law is whatever the current political appointees say it is because each of those measures is the epitome of subjectivity. (This was part of their Administration’s larger effort to move America away from having a government of laws to a government of appointee opinions.)

Here is why returning to the old standard is important.  Suppose a union filed a ULP with FLRA alleging anti-union reprisal because within hours of getting an employee-favorable settlement in an adverse action case the agency announced it would be investigating the employee for possible false statements in those settlement discussions. Then imagine that two months down the road the union files a contract grievance because at the end of the investigation the agency suspended the employee for her conduct in those settlement discussions. Can the agency argue the grievance is barred because the earlier ULP was a “substantially similar” claim? You bet it can under the Trump precedent, whereas the agency would not have a case under the prior precedent.  (See SSA and IFPTE, 71 FLRA 123 (2019))

Unions can keep their fingers crossed and hope that a case comes before a neutral committed-to-legal-precedent FLRA that reverses the Trumpian precedent.  But, even then a reversal of an arbitrator’s decision will not carry much weight with future FLRA appointees looking for payback on behalf of the political opposition.

Consequently, we suggest that one or more unions force the issue now by proposing to add the historical, pre-Trump criteria to the term contract. For example, it could propose the following:

Issues or incidents which can be challenged under the statutory ULP process or the negotiated grievance procedure may be raised independently under both unless (1) they arose from the same set of factual circumstances and (2) the theories advanced in support of both are substantially similar.

Proposing contract language that effectively takes away an agency’s case law ability to raise a defense against a union action is not new.  (The two-part test we borrowed from FLRA is “case” law, not “statutory” law.  In other words, those words do not appear in the statute.)  You might remember the FLRA decision holding it is negotiable to propose that an agency give up its case law right to raise both prongs of a covered by defense because that legal concept is only case law.

If a union proposed this, the agency would likely declare it non-negotiable as violating the Trumpian legal holding, sending the case on an unobstructed path to the FLRA and likely on to the courts.  Ideally, the courts would rule that not only is such a proposal negotiable, but also that the Trump reading of the law was wrong. That should make it much more difficult for future appointees to take revenge on unions and feds.

If unions do not set up such a case, whoever has the majority of the seats on the FLRA will have the final, unreviewable power to decide whether the union violated 7116(d) by filing separate cases. Courts will not be able to hold them accountable.