WELL, THEY DID IT AGAIN AT FLRA
We’re not referring to Abbott and Kiko overturning yet another long-standing labor law principle, ruling against a union, nor even overturning an arbitrator. That is who they are and what the President expected of them when they apparently passed his notorious Loyalty-to-Trump test to get their jobs. Unlike James Comey, they were not about to get hung on loyalty to the law rather than a political leader and sect. No, our surprise is that these two issued yet another decision so filled with legal defects. In IBPO, 70 FLRA 512 (2018), they ruled that suddenly it violates law, specifically 7116(d), for a union to file a 7116(a)(5) ULP charge with FLRA alleging an agency unilaterally changed some workplace condition and also file a contract grievance alleging the agency also violated the negotiated contract obligation to bargain before making changes–if both claims involve the same set of facts. Up until they issued this change, the law allowed unions to do that for a long time.
Personally, we favor putting all our alleged violations into a grievance if the issue is important to the union, e.g., if there is back pay involved. We stay away from FLRA as long as possible. That avoids the FLRA GC refusing to even file a complaint—as happened to the union here, ceding control over how the case is argued to a FLRA GC attorney, or even waiting for Trump to appoint a new GC at FLRA so cases can be processed again. However, that does not mean the FLRA should be excused for this legally laughable, if not blatantly dishonest, opinion. Here are five reasons this latest Abbott-Kiko piece of work is wrong.
First, if an agency makes a unilateral change in violation of the statute as well as a negotiated bargaining obligation the union can file a grievance to get an arbitrator’s decision on both claims—statutory and contract. However, under the new Abbott-Kiko vision if the union pursues the statutory issue with the FLRA, it has to forfeit the right to an arbitrator’s decision on the contract claim because FLRA does not have the power to make grievance decisions. Forfeiture is a steep price to pay merely to take advantage of a right statute gives the union to get FLRA assistance. Prior to this decision, the union could file the statutory claim with the FLRA and grieve the contract claim. Often, an FLRA investigation would lead to a quick settlement and avoid the need for both parties to pay for an arbitration.
Abbott and Kiko did not explain why unions must suddenly pay this stiff price. They tossed out some unsupported gibberish about how allowing that would amount to giving the union two bites at the apple, but it doesn’t. As Member Dubester pointed out in his dissent, the two legal claims are decided on different grounds. For example, the agency can raise a covered-by and other defenses to an alleged 7116(a)(5) violation, but it cannot do that when a contract clause is allegedly violated. There may be two bites here, but it is of different apples.
Second, this new decision tells the LR community quite clearly that as of now alleged statutory and contract violations stemming from a unilateral implementation present the same issue and are bound by 7116(d)—at least until a court overrules this. But the new decision gives LR practitioners no guidance as to when similar alleged violations do and do not involve the same issue. For example, take the case of an agency unilaterally implementing a change in violation of statute and contract after also illegally denying the union information under 7114. The denial of information and unilateral change are both violations of 7116(a)(5). Does this new decision mean they are the same or similar issue? Is the union prohibited by 7116(d) from sending the statutory information denial to FLRA and grieving a contract violation based on unilateral implementation? We do not know, which is the problem every time Abbott & Kiko (aka The KA) feel the need to self-gratify by overturning precedent. Long-standing precedent provides stability and repose to the LR community; trashing precedent, especially without a well-founded rationale, creates uncertainly and federal financial liabilities. Practitioners will have to wait years before detailed new rules emerge from repeated litigation under 7116(d). Apparently, that is “efficient and effective government” so long as Abbott and Kiko get a personal thrill out of it or it can advance their chances of future Presidential appointments.
Third, if it turns out The KA is going to consider any and all kinds of 7116(a)(5) infractions to be the same issue, what about a case involving unilateral change issue (a 7116(a)(5) issue) and an act of retaliating against the union bargaining team for exercising its bargaining rights (a 7116(a)(1) issue)? Are those two claims the same issue because they stem from the same bargaining event and both fall under Section 7116(a), albeit different subsections? Could the union file the (a)(5) charge with FLRA and put the retaliation (a)(10 claim before an arbitrator? We used to know, but now we will have to guess and wait years for the litigation dust to settle because Abbott-Kiko have effectively said that whether two claims involve the same issue depends upon who is looking at them, rather a mechanical application of a tangible criteria.
Fourth, the decision reeks of intellectual dishonesty. The KA ruled that a claimed violation of a statutory and contractual bargaining obligation based on the same facts means the issues are the same. Yet, they also just overturned an arbitrator’s decision (70 FLRA 584 (2018)) ordering removal of a reprimand from an employee’s file because the arbitrator failed “to resolve the issue submitted to arbitration.” [Underlining added]. The formal issue was, “whether the Agency violated Article[s] 11 and 14 of the [agreement] when it issued [the grievant] an official reprimand . . . pursuant to FEMA manual I3310.1, Disciplinary/Adverse Actions Procedures.” The arbitrator found under that issue statement that the reprimand was a “bit too harsh.” So, on the one hand we have Abbott and Kiko ruling that an arbitrator operated outside an issue when he addressed the appropriateness of a penalty in a dispute over whether the reprimand was warranted under contract and regulation rather than the procedures of discipline. The underlying facts were the same but that was two different issues. On the other hand, now The KA considers claimed violations of a statute to be the same issue as a claimed violation of the contract when the underlying facts are the simply same. If you are confused, you are entitled to be. It sure looks like Abbott and Kiko are talking out of two sides of their mouth. It is going to be a cluster carnival for practitioners trying to administer the new precedent with any degree of certainty.
(But don’t take only our word for the intellectual dishonesty of the majority. Member Dubester’s dissent points out that the majority said its opinion was consistent with an Executive Order section that led to the current statutory section 7116(d). However, the Executive Order section they cited was changed years before the statute was passed. Is that sloppy lawyering or outright dishonest lawyering?)
Fifth, a good rule of thumb is that the more any judge, arbitrator, or other neutral uses loaded words to build a foundation for his/her opinion, the more likely it is that the opinion is classic crapola. Here, our two little Trump-ettes littered their decision with the term “forum shopping,” e.g., “By the plain language of the Statute, Congress clearly intended to discourage forum shopping, or the classic ‘two bites at the apple.’” It is a classic loaded term, striking instant revulsion in those who currently possess the power and fear losing any edge they have over those not in power. Opinion writers smear issues with that label in the hopes that readers will have a kneejerk reaction and not waste time questioning whether the characterization is true. Not surprisingly, the above-quoted Abbott-Kiko statement is untrue. The statute actually is loaded with provisions giving employees the right to shop for the right forum to fit their claim. In fact, 7116(d) endorses forum shopping by noting that employees have a choice. Section 7121(d-g) does the same thing and 7123 enables employees to go to court, at times, if they do not like the FLRA’s decision. The statute did not even bother to limit an employee’s right to choose which Circuit Court to go to when challenging FLRA, as it does when employees challenge MSPB decisions.
What is true is that in some places the statute discourages “two bites at the apple,” another smear label inviting readers not to think too deeply. Section 7116(d) does prohibit taking the same ISSUE to two different forums, but that begs the question of what is an issue. Section 7121 does the same with the MATTERS, raising the same question. However, in other places the law allows employees to appeal arbitrators’ adverse action decisions to MSPB or the courts; and cases with elements of civil rights discrimination and civil service legal violations get decided by both EEOC and MSPB. At best, the “two bites at the apple” judgment is an overstatement. But in no case is it a sufficient foundation for overturning decades of precedent.
The genius of Abbott and Kiko to date is that they are overturning long-standing precedents in cases that cannot or are most unlikely to be appealed to court. For example, their reading of 7116(d) in this case cannot go to court because it is based on a contract grievance. But that does not doom federal employees to having to live with it. All one union need do is make a contract proposal restating the 7116(d) right as previous Authorities and courts have interpreted it. When the agency declares it non-negotiable and The KA puts it fake legal logic all over it, the union can then go to court to see if the judiciary, whose jobs and career do not depend on Trump liking them, will side with them and return us to a law that operates by mechanical tangible criteria rather than the eye of the beholder of the moment.
The tragedy of this case is not that the Trump-ettes ruled against a union or overturned a long-standing precedent. The real damage comes from tossing out a precedent that was mechanically easy to administer and replacing it with a cloudy, “eye of the beholder” criterion that replaces the certainty and self-confidence that practitioners had before when making these decisions with guess-work and financial risk. So much for the statutory goals of stability and repose as well as efficient and effective government