AREN’T ABBOTT & KIKO CUTE?
Reading a recent decision by these twinkling Trumpettes, reminded us of the four-year old who denies he has been eating candy even though his faced is smeared with chocolate. The adults in the room invariably struggle to suppress broad smiles despite the bold-faced lie. In this new Abbott and Kiko decision they boasted that they changed the 7116(d) rules about when a grievance and separate FLRA ULP can be filed dealing with the same matter in order to “CLARIFY” precedent. Taking the readers on both sides of the L-M table to be idiots, they then reviewed how they abolished the existing objectively triggered criteria in favor of such clear-as-mud criteria as when the two cases are “substantially similar,” one is a “derivative of” the other, and they did not differ “in any meaningful respect.” (See Dept. of Education and AFGE, 71 FLRA 516 (2020)) If you think those three criteria make things clearer for either the union or management reps, stop reading now. There is no hope for showing you that the criteria were changed solely to permit whoever is in charge of the FLRA to overrule the arbitrator if they do not like the bottom line of the award, e.g., did the neutral award back pay or any other tangible remedy.
Prior to these two political bag carriers “clarifying” the criteria, there was a fairly objective test. For years, the Authority ruled that a grievance and a ULP charge involve the same issue when they arise from the same set of factual circumstances and advance substantially similar legal theories. If one aimed to enforce a contract or regulation and the other was based on an alleged violation of one of the statutory unfair labor practice provisions, they could both be filed. It was real hard to improperly apply those criteria. (See AFGE and Dept. of Justice, 68 FLRA 573 (2015)) In fact, it is hard to think of how that could even be legitimately “clarified,” which is probably why the U.S. Court of Appeals blessed that two-part test.
Ironically, in this new decision, Abbott and Kiko do refer to legal theories again in an obvious attempt to create an appearance that there is something other than political perspective driving their decision. But they totally changed the meaning that the expression “legal” theories” had for years under the prior precedent, making it useless as an objective test.
Personally, we believe that filing a ULP with FLRA these days is like feeding it directly into a shredder. Our rule of thumb is to raise both the contract violation and the statutory ULP in the grievance process where we control whether the case goes to hearing. But for those of you who want to continue to file both a grievance and FLRA ULP over even remotely connected circumstances we offer this advice. File the grievance first. That protects the employee and union in case FLRA never does a thing with your ULP charge or dismisses it outright. Second, ignore the Kiko-Abbott test. If the two cases are based on different legal theories, march on. Someone is going to have a case that goes to court and overturns the grime-obscured, Kiko-Abbott political control “clarification.” Hopefully, that will be one of many judicial decisions that wash away the mess these two duplicitous hacks have created for practitioners.