HOW UNIONS CAN TAKE TWO BITES OF THE APPLE

There has been a lot of litigation over situations where a union has filed a ULP charge with FLRA over an issue and soon thereafter filed a grievance over the same issue.  Most of the disputes have focused on what constitutes or defines an “issue” as that word is used in Section 7116(d) of the statute.  It prohibits taking the same issue to the two different forums. Thanks to some deeply muddled and malicious thinking by Jim Abbott and Colleen Kiko-Duffy that question of the law is a mess for practitioners—but great for political appointees with a personal agenda. However, a new FLRA decision reminds us how unions can avoid the litigation “issue” trap to challenge an agency personnel action before FLRA and through the grievance procedure simultaneously.

In AFGE and Dep’t. of Veteran Affairs, 73 FLRA 581 (2023), the Union filed a ULP charge alleging the agency violated § 7116(a)(1) and (5) of the Statute because it changed a “past practice of a required Agency interview method/practice known as performing performance-based interviews” without giving the Union proper notice and an opportunity to bargain.  For remedies, the ULP charge requested status-quo-ante relief and an opportunity to bargain.

Subsequently, the Union filed a grievance on behalf of certain named employees whom the Agency interviewed, but did not select, for the position.  Like the ULP charge, the grievance claimed that the Agency changed a past practice of conducting performance-based interviews.  However, unlike the ULP charge, the grievance alleged that the Agency violated:  a memorandum of understanding regarding performance‑based interviews; two Office of Personnel Management guides; § 7116(a)(7) of the Statute; and “[a]ny and all other relevant articles, laws, regulations, customs, and past practices not herein specified.”  For remedies, the grievance requested:  step increases for the grievants; “suitable compensation(s) and any other remedy the [A]rbitrator deems necessary to make the [grievants] whole”; and “[a]ll attorney legal fees and expenses incurred and any other remedies appropriate[].”

The agency filed a motion with the arbitrator of the grievance asking her to dismiss the case as violating the 7116(d) prohibition against filing in two forms.  The arbitrator agreed, although she never addressed the union’s argument why this situation qualified as an exception to the core 7116(d) prohibition against taking two bites at the apple.  She dismissed the grievance because it and the ULP arose from the same set of factual circumstances:  the “Agency’s use of group interviews for” promotions to the position. (That is a horrible test that practitioners can never apply with predictability and FLRA should return precedent to the traditional, pre-Trump test ASAP. But let’s get back tom why the union said this situation was an exception to 7116(d).)

When FLRA took a look at the union’s exceptions, it wrote that,

“In order for a ULP charge to bar a grievance under § 7116(d), (1) the issue which is the subject matter of the grievance must be the same as the issue which is the subject matter of the ULP; (2) such issue must have been earlier raised under the ULP procedures; and (3) the selection of the ULP procedure must have been in the discretion of the aggrieved party.”

That third criterion is the key here. In determining whether the selection of the ULP procedure was in the discretion of the aggrieved party, the Authority has held that the aggrieved party is not necessarily the filing party.  For example, the Authority has found that where a union filed a grievance alleging harm to a bargaining‑unit employee, the employee, not the union, was the aggrieved party.

Additionally, the Authority has found that one factual situation can give rise to more than one aggrieved party.  The Authority wrote, “In this regard, the United States Supreme Court has recognized that § 7116(d) would treat as distinct aggrieved parties:  (1) ‘a union in its institutional capacity . . . [seeking] to enforce its own independent rights’; and (2) an employee seeking ‘to enforce his own individual rights’ based on ‘the same factual situation.’”

Given that the ULP charge did not name the grievants or any other bargaining-unit employees, and it did not allege any violations of individual employees’ rights, FLRA found that the Union was the aggrieved party in the ULP charge.

By contrast, the Union filed the grievance on behalf of the individual grievants and requested remedies for those grievants.  The grievance did not allege any violations of the Union’s institutional rights or request any remedies that relate to those rights.  As such, although the Union filed the grievance, FLRA found that the grievants were the only aggrieved parties at issue in the grievance.

The Authority reversed the arbitrator’s ruling and sent the case back to the parties to move to arbitration.

Before closing, we want to thank Member Colleen Kiko-Duffy for resisting her tendency to omit key words from Supreme Court excerpts in order to totally reverse the Court’s ruling.