RETURNING TO A WORKABLE 7116(d) FORUM SELECTION ANALYSIS
What if you want to file a grievance and a ULP with FLRA over the same incident? For example, suppose you want to challenge a member’s suspension as a violation of the contract and an act of union animus. For decades there were clear, objective rules for when you could do that. During the last President’s anti-union administration, they were replaced with a totally subjective, eye-of-the-biased-beholder process. It is time to restore the more predictable rules for practitioners, but the question is how given that the legal question only arises in the normally unappealable arbitration exception process. Here is our suggestion.
Pursuant to 5 USC 7116(d), the FLRA and courts have long held 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 very objective. If a union grieves a violation of a contract obligation to bargain mid-term management changes before implementing them, and then files a ULP with FLRA charging the agency with violating the statutory obligation to bargain, that is within its rights because those are different theories. 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 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,” 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 larger effort to move America away from having a government of laws to a government of appointees.)
Unions can keep their fingers crossed and hope that a case comes before a neutral FLRA that reverses the Trumpian precedent. 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 if the factual circumstances of the challenges are different or the theories advanced under the ULP and grievance challenges are different.
Proposing contract language that effectively takes away an agency’s case law or even statutory right to raise a defense against a union action is not new. 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. Similarly, cases addressing the idea that the union can negotiate for a contract obligation to bargain in addition to the statutory right to bargain provide a basis for such a proposal.
If a union proposed this, the agency is likely to 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 anti-union political appointees to take revenge on unions and feds.
