FLRA’S JAMES ABBOTT COMES OUT AS HYPOCRITE EXTRAORDINAIRE
A few days ago Jim Abbott, one of the President’s more dishonorable appointees, threw the doors open for all the world to see the hypocrite he is. Although he agreed with his colleagues on how a case should be resolved substantively, he went out of his way to criticize them for not providing the thousands of actual labor-management practitioners who must administer the law labor law with clearly written decisions. Here is what he wrote in a dissent; “I recently reminded my colleagues that the Authority’s decisions must be clear, concise, and easily understood by the federal labor-management relations community.” (DoD, DLA, and AFGE, Local 1992, 71 FLRA 729 (2020)) We could not agree more with the idea that FLRA pronouncements must be easily understood, but Jim Abbott has a long record of issuing some of the most unintelligible decisions in FLRA history and is the last person on the planet who should be leveling that criticism at others. Just look at the muddled decisions he has issued.
This section of the law states, “issues which can be raised under a grievance procedure may, in the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures.” For three decades the FLRA has given practitioners an easy to understand criteria for determining whether something is a discrete issue, i.e., if the ULP and the grievance “arise from the same factual circumstances and legal theories…” those are the same issue. For example, if an employee is passed over on the overtime list in violation of his contract right to seniority-based OT decisions and that was motivated by union animus, the employee could file a grievance to enforce the contract right to seniority and a ULP with FLRA to pursue the animus charge.
But Jim Abbott has muddled the clarity of that criteria by replacing it with a bunch of loaded, ambiguous words that will make it a crap shoot when practitioners try to apply 7116(d). Mr. Clarity wrote:
…this argument is no different in any meaningful respect than the arguments made in the earlier-filed ULP charges by the Union because the contractual claim is a derivative of the statutory claim…. While the Union’s earlier-filed ULP charges make no mention of contractual bargaining rights, the issues are nonetheless substantially similar to the alleged violation of the parties’ agreement.”
Now, rather than simply check to see if the legal theories are the same, parties have to peer into their crystal balls to decide whether the two cases are “different in any meaningful respect,” “derivative of” one another, or “substantially similar.” (Dep’t. of the Navy, and IBPO, Local 800, 70 FLRA 512 (2018)) That is Jim Abbott’s idea of an easily understood decision.
Temporary Promotion Grievances
One of the more common supervisory infractions involves an employee being assigned a substantial chunk of work that is above his/her pay graded. When it happens, unions usually claim the employee was effectively detailed to a higher grade and deserves a temporary promotion to that grade for the time the work was assigned. For decades agencies scrambling to defend a supervisor alleged that such a grievance involved a classification matter and therefore could not be grieved under the law. Before Jim Abbott was given any power, practitioners need only follow this FLRA criteria:
Where the substance of a grievance concerns the grade level of the duties assigned to, and performed by the grievant, the grievance concerns the classification of a position within the meaning of § 7121(c)(5) of the Statute….Where, however, the substance of a grievance concerns whether a grievant is entitled to a temporary promotion under a collective bargaining agreement by reason of having temporarily performed the duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5) of the Statute. (See Dep’t. of the Navy, 42 FLRA 795 (1991))
In other words, where the grade of the assigned work was not in doubt—perhaps because it was previously done by a higher-graded co-worker before she went on maternity leave—and the union was not asking for a permanent change in the grievant’s grade, but merely a temporary limited to the period of time the supervisor assigned the higher graded work, the matter could be grieved.
But once Jim applied his alleged commitment to producing a clear, easy to understand criteria the union now …
must offer evidence that: (1) an agency expressly reassigned a majority of the duties of an already classified, higher-graded position to a lower-graded employee, including all of the grade-controlling duties of that position; (2) the reassigned duties were different from the duties of the lower-graded employee’s permanent position; (3) the duties were not assigned to meet an urgent mission requirement, to give the employee experience as part of an employee development or succession plan, or for similar reasons; (SBA and AFGE, Local 3841, 70 FLRA 729 (2018))
Now under Abbott’s allegedly cloud-free approach unions must produce evidence about the manager’s motivation, if any, for moving the work, e.g., was the work “expressly assigned” or moved over the employee through some sloppy managing that ignored the grade of the work. Abbott offers no explanation for why that should matter. The law like every law, turns on whether it was violated, not whether the violator meant to do it.
The union’s next task under the Abbott rule—and this is truly ludicrous—is to litigate the classification of the position by dragging the arbitrator into determining what the grade controlling duties were. Up until Abbott arrived every other FLRA tried hard to keep the arbitrator out of make classification decisions. (Note: OPM regulations only require the grade controlling work amount to 25% of an employee’s duties, not the majority that the Abbott rule requires.)
Finally, Abbott now wants arbitrators to judge whether the reassignment of the work was not only related to a mission requirement, but whether that requirement was “urgent” enough in the arbitrator’s opinion rather than management’s. Again, he offers no explanation as to why urgency matters or whether it works for or against the employee’s claim for a retroactive temporary promotion. It is also worth noting here that while Abbott wants the parties to determine whether the work was “expressly reassigned” under the first criterion, he circles back to the issue again in the third criterion by asking them to address reveal the reason for the “express reassignment.” Jim’s so-called new and improved criteria is nonsensical and intrudes on management rights.
Changes That Are Negotiable
The right-wing, anti-union folks of this country want to restrict the mid-term changes that the agencies must negotiate over. Statute requires them to negotiate over “conditions of employment” which is defined as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions” The previous FLRA and the U.S. Court of Appeals decided that “working conditions”—just like personnel policies and practices–are a kind of “conditions of employment” and therefore there is no reason that one is negotiable and the other is not. The unstated rule was that if something changed in the workplace and it was more than de minimis the agency was obligated to negotiate over it. There was no need to expend brain power trying to distinguish between “conditions of employment and working conditions or embark on decades of litigation to determine what constitutes a working condition, but not a condition of employment.
But Jim concluded that approach missed the “clear, easy to understand” difference between the two that he saw. It was so clear that it took him 10 paragraphs to explain why it was so clear, but in not one of them did he include for practitioners actual examples of the difference nor objective criteria for distinguishing them so that practitioners have even a remote chance of applying the thing he sees in his mind to day-to-day decisions. DHS, CBP and AFGE, Local 1929, 70 FLRA 501 (2018)). Maybe we should call him Jumble Jim based on this kind of thinking
Arbitration is nearly worthless if the arbitrator cannot order the violating party to fully compensate the party it injured. That is the reason why the courts and previous FLRA decisions issued under Presidents of both parties have long written that arbitrators have “great latitude in fashioning remedies.” Dep’t. of the Air Force, Ga. and AFGE, Local 987, 25 FLRA 969 (1987) That legalese means that the reviewing official had better have a really, really good reason for rejecting an arbitrator’s remedy—not just an alternate perspective. Under that standard, FLRA and the courts have refused to reverse or modify arbitrator decisions that ordered ten or more years of retroactive overtime amounting to hundreds of millions.
But Jim Abbott, allegedly in the name of clarity, has decided the Supreme Court and all the other judges operating under it were not clear when they imposed that standard. Jim believes he knows better than seven decades of judicial decisions by others. Consequently, when an arbitrator ordered an agency to reimburse and employee for a year’s worth of overtime they denied him, Jim overturned the decision by changing the standard. Rather than giving the arbitrator great latitude, Jim created a new rule, I.e., “whether the Arbitrator’s remedy reasonably and proportionally relates to the violation.” (DOJ and AFGE, 70 FLRA 398 (2018)). Given that the reasonableness and proportionality of anything is a TOTALLY subjective judgement, Jim has put himself in the position to reverse an arbitrator anytime he would like to see a different remedy. Stated differently, he just took away most of the value of arbitration for federal employees because unlike Jim’s power to reverse arbitrators, no court in the land is permitted to reverse Jim Abbott gutting of an otherwise legitimate arbitration award.
The Bottom Line
Jim Abbott has less concern for easy to understand FLRA decisions than a certain top government sponsor of his does for truth related to anything ranging from tan lines to trysts. Jim is lying to us. Indeed, his decisions are often anything but clear and easy to understand. They force practitioners on both sides of the table to gamble when they try to apply them. There could not be a better example of hypocrisy at work than Jim Abbott as he goes twirling through his FLRA duties.
Why does he do it? There are a few likely answers, e.g., he is doing it to get a better job from his political sponsors, he is doing it to hurt people who do not vote for his political cult, he is doing it to satisfy a deep sense of self-loathing about other elements of his life, etc.. Who knows? But what we do know for sure is that each one of his efforts to clarify the law has made it easier for politically appointed reviewing officials and judges to overturn the decisions of arbitrators who are hired by the mutual agreement of the parties because they are good at applying the law as written, not as some party boss wishes it had been written. Jim Abbott is fundamentally about undermining a “government of laws” and replacing it with a “government of men.”
In his dissenting opinion Jim quoted Confucius to add an air of academic legitimacy to his criticism of his colleagues’ writing clarity. So, we thought that given his obvious interest in quotes from dead people we would give him a couple to ponder.
- The true hypocrite is the one who ceases to perceive his own deceptions, the one who lies with sincerity. Andre Gide.
- The hypocrite despises those whom he deceives, but has no respect for himself either. William Hazlitt.
Is that clear enough for you, Jim? It is clear to us that you are nothing more than a political operative devoid of any judicial temperament. You are here to gum up and gut a law no matter how big a mess it leaves government in.
P.S. Some readers might be wondering why we did not criticize the FLRA Chair, Colleen Kiko, for signing off on virtually everything Jim decides. The simple response is that she did not issue the dissent demanding clarity and in fact the dissent Jim Abbott issued was leveled at her as well as Ernie Dubester. The fact that we think little of her intellectual firepower had nothing to do with the decision.