As time goes on it becomes clearer and clearer that it is only on a rare day that James Abbott can be called something as flattering as merely malicious.  Most of the time his contempt for unions and a government run by laws rather than grudge-lugging political appointees are his most prominent feature. We were reminded of that in NLRB and NLRBU, 72 FLRA 80 (2021), a February decision where he issued a dissenting opinion criticizing even his ultra conservative FLRA colleague, Colleen Kiko Duffy. So absurd was Abbott’s view of how the law should operate that it got us wondering whether he is vying for election as Grand Dragon of some local QAnon lodge and that we can soon expect an opinion from him blaming Bill Gates for the Bill of Rights and Hillary for democracy.  In any event, this NLRBU case was about when the filing of a ULP bars a union from also filing a grievance in the future on similar facts and vice versa. Here are the facts in Jimmy’s Abbs own dissenting words.

“Here, the Union submitted an information request for the FY 2018 Spend Plan, and then filed a ULP charge against the Agency for failing to provide the FY 2018 Spend Plan. In February 2019, the Union submitted another information request asking for the FY 2019 Spend Plan, and then subsequently filed the instant grievance concerning the Agency’s denial of its February 2019 request for the FY 2019 Spend Plan.”

Now most people would consider those to be two different events.  In fact, it would have been metaphysically impossible to include the 2019 incident in the 2018 ULP because it had not happened yet. Similarly, it would have been impossible to include the 2018 incident in the 2019 grievance because the grievance filing deadline would have passed long ago. But Jimbo ignored those nettlesome hurdles in working out his logic. Additionally, most people might ask Mr. Abbott what were the parties to do if the 2018 incident had already gone to hearing by the time the 2019 incident arose, e.g., reopen the hearing, assume the facts around both incidents were identical, ignore the 2019 incident, toss a coin, etc.?  James Abbott, Esq. offered no guidance on any of that showing the extreme lack of depth to his thinking.

Abbott wants to give the FLRA political appointees the power to ignore the fact that some workplace incidents, like these 2018 and 2019 information requests, are separate incidents under the laws of time, space and physics in favor of allowing the appointees to use their personal judgement to declare that they are so “substantially similar” that a ULP filed over one incident bars a grievance over a future incident.

So, for example, Jimmy expected the NLRBU union president to know that when he filed a ULP over the denial of the 2018 spending plan information request the substantially similar standard would bar a grievance not just over a 2019 request but also 2020, 2021, 2022, 2023, 2024, and on into the end of the century if some future political appointees considered those requests to be “substantially similar” to the 2018 request. Under Abbott’s view of the law, the answer is not found in the objective application of the law, but in the subjective view of the political appointee of the moment. And both LM parties would be left guessing when the similarity ended.

Fortunately, the other two FLRA members insisted on retaining the longtime standard that a ULP can only bar the filing of a grievance over the same incident, not a substantially similar one.  If you are worried about Mr. Abb’s mental health based on the laughable logic of this opinion, don’t. He is all there.  In all likelihood this is probably just him trying to show he can be more anti-union than Kiko-Duffy so he can get the one remaining seat on the FLRA once Biden appoints a second Democrat.  In other words, there is a good chance that this is not about the law or the million people who must live under it, but just about Jimmy.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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