YODA, KING SOLOMON & ARBITRATORS

In my experience, most arbitrators see themselves as the fruit of a mythical, time-travel-assisted coupling of Yoda and the infamous baby-splitting King Solomon.  Their wisdom and power are, therefore, boundless.  Yet, they do not seem capable of lifting a  light saber, much less a circa 950 BC bronze one, to help themselves when their profession is threatened with extinction. During the last White House Administration, the President installed two political operatives at FLRA who focused their party’s political revenge efforts primarily on making arbitration useless for unionized federal employees. They did so by overturning over 100 arbitration decisions thereby voiding millions in employee back pay entitlements. They got away with it because in 99% of the cases they had the final word and there was nothing a federal court could do. Yet, as far as I can tell not one arbitrator, and certainly not any of their associations, tried to push back on this planned effort to neuter arbitrators and arbitration.

Unions have primary responsibility to fix this, but arbitrators also need to get in that struggle. They need to stand up for themselves as well as their vital role in employee-management relations.  There is no doubt that the next anti-union White House Administration will also roll out the same effort to render arbitration and arbitrators useless for feds—and more.

One option is to remain sensitive to the fact that if the union grievance includes an unfair labor practice charge, whether explicitly or by reference to a violation of law, to address the ULP issue even if the arbitrator believes it is unnecessary given their ruling that the contract was violated.  Courts have held that a union may appeal an FLRA reversal of an arbitration decision to the court if a ULP is involved. In those cases, the court can reverse the Authority’s ruling on any issue in the case, not just the ULP issue.  That would allow for a more intellectually honest administration of the right to take exceptions to an arbitrator’s decision. Check out NWSEO v. FLRA, 966 F.3d 875 (2020) for an example of how a court trashed the opinion of the two Trump appointees who themselves trashed an arbitrator’s decision.

Another option is to get behind the idea that if the FLRA overturns an arbitration decision then the union has the right to take the case back to the arbitrator to see if the alleged flaw in the initial award can be corrected.  After all, the law stipulates that the union is entitled to “binding arbitration.” (5 USC 7121(b)(12)(C)(iii))  If FLRA overturns a decision, it is not binding, which seems to justify the union’s right to return to the arbitrator.  There is no need for a formal FLRA remand order; the union is merely seeking an order that binds. Moreover, nothing bars arbitrators from declaring in their awards that they retain jurisdiction to reconsider the decision should the FLRA modify or overturn it.

Finally, arbitration associations need to speak up when Presidents nominate people to the FLRA.  Nothing but their own predisposition to remain unsoiled and above the fray stops them from declaring nominees insufficiently committed to upholding arbitration awards. Ideally, they can help demand that only experienced neutrals get appointed to FLRA positions.

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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