ARBITRATOR’S ALERT: FLRA BUILDS A BIGGER TRAP FOR ARBITRATORS
President Trump has installed his two operatives on the FLRA and they have set about deciding what they consider to be “fake law.” Among their first moves was to make it easier to overturn arbitration awards—unless arbitrators write them a certain way. Here are the legal background, the simplified facts of the case (70 FLRA 398), the new FLRA rules, and the workaround.
Federal agencies can refuse to bargain over union proposals if they believe the proposals violate their statutory management rights. Even if an agency does by mistake bargain over such a proposal, the statute allows the agency head to disapprove the agreement and send the parties back to write a different agreement or litigate. Finally, even where the agency agreed to bargain over a proposal and the agency head approved it, the bargaining agency can declare the clause “unenforceable” during the life of the agreement, triggering litigation or an obligation to bargain over a replacement clause. That is three healthy bites at the proverbial apple.
You would think that if an agency passed up all three opportunities to challenge the impact of a contract clause on its statutory rights and a dispute over the clause went to arbitration the agency would be required to live by the clause–especially if it had the discretion under law to institute the policy/practice unilaterally. Up until a very short time ago, the FLRA held that it was almost never going to give agencies a fourth bite at the apple and would only overturn arbitration awards where the remedy profoundly abrogated the agency’s management right at all. The Authority’s thinking was if the agency did not avail itself of any of the other three opportunities to resist a contract clause that allegedly ran afoul of its management rights, it was not going to step in to save it.
But Trump’s operatives, Colleen Kiko and James Abbott, who we affectionately refer to as “The KA,” have decided that they are more than willing to help agencies even when the agencies might have lived by the disputed clause for years before changing their minds and sparking a grievance. Now FLRA will overturn an arbitrator’s award if—well let’s look at the actual words of the decision.
The first question that must be answered is whether the arbitrator has found a violation of a contract provision. If the answer to that question is yes, then the second question is whether the arbitrator’s remedy reasonably and proportionally relates to that violation. If the answer to any of these questions is no, then the award must be vacated. But, if the answer to the second question is yes, then the final question is whether the arbitrator’s interpretation of the provision excessively interferes with a § 7106(a) management right. If the answer to this question is yes, then the arbitrator’s award is contrary to law and must be vacated. DOJ.FBP and AFGE, 70 FLRA 398 (2018)
(If you are wondering where the “reasonably and proportionally relates” criterion came from, so are we. Maybe Javanka or the Baron or even Stormy, but not from anywhere in nearly 40 years of FLRA precedent. We guess the “manifest disregard” standard was just too difficult for them to get around.)
Moreover, The KA have decided they will not even remand the case to the arbitrator to give him/her a chance to reconfigure the remedy into one that appeases Trump’s operatives. The two new FLRA arrivals are going to close the case forever without a remedy for the employees or a bargaining right for the union. In contrast, if the agency used one of the three options for opposing the legality of a clause mentioned above the union had the right to force them to bargain before implementing any change.
Personally, we think the decision opens the door to agencies promising anything to get the union’s signature on the dotted line and then refusing to live by any promise. The KA has created a perfect environment for deceptive agency bargaining practices. The KA’s decisions declaring contract clauses illegal are not even subject to judicial review when made as exceptions to arbitration awards, unlike the other three methods for opposing a proposal or clause as illegal.
In the particular case that triggered the trumping of long-established FLRA precedent, the agency had promised to give “unit employees” priority for assignments to shifts, vacations, etc. Then at some point during the life of the agreement the agency decided it was having a problem recruiting a class of non-unit employees who often did the same work as unit employees. Consequently, the agency decided to give those non-unit employees preference for the listed assignments and let unit employees have what was left over. The nationally renowned arbitrator wrote an excellent decision ordering the agency to stop favoring non-unit employees and make harmed employees whole until it renegotiated the agreement, but it was not tight enough to ward off The KA.
At the risk of repeating ourselves ad nauseam, the agency could have declared the disputed contract clause unenforceable when recruiting became too tough, arguing that the clause unacceptably intruded on its management rights, giving the union the option to litigate over that claim and to demand bargaining over a replacement clause. In either case, the agency would have had to keep the practice established by the clause in place until the union agreed to a new one—or FSIP imposed one. It also would have had to make employees harmed in the interim whole. But, the agency preferred not to have to live by this bothersome, albeit agreed upon in writing, obligation any longer than it had to. So, rather than take the route of declaring the clause unenforceable, it challenged the arbitrator’s decision, whereupon The KA made it all go away for the agency.
Here is how to handle these cases if you get one while sitting as the arbitrator. Start with the issue statement. If it ask you to decide whether the agency action violated contract and/or law, accept it. Ruling on whether the law was violated, irrespective of finding a contract violation, makes your decision virtually immune from being trumped.
Once you have jurisdiction over violations of contract and law, address both authorities. Whether you find the contract was violated or not, move to the question of whether the agency’s deviation from the practice established by the contract clause was a unilateral change and hence a 7116(a)(5) ULP. Just because an agency maybe acting consistent with a right it haws under contract does not mean it is immune from bargaining over a change in how it exercises that right. Frankly, once you accept an issue statement asking you to judge the contract as well as law, FLRA rules require you to address both issues or FLRA will remand your decision.(See 51 FLRA 1302 “An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration, resolves an issue not submitted to arbitration, disregards specific limitations on his or her authority, or awards relief to persons who are not encompassed within the grievance. “)
Finally, phrase the remedy carefully. In cases similar to the one above, do not just rule that the agency is to “cease and desist” from misinterpreting the clause and make harmed employees whole. Also state something like this, “In the event that the contract violation remedy is overturned by FLRA because the contract clause and my award unacceptably interfere with management rights, the parties are to keep the practice/policy established by the disputed clause in place until the agency declares it unenforceable and fulfills any bargaining obligation. In the meantime, the agency is to make any harmed employees whole as it would where any other typical unilateral change in working conditions 7116(a)(5) violation is found.” Or at a minimum order that you are retaining jurisdiction over the award until any exceptions are final and authorize one or both parties to remand the case to you if the award overturned.
If the agency files exceptions to an award adverse on the contract and statutory questions, FLRA will not entertain the contract interpretation excessive interference claim unless the agency can show there was no unfair labor practice as well. Excessive interference does not enter into a statutory unilateral change matter unless immediate change is needed to keep the business functioning or it violates some law other than the management rights clause. If The KA tries to trump and dump your finding of a ULP at least the union can get judicial review of that.
In an ideal world, the union reps presenting the arbitration case raise the ULP issue and lead you through the mechanics of trump-proofing your award. But in an ideal world, no one needs arbitrators.
The statute created a well-balanced process. The agency has two shots at deflecting clauses that unacceptably intrude on their management rights, but in both cases it must continue bargaining with the union. It has another opportunity once the clause is implemented by declaring it unenforceable. In each case, the union has the right to force the agency into bargaining or judicial review. Permitting agencies to break contract promises without any bargaining obligation or judicial review smacks of authoritarianism—as so much does these days. In short, this is about keeping honesty and balance in the bargaining process.