FLRA WILL DESTROY LABOR ARBITRATION UNLESS ARBITRATORS DO THIS
In 2017 Trump filled the majority of the seats on the Federal Labor Relations Authority from his stockpile of political operatives who understand the need to crush unions and employee rights to repay their political cult’s benefactors. Once firmly seated, the two Trumpettes started to gut arbitration of federal employee disputes in order to send the message to federal employees that unions can do less and less for them. Given that federal law permits FLRA to review every arbitration decision other than those involve adverse disciplinary actions, namely, actions in excess of a 14 day suspension, the two Trump appointees are in the position to overturn any arbitration decision that goes a union’s way. And they have done just about that because their decisions cannot be reviewed by a federal court. So, for example, when an arbitrator ordered an agency to grant an employee 12 months of retroactive overtime (about $35,000.00) that he had been denied in violation of the agreement, the Trump appointees decided that was not “reasonably and proportionately related to the violation.” Although there is no record of FLRA using these grounds to overturn an arbitration award in the previous 38 years, these Abbott & Kiko have now used it more than a dozen times. Another one of their favorite grounds for gutting arbitrator awards is to second-guess the arbitrator by ruling that the remedy does not “draw its essence from the agreement.” There is little unions can do right now to try to preserve the validity of the arbitration process, but there are a few things arbitrators can do. For example, . . .
nothing bars an arbitrator from retaining jurisdiction over a case until a period of time after any FLRA exception petitions are completed. For example, if the arbitrator in the $35,000 OT case above had done so, he could have taken the FLRA decision into account and issued a new remedy, perhaps a shorter period of retroactive overtime.
A second tool an arbitrator has if s/he imposes a remedy is to order the parties to negotiate over the size of the back pay for a period of time and if they cannot strike a deal return to the arbitrator for mediation and arbitration. For example, if the arbitrator in the $35,000 case had done so there would have been good reasons for both parties to compromise.
A third tool in the arbitrator’s box, especially as the Presidential election draws near, is to avoid issuing a definitive remedy. For example, if the 12 months of retroactive overtime decision was yet to be issued, the arbitrator could issue a decision tomorrow finding a violation and order the parties to assemble all the records necessary to issue an award citing the precise number of hours of retro OT pay that were due. Perhaps the arbitrator would also call for briefs and/or oral argument. That would not only delay the conclusion of the case, but also bar the agency from filing exceptions with FLRA until the final remedy was issued. Moreover, the delay and added work just might “motivate” the agency to reach a settlement.
It would be nice if the union addressed the remedy issue with more creativity so as to prepare the path for the arbitrator, but nothing in law bars an arbitrator from opting for any of these three options on their own. Given the importance of stopping this Trumpian plan to dilute the value of arbitration to the continued use of arbitrators it is hard to imagine a more valid reason for them being pro-active.
Finally, in case you think that there might be some justification for Trump’s FLRA operatives to overturn the 12-month retroactive payment or the potential $35,000. figure as unreasonable, not long before the Trumpettes took the FLRA reins FLRA upheld an arbitration award imposing 15 years of retroactive overtime pay amounting to what the agency estimated as a $900 million tab—and when the agency virtually begged the Court of Appeals to intervene the Court dismissed the plea. On top of that the federal employee Back Pay Act specifically authorizes up to six years of back pay as reasonable and the FLSA mandates at least two years.