DON’T LIKE THE FLRA DECISION? JUST SAY “NO F….ING WAY!”

Fortunately for the effectiveness of the system, most losing parties accept an FLRA decision on exceptions to an arbitration award as final and implement the remedy. However, what can a party do when it still does not agree that it got a fair hearing, that the law was properly applied, or that through its own fault it missed a major argument? For example, suppose an arbitrator ruled against an agency on a grievance claiming a violation of government-wide regulation and/or statute and then not only ordered the agency to grant gobs of back pay but also change the way it administers a large system, such as the leave approval one.The losing party can ask FLRA to review the decision via exceptions, but at times the FLRA will summarily dismiss any agency’s objection without any consideration for technical grounds, such as the agency could have raised the argument before the arbitrator but failed to. At other times, FLRA will dismiss because the agency counsel failed to make the proper arguments in its exceptions. The Authority has the power to raise a legal objection to an arbitration decision even if the losing party does not, but it is not obligated to do so—even if that means the government must pay out tens of millions it should not have. If the agency tries to appeal the FLRA decision to the Court of Appeals, the court will most likely dismiss the agency objections as well without consideration. So, what is an agency to do if it is facing an order to pay “zillions” in back pay and change the way it manages–even though it is certain in its soul that the order is illegal? (For that matter, what is a union to do if it is ordered to pay out big bucks even though it is the FLRA decision is illegal?) Building on Nancy Reagan’s astrologer’s wisdom, the agency (or union) is best advised to just dig in its spike heels, tightly fold its arms, just say, “No!,” and force the feds to comply—because the statute allows for this variation of civil disobedience. Here is how it would happen in the example above.

Once the losing party got a decision from the Court of Appeals or even Supreme Court dismissing its attempt to be heard, it would simply sit there doing nothing until approached by the winning party demanding compliance. At that point, the losing party can explain why it believes the decision cannot be legally implemented. If it wants, it can even give the winning party a legal memo explaining why the award cannot be implemented, e.g., perhaps it violates government’s the sovereign immunity protection despite the fact that argument was never raised at the arbitration or FLRA due to staff incompetence. After all, the sovereign immunity doctrine does not allow exceptions for staff incompetence. Either the agency has the authority to distribute money or it does not. And if its leadership sincerely believes it does not the chief executive is probably duty bound not to authorize payment until s/he has a legal order mandating payment.

At that point, the winning party has the burden to force compliance. The first stop would likely be the FLRA General Counsel’s Office where unless we are missing something really big all the winning party is likely to get is an agreement to file a ULP complaint seeking a compliance order. Even if the GC does initiate a ULP it will likely be another three or four years before that gets resolved in the courts. However, the more important benefit for the agency is that it now gets to correct the mistakes it made in the prior proceedings by raising the objections its incompetent counsel or LR staff failed to raise, such as a sovereign immunity, Anti-Deficiency Act, or other defense. In fact, the agency would get to raise that objection at the GC level, the ALJ level, the FLRA level, the Court of Appeals level, the en banc Court of Appeals level and Supreme Court level, if necessary. Each of those officials might decide that the agency is just trying to get second bite at the apple and refuse to even hear the substantive objection. But then again one of them might just find a way to justify addressing the legal issue. What more does the losing party have to lose?

In the meantime, it would have opportunity to approach any sympathetic members of Congress to ask that they push legislation boosting the agency’s ability to undermine the original award or gut it completely. For example, an amendment to the Back Pay Act could require that before arbitrators grant back pay retroactive to six years prior to the date the grievance was filed they must have met some significant criteria—not just act out of whimsy as many seem to do today. Another approach would be to exempt certain agencies from liability (or six years of retroactive liability) under the Back Pay Act, similar to what Congress did for TSA when it was exempted it from many laws that apply to most other Americans.

The added delay would also give the losing party the ability to approach the winning party to get a compromise reducing its retroactive liability and/or need to modify its management methods going forward. (Although we are unaware of any case law on this option, why couldn’t an agency go to the next term bargaining table demanding to bargain modifications to the troublesome award. At worst, the union would file another ULP charge and further delay closure. But, on the other hand, the agency might be able to extract huge concessions, e.g., exclusion of former unit employees from payment, a waiver of attorney fees, a modest lump sum payment in lieu of the administrative nightmare of individual back pay calculations spanning more than a decade, future tax-free economic benefits in lieu of retroactive cash, etc.) Although the union would likely risk significant dissatisfaction from members and non-members if it made a deal giving away money they believed courts had already said they were entitled to, making a deal may just be what is best for the members despite the inevitability of duty of fair representation ULP charges.

If you want to read further about a losing party’s ability to resist compliance you can read through dozens of cases, but we recommend the four below. (We can even think of one case a union continued to push for 19 years despite several loses along the way until it got its way.) In the meantime, we urge unions particularly to keep this possibility in mind when they win a huge back pay and/or system change award from some arbitrator or ALJ. Like it or not, this is the reality of the statute they operate under.

• Broadcasting Board of Governors and American Federation of Government Employees, Local 1812, 68 FLRA 342 (2015)
• United States Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Marianna, Fla. and American Federation of Government Employees, Local 4036, 59 FLRA 3 (2003)
• U.S. Marshals Service and AFGE, International Council of Marshals Service Locals, 13 FLRA 351 (1983)
• U.S. Department of Commerce, Patent and Trademark Office v. Federal Labor Relations Authority, 672 F.3d 1095 (2012)