NEW FLRA DECISION SETS A RECORD FOR BLUNDERS

The Authority just issued DoD, DoDEA, Puerto Rico and Antillies Consolidated Education Association, 72 FLRA 414 (2021) which, along with the related prior Court of Appeals decision and other FLRA decision set the unofficial record for the most blunders in a single FLRA case. Those other decisions are DOD, Domestic Dependent Elementary & Secondary Schools, Fort Buchanan, P.R., 71 FLRA 127 (2019) and Antilles Consol. Educ. Ass’n v. FLRA, 977 F.3d 10 (D.C. Cir. 2020). After a brief summary of the case, we are going to list them for the benefit of negotiators who may be facing similar FLRA screw-ups.

The parties began negotiations in late 2015 and the FSIP imposed its decision on January 25, 2017– just before Trump fired them all. Rather than submit the agreement for agency head review, the agency notified the union, about 5 days after the 30-day deadline for agency head review, that it would refuse to enforce four provisions of the Panel-imposed decision. It claimed they were illegal or otherwise non-negotiable. The union chose to litigate rather than pursue a negotiated fix and filed a ULP, which the ALJ sustained by requiring the agency to implement the contested provisions.

When the agency appealed to FLRA the follies began.

First, FLRA agreed with the agency that the ULP complaint the FLRA Regional Director had issued was defective, said it would strictly enforce the required procedure in the future, but was going to overlook the requirement of regulation this one time. DUHHHH?

Second, FLRA said FSIP had exceeded its jurisdiction by addressing one of the contested provisions.  It also said it was going to send the parties back to the bargaining table to further negotiate over the contested provisions.  However, it then stated that the rest of the agreement the parties and FSIP crafted was in effect because the agency head had not issued a disapproval within 30 days of the Panel decision.  That flew smack in the face of the long-established FLRA precedent that agency head review is only required once the agreement is totally complete.  How could this have been a complete agreement without four significant provisions –or a complete FSIP resolution of the impassed issues?

Third, FLRA decided to address only one of the four contested agreement provisions because the union said that if the Authority found that particular clause non-negotiable it preferred to be sent back to the bargaining table to renegotiate all four provisions. FLRA does not have the power to make deals with parties about what it will decide and not decide once a case is properly before it.  The statute REQUIRES it to “resolve issues relating to the duty to bargain…” (5 USC 7105(a)(2)(E)).  FLRA tried to be the FSIP and only further complicated and delayed final resolution more.

Ironically, Karma soon punished FLRA for ignoring the limits of its statutory powers when the union recanted its promise to go back to the table on all four issues.  Days after FLRA found the one provision non-negotiable, the union filed an appeal with the D.C Circuit Court.

Fourth, rather than respond to the union’s petition by asking the court to return the case to FLRA so that it could issue a complete decision on all four contested issues, FLRA let that opportunity pass and with it any chance to hold the union accountable for going back on its promise.  Oddly, the agency never informed the court that it only had a small piece of a larger case before it either.  Appellate courts rarely will decide cases in pieces and would most likely have returned this to FLRA for it to fulfill its statutory mandate if anyone had brought it up.

Fifth, when the court did rule on the single agreement provision it decided the FLRA’s reasoning was inadequate and sent the case back to FLRA for it to rewrite its rationale for holding the single provision non-negotiable. But rather than rewrite the basis for the original holding or, better yet, addressing all four contested provisions, FLRA decided by a 2 to 1 majority to not do what the court asked.  So, there is no decision for the parties to appeal to court and no resolution of the underlying contract dispute.  It is as if the FLRA just tossed the original case in the trash to save itself th4e heartache of unraveling the mess it made.

Sixth, in place of issuing a substantive decision FLRA issued a bargaining order, which seems like another blunder. In order to issue such an order, FLRA has to find that one or both the parties violated the statute.  But there is no such finding in this case. The only entities that have violated the law so far are FSIP and FLRA.  FLRA can’t just wander around issuing bargaining orders. In short, we doubt this order is enforceable.

Moreover, even if this order was legal what is it directing the parties to specifically do, e.g., start bargaining from square one on these issues, pick up at FMCS, reenter FSIP, file new negotiability appeals, etc.? Now that the parties are bargaining neither can return to FLRA for a resolution of the original petition because that case is over. All FLRA can do is resolve a new negotiability dispute, which will likely result in a court appeal, followed by another visit to FLRA, and finally back to the bargaining table.

This is one of those cases negotiators should think of whenever their gut tells them that the best way to deal with a bargaining impasse is to litigate rather than work harder to get a deal.  These negotiations involved a substantial salary increase for employees that would have gone into effect without agency objection over three years ago except for this litigation. We hope the employees get that money when all this dust is settled, but the only sure way to get it is to make a deal