HOW FLRA SPECTACULARLY BOTCHED A CASE

This was not a common case, but neither was it so unusual as to justify a wall-to-wall brain fry at FLRA. Here are the facts of DoDEA and ACEA, 72 FLRA 720 (2022). 1- FSIP issued a term bargaining decision that the agency refused to send forward for agency head review or implement because it believe four imposed provisions violated law; 2- the union filed a ULP which resulted in the FLRA ruling that because one of the four protested provisions was illegal it had no need to address the other protested provisions and that the parties must return to the bargaining table to complete negotiations over all four disputed proposals, 3- on a union appeal to the federal circuit court the court said it was unpersuaded that the clause FLRA said was non-negotiable was illegal and returned the case to FLRA for further action, e.g., to issue a revised decision, and 4- upon receipt of the case from the court FLRA punted saying it was returning the entire the case to the parties without further decision. If you are asking yourself why the FLRA never addressed the other three FSIP-imposed provisions so that the parties knew whether they were negotiable or not when they returned to the table, so are we. Here’s why that was really foolish.

First, without a negotiability ruling on all four protested provisions, the agency is likely to again declare them non-negotiable and force the issue back to FLRA and the courts. FLRA’s act of dumping the case back into the parties’ lap without any substantive ruling will only result in the parties dumping it back into the Authority’s lap. Given that a couple of the disputed proposals involve potential gobs of back pay retroactive to 2015 all the Authority’s recent “decision-not-to-decide” has done to substantially increased the government’s liability for back pay.

Second, FLRA has a legal obligation to resolve negotiability disputes. (5 USC 7105(a)(2)(E)) We cannot think of a legally legitimate reason in the world why FLRA thinks it can just refuse to decide the negotiability of all the disputed provisions that the parties properly put before them. Federal District courts have the power to order agencies like FLRA to do the work a statute assigned them and this case cries out for such an order.

Third, the agency argued the one clause FLRA addressed was non-negotiable on four distinct grounds.  Yet, the FLRA addressed only one of those grounds.  At a minimum, that left the agency not knowing if the clause was illegal on other grounds.  The FLRA has an annoying habit of not considering alternate negotiability arguments when it rules a clause non-negotiable on one of the argued grounds. That sets everyone up for the mess we see here.  When the circuit court said it was unconvinced by the FLRA’s decision and returned the case for further FLRA action it resolved nothing.  Conceivably, by ruling on only one of the other alternate arguments FLRA has put the court on the path to deciding the full negotiability dispute over a single clause in four separate cases.  Frankly, the agency attorneys should have pointed this out to the court and argued the case was not ripe for a court review until all the arguments and disputes in the case were addressed. In the alternative, they should have filed an appeal challenging the FLRA’s failure to address all the disputed provisions. Someone in the DoD GC’s office blundered badly.

Fourth, when the FLRA took the court’s decision and passed it down the line to the parties without deciding any negotiability dispute it ordered the agency to “Bargain with the Union to the extent required by the Statute and any other applicable law concerning those matters addressed in Article 19, Section 1; Article 26; and Appendix F of the successor collective bargaining agreement, as well as matters addressed in successor agreement provisions that were held deficient.” That is all fine and well, but it never addressed Article 26, or the Appendix F issues, which leaves us wondering where it got the authority to impose a remedy including them without a basis, e.g., that the law had been violated.

Fifth, the original FLRA decision was issued in May 2019. Assuming FLRA had properly addressed all the issues, the court’s decision in October 2020 would have settled whether the clauses granting back pay to the middle of 2015 were legal.  If they were, the employees likely would have collected thousands of dollars each. However, now that the case has lingered due to FLRA’s incompetence more than six years have passed since the day back pay began accruing.  That is important because of a little discussed provision of appropriations law.  An agency cannot distribute back pay that is owed for more than six years. Title 31 USC 1552(a) states, “On September 30th of the 5th fiscal year after the period of availability for obligation of a fixed appropriation account ends, the account shall be closed and any remaining balance (whether obligated or unobligated) in the account shall be canceled and thereafter shall not be available for obligation or expenditure for any purpose.” Consequently, even if the legality of the disputed FSIP-imposed back pay provision was settle before the end of this fiscal year, the employees have lost their right to at least one year’s worth of back pay.  On October 1, it will be two years of lost back pay.  Potentially, continued delay will abolish all the back pay entitlements.

Sixth, our confidence in our analysis of the FLRA’s screw-up was initially shaken when we saw that Member Abbott, who is chronically wrong when interpreting the law, read the law the same way we did. He dissented from the Authority’s 2021 decision to return the case to the parties without deciding all the negotiability issues with these words, “I cannot join the majority in its decision to remand this matter back to the parties when a determination on the negotiability of the disputed provision would bring an end to this dispute that dates back to 2015.” But then again, even broken clocks are right twice a day. So, we are going to ignore the shadow that Abbott’s concurrence casts over our analysis.

In short, when FLRA gets a case with multiple disputed provisions and multiple grounds for contesting the negotiability of each, it owes the parties a decision on each provision and argument. When it does not do so, it opens the door wide to long-term litigation.