After 40 years of FLRA upholding virtually all arbitrator decisions granting employees retroactive overtime pay for violations of the labor agreement, regulation, past practices or law, the two Trump FLRA appointees have conspired to swindle federal employees out of this money.  They are doing it to weaken the image of unions—and maybe to earn some bigger personal payoff from their political cult’s backers. These two labor law grifters have vacated several arbitrator awards of retroactive overtime pay by pronouncing that the awards do not draw their essences from the agreements, do not reasonably and proportionately relate to the violation, or do create an excessive adverse impact.  Those conclusions are typically supported only by their personal opinions, not citations to precedent, objective benchmarks, nor even reasoned explanations. But looking through these cases, it strikes us that a very important argument is being left out of the briefs, namely, the force of the Back Pay Act (BPA). It is an argument that should be made even though the odds are against Abbott or Kiko being judicially honorable enough to accept it.

FLRA generally has the power to overturn an arbitration award if it does not draw its essence from the agreement or if the remedy creates an excessive adverse impact on the agency. But it strikes us that there is statutory language and case law precedent prohibiting FLRA from using those two reasons as well as the totally fictional “reasonably and proportionately related” criterion when back pay is involved. The BPA states that if a grievant meets the requirements of the BPA s/he “is entitled” to receive back pay. (5 USC 5596(b)(1)(A))  It does not say that arbitrators merely have the power to award back pay when the criteria are met nor that it be should awarded if it does not interfere with a management right, nor even that it can be provided when “necessary and appropriate to effectively administer the provisions of this chapter.” (5 USC 7105(a)(2)(H)).  The statute sets it up as an employee entitlement when the BPA criteria are met. (Abbott & Kiko seem to have recognized this when an FLSA violation is involved, choosing not to apply the Section 7106 r their own personal made up exceptions there.)

Kiko and Abbott have decided that the infinitely clear language of 5596 establishing a statutory ENTITLEMENT is overridden and tossed aside by the extremely vague wording of 5 USC 7106.  But if Congress had intended that it could have written it that way.  In fact, in 5596(b), the very section where this entitlement is established, Congress also established an entitlement to attorney fees.  However, it then specifically required that the fee entitlement must be administered consistent with 5 USC 7701.  Why did they not similarly link the retroactive pay entitlement to 7106 if that is what they intended?  And then there is the little matter of the law specifically requiring that the 5 USC 7106(a)(2) management rights provisions may not conflict with law, e.g., the BPA. When the two Trump appointees justify vacating a back pay award based on 7106(a)(2) provisions they are effectively voiding the BPA, not acting in accord with it.  Frankly, if you ask us, they do not even have jurisdiction over an agency’s exception to a back pay award based on a 7106(a)(2) claim.

Of course, as powerful as this argument is that the BPA is the only criterion for justifying a back pay award, the problem is that labor law makes Abbott and Kiko almost immune to challenge when it comes to enforcing arbitration awards.  The only path to getting a more honest reading of the law would be a case where the union put before an arbitrator alleged contract and ULP violations, won the case with back pay, suffered through an Abbott-Kiko political purge of the back pay remedy, and then took the case to the courts to argue the supremacy of 5596 over 7106. In the meantime, unions should be regularly arguing that the BPA renders the three reasons Abbott & Kiko have been using to screw employees out of overtime they earned are not applicable once the BPA criteria are met.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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