OVERCOMING LR INCOMPETENCE
Here is our hypothetical. Assume that the union files a grievance alleging a violation of regulation or contract, wins a big back pay award at arbitration, and it is upheld by FLRA when LR files exceptions. Since the courts have no jurisdiction to review an FLRA decision on contract, regulatory or most statutory violations, the case is closed. No more appeal options? Or is it over?
What if the agency LR reps from HR or OGC failed to make the proper arguments? For example, what if the arbitrator’s back pay award cannot be paid under the sovereign immunity doctrine, but the LR rep only realized that after the exceptions were dismissed? Can the agency just refuse to comply with the award and trigger a new round of litigation?
Yup. No arbitration award can require a federal official to violate law. If the LR reps failed to even get a particular legal objection to implementing the arbitration award addressed by the arbitrator or FLRA, the agency has the option to refuse to comply, force the union to file a ULP, raise the missed argument in defense of the agency’s refusal to implement, and hope that the ALJ, FLRA or a panel of federal circuit court judges overturns the original award. (See NATCA, 606 F.3d 780 (2010) for an example of how courts have left open a tiny door for a declaratory judgment even when a case does not involve a ULP.)
(If the agency is lucky the union will go back to the original arbitrator for a ruling that the agency has not followed his award. Under the law, that means absolutely nothing. It is a waste of time and money. Or, to put it in strict legal terms, “It is a big dumb litigation mistake by the union.” The union needs to file a ULP and it probably needs to be filed within 6 months of learning of the agency’s refusal to comply. Since the ULP issue is a different one than the arbitrator originally faced when ruling on an alleged violation of regulation or contract, the issue would have to be properly before him or her as a new grievance, e.g., in compliance with all the grievance arbitration rules of the contract, or with the concurrence of both parties.)
But this is not going to work if the agency merely disagrees with an arbitrator’s interpretation of some regulation or statute. The strategy is only likely to work if an agency has newly identified an objection concerning the jurisdiction of the original arbitrator. FLRA has said that jurisdictional objections, such as sovereign immunity objections, can be raised at any point even if never raised originally with the arbitrator. (See DVA, Aleda E. Lutz Medical Center, 57 FLRA 586 (2001).and USDA, Food and Consumer Service, 60 FLRA 978 (2005).) The objection need not even be raised in the original exceptions filed with FLRA. (See Fort Polk, 61 FLRA 8 (2005).) The agency can boost its chances by getting an opinion from its own OGC office or other higher level authority confirming that the arbitration award would require a federal employee to violate law and therefore the agency is ordered not to comply.
In the end, the only thing that can force an agency to comply with an award is a federal court order. Consequently, unions should be ready to adjust their approaches when it looks as if the agency is going to try every route possible to get out of an arbitration award. High among those options should be a willingness to negotiate a settlement figure under the jurisdiction of the FSIP, such as would happen if the Authority had imposed a retroactive bargaining order. Otherwise, all might be lost, especially if it waited more than 6 months after learning of the agency’s refusal to implement the final and binding award before it filed a ULP.