WHEN WILL COURTS REVIEW FLRA’S EXCEPTION DECISION INVOLVING A GRIEVANCE?

Courts generally are not permitted to review the Authority’s decisions involving exceptions to grievance arbitration awards.  But there is an exception to that rule, i.e., when the FLRA exception decision involves a ULP.  We first wrote about this in How A Grievance Can Also Always Be A ULP  But as time goes on, the courts have sharpened the criteria that must be met for it to take jurisdiction. In a decision issued last June the D.C. Circuit Court provided the most complete explanation yet of what a union must do to get judicial review.  Given that the incoming White House Administration appointees will arrived pre-disposed to overturn every union arbitration victory,  this small exception to the rule just might save your case. 

We have largely excerpted portions of the court’s June opinion below to make it more readable, e.g., deleted various citations. It is required reading for any steward drafting a grievance.  They must know how to raise the potential ULP in the grievance or the union loses this critically important protection.

We have jurisdiction of an FLRA order reviewing an arbitrator’s award only if the order “involves an unfair labor practice.”   We interpret “involves” to require that a ULP be “discussed in some way in, or be some part of, the Authority’s order” or “necessarily implicated by” the Authority’s decision.  Our court has found no ULP involvement—and therefore no jurisdiction—

    • if a claim could be, but is not, framed as a statutory ULP. (No ULP involvement when union framed arguments as governed by contract law and did not cite Section 7116).
    • if an arbitration award lists no ULP issues and the FLRA order includes “no discussion, mention or implication of an unfair labor practice.”
    • if an arbitrator addresses a ULP but the Authority does not. In AFGE, Local 2510 v. FLRA, a union submitted a ULP charge to an arbitrator but the FLRA order addressed only an attorney’s fee award.

In another case, the union pressed contract and ULP claims but the arbitrator dismissed the ULP claim as not properly before her. The FLRA upheld the arbitrator’s decision but did not evaluate the ULP allegations; accordingly, the Court found no ULP involvement and dismissed the petition. Id. This precedent manifests that the “involves” test focuses on the FLRA’s order, not the arbitral award. (“[I]t is the order of the FLRA that is the subject of the petition for judicial review, not the arbitrator’s decision or the initial grievance.”

On the other hand, we have found the “involves” test satisfied in some circumstances.

    • We exercised our jurisdiction to review an FLRA order that precluded an arbitrator’s consideration of a ULP because the union had earlier raised the ULP charge before the FLRA. The Authority’s discussion of the union’s arbitral grievance vis-à-vis the earlier ULP charge “abundantly suffice[d] to satisfy the relatively imprecise ‘involves’ standard,” notwithstanding the FLRA did not address the ULP on the merits. Id. at 71.
    • Where an arbitrator concluded that the agency had not unlawfully repudiated an earlier agreement in violation of Section 7116(a)(1) and (5). On review, we held the “involves” test met because the Authority order explicitly addressed the unlawful repudiation ULP.

In this case the union’s claims were litigated as ULPs before the arbitrator. Both of FEA-SR’s arbitral grievances alleged that DDESS committed ULPs. In post-hearing briefing, both parties again listed the ULP allegations as the main issues presented. The arbitrator ultimately concluded that DDESS failed to negotiate in good faith and committed ULPs when it ceased negotiating on unresolved provisions and submitted a partially unsigned agreement for agency head review. The FLRA’s orders “involve” a ULP under Section 7123(a) because they conclude that the basis of the arbitrator’s ULP finding was contrary to law.

First, the FLRA described the arbitral award as finding ULPs based on DDESS’s cessation of negotiations, submission of an unexecuted agreement for agency head review and repudiation of the parties’ 2005 CBA.

Second, in Part B of the order, the FLRA addressed the arbitrator’s ULP findings. The FLRA determined that the FSIP had resolved all bargaining issues. This determination directly overturned the arbitrator’s finding that DDESS failed to continue negotiating an incomplete agreement.

Next, the FLRA found the agreement “executed” when the FSIP issued its order. DDESS therefore submitted a fully executed agreement for agency head review in compliance with Section 7114(c). Id. at 605. In other words, the FLRA overturned the arbitrator’s finding that DDESS committed a ULP by submitting an unexecuted agreement for review. The order declined to reconsider these conclusions. Because the FLRA controverted the bases on which the arbitrator found a ULP, its orders “necessarily implicated” a statutory ULP and “suffice[d] to satisfy the relatively imprecise ‘involves’ standard.”

Federal Education Association Stateside Region, V. FLRA (No. 22-1220 (D.C. Cir, 12/22/2023)

 

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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