HURRAY FOR MANAGEMENT?
As expected, our management guys on the FLRA (Kiko and Abbott) have started to come through for us managers. For years the Authority has insisted that once an agency enters into and approves a labor agreement it must live up to the promises it made therein unless the contract clause all but shuts down the agency’s ability to exercise a management right. It was terrible having to abide by promises we made employees—and maybe even a little insulting. But that all changed this week with the issuance of United States Department of Justice, Federal Bureau of Prisons (Agency) and American Federation of Government Employees, Local 817, Council of Prison Locals #33 (Union) 70 FLRA 398 (2018). Now we can sign contracts and ignore them with almost total immunity.
Of course, we probably should not celebrate wildly yet. Kiko and Abbott’s opinion was just based on a review of the case law they do not like and their opinion that management should not have to endure being held to its commitments. In contrast, Member Dubester wrote an eloquent dissent that explained the good policy reasons why the previous case law benefitted government. It reminded us of all those dissents from Member Pope that the Circuit Courts regularly used to slap down Dale Cabaniss’ efforts to gut the labor law. It would have been nice if Kiko-Abbott (hereinafter known as “The KA”) had explained the good reason why an agency should be allowed to abandon a written commitment approved by the agency head, but we can’t think of any either.
And then there is all the uncertainty about The KA opinion holding up. Who knows whether the courts agree? If we rely on it and it is overturned, we could wind up with huge financial management liabilities. We have not yet forgotten prior cases where agencies relied on some Cabaniss decision to radically change the law only to find it overturned a few years later. One agency incurred a $900 million dollar grievance debt and another had to grant over 1,400 priority considerations for promotion. (And don’t even get us started about the anxiety we feel not knowing whether we have to raise the objection during our grievance response, before an arbitrator, or just at the end when we can surprise the union. On top of that, can the union demand we give it back any concession it made to get the clause we suddenly declared illegal?)
The other chunk of uncertainty will come from having a brand new legal standard that is not only vague but also lacking any prior case law enabling agencies to benchmark against. We have been launched into a giant legal void, and if there is one thing management hates is uncertainty. We know The KA has our backs and will out-twist Cirque du Soleil aerialists in an effort to support us, but that is hardly a guarantee. After all, Dale Cabaniss lost more circuit court appeals then she won.
And then there is the reality that unions can void The KA’s effort by restructuring grievances. For example, if they not only allege we have violated a contract clause but also unilaterally changed a practice, The KA’s vision could actually hurt us. Whereas today we have a chance to overturn an arbitration decision based on a contract violation, we will not even be able to challenge the contract error unless we can also show the ULP violation is also wrong. Aggghhhh!!!!
Unions can still force us to reinstitute a contractually established practice, grant back pay, fork over attorney fees, and publicly advertise to employees we violated the law. All they need do is argue that even if the contract clause is not enforceable as a contract provision it is still in place as a practice and/or policy until notice is given and bargaining concludes.
Nonetheless, we managers want The KA to know that we recognize how hard it must have been for it to stand up for what is essentially the right to lie to and mislead employees. Anyone else might have been reluctant to endorse deceptive management practices, perhaps due to deep religious convictions. But not our Two Trumpettes. Like the President who put them there, they were only too eager to pronounce existing case law to be “fake law” and replace it with what they think Congress should have put in place if they were the King and Queen of labor relations.
Stay tuned for more posts about this decision. It is a blogger’s gold mine.