ALL PRACTITIONERS OWE CHAIRMAN DUBESTER A HUGE THANKS

Ernest Dubester’s term as FLRA Chair ended earlier this year without much fan fair – and we are stunned. There is little doubt that he was one of the three most important appointees to FLRA ever. Here is why?

Although management LR reps dream about a more management biased labor law and union reps fantasize about one favoring unions, what they both need from the law more than anything else is certainty.  They want to know that when they take an action that they are legally correct.  So, the more objective case law precedent is the better for both parties.  That is particularly true for management because when it is wrong it often must pay six, seven and eight figure back pay checks as well as undo changes that have been in place for years. (One case ended in a $900 million dollar back pay order.  OUCH!)

Yet, about half-way through his tenure on the FLRA Dubester found himself sitting beside two Trump Administration appointees determined to replace the existing objectivity of the case law precedent with highly subjective language.  Stated differently, they wanted to replace the American system of governing by laws with governing by the personal opinions of political operatives.

And here is where Dubester was invaluable to all of us LR enthusiasts. Every time the two Trump appointees tried to dilute the objectivity and practicality of case law, he wrote a dissenting opinion that not only impressively outlined the lack of any basis for what they were doing, but also left practitioners a near-scholarly explanation to use to overturn the Trump precedents. By my informal count he did this over 275 times on dozens of issues.  That is time he could have used to sit back and do whatever he enjoys doing, e.g., Wordle, whist, or whale watching.  But he chose to lay and preserve the groundwork so the parties can move labor law precedent back to something more predictable and practical to apply.

For example, the statute  provides that unions can raise disputed “issues” under the negotiated grievance procedure or the unfair labor practice, “…but not under both procedures.” (7116(d)) There was some litigation early in the statute’s history about what an “issue” was and after appointees of both political parties and the courts took a few tries to get a workable solution it was decided that if a grievance and FLRA-filed ULP charge involved the “same facts and the same legal theories” then they involved the same issue, and the union could not file a grievance and go to FLRA.  It had to choose one.  That turned out to be fairly easy for practitioners on both sides of the table to understand and apply.   However, the two Trump appointees promptly tossed that test out the window like a bag of day-old White Castle trash and replaced it with the following:

• 7116(d) bars a later‑filed grievance when the grievance raises issues which are substantially similar to those raised in an earlier‑filed ULP.Dep’t. of Navy and IBPO, 70 FLRA 512 (2018)

In other words, these two great minds decided to define the statutory word “issue” by saying it is an “issue.” It helps no one to define a word by using the same word.  In fact, it is lunacy. Not only did they make all the existing cases useless as guides for applying the old test, but they imposed one which is highly subjective, permitting whoever sits in the majority of FLRA to do whatever they want. Dubester shredded that conclusion tracing the legal evolution of the long-standing precedent back to 1969.

Where it was impossible to protect the objectivity of some precedent Dubester fought to keep the same subjective test in place so that the parties could use the reams of case decisions to guide their applications of the statute.  Perhaps you remember when the two Trump operatives tried to redefine the de minimis defense to a union bargaining demand. The long-standing criteria was whether the agency-proposed change was “more than de minimis.” Trump’s two rocket scientists tried to replace it with the following test for determining whether a change must be negotiated:

unless the change is determined to have a substantial impact on a condition of employment. Dep’t of Education, 71 FLRA 968(2020)

Neither is objective nor practical, but at least the former had dozens of FLRA decisions explaining when it applied and did not.  If the change had been upheld by the courts—which it was not, it would have required practitioners to build a new body of case law, costing millions in litigation costs. (We should also note that the federal circuit court usually agreed with Dubester’s dissents rather than the ramblings of the two Trump appointees.)

A similar thing happened when the Trump appointees proclaimed that there was a major difference between the expression “conditions of employment” and “working conditions” with the result that the scope of things unions could bargain where greatly narrowed.   Dubester’s dissent again provided a bright light of legal reasoning for the courts to follow when they overturned the malicious case law coup the Trumpettes tried to launch.

Rather than let Dubester’s work be underutilized we are going to begin posting a series of articles that work from his dissents and which explain what the parties, but particularly unions, can do to aggressively remove the litter the Trump appointees left strewn across the federal labor law landscape. We have already started this with posts such as “Remember This For When the Grievance Haters Return.” It explained how to overcome the most common tactic the two Trumpettes used to undermine arbitration, i.e., they just disagreed with the arbitrator and hoped that unions could not figure out how to take their decision to court.  Our post explains how EVERY grievance should contain a ULP allegation to protect against FLRA abuse in the future.