PAY ATTENTION TO DUBESTER’S BAT SIGNAL
Ernest Dubester led a one-man unprecedented campaign to stop what was probably the most unethical reign of anti-union revenge the FLRA ever witnessed. But he was only one vote against those of two others who were pledged to punishing unions and employees for voting for the wrong people. So, generally the best he could do was deliver well-reasoned dissenting opinions and hope the courts would reverse the majority opinions–which they often did. But we at FEDSMILL look at those dissents as bright spotlights on the provisions of the labor law warning of their potential for political abuse–like a Bat Signal. Without a change in the statute, it will take a bundle of creative union strategies to insult them and employees from further abuse in the future. For example,…
the most common way that Trump’s appointees took revenge was to overturn arbitrator decisions favoring unions or employees. Their decisions and reasoning was absurd and ridiculous reasons, but they got away with it because with rare exception their decisions could not be appealed to court. Whose fault was that? UNIONS! They failed in all but one or two of the over 100 cases where arbitrators sided with unions and employees to write their grievance so that any FLRA decision dripping with nonsense could be appealed to the federal courts.
As we explained in “How a Grievance Can Also Always Be a ULP,” if the grievance is drafted to allege a ULP along with any contract, statutory or regulatory violations, a senseless FLRA decision can be appealed to court. If you do not allege a ULP, the FLRA’s review of an arbitration decision is final and binding no matter how absurd and politically motivated. Consequently, unions should allege ULP in EVERY grievance they file. Our post above explains how to do that. Don’t assume that because the Authority may be in control of honorable people at one time that it will be when your grievance gets before them.
That is one thing unions can do to protect themselves, but there are others as well. Another is to negotiate into their term contracts a provision stating that should FLRA overturn an arbitrator decision in response to agency filed exceptions, the union has the option to put the matter back before the arbitrator to consider the FLRA’s analysis and reissue a decision. For example, in one case, the Trump appointees overturned an arbitrator’s decision awarding an employee a year’s worth of overtime—about $35,000. (See our post entitled, “FLRA Will Destroy Labor Arbitration Unless Arbitrators Do This.”) The two anti-union avengers at FLRA overturned it because they felt they could substitute their opinion of what was a reasonable remedy for the arbitrator’s. It would have been nice if the union had alleged a ULP to get judicial review, but the next best thing would be to have a right to give the case back to the arbitrator for a decision more in line with FLRA’s issues. FLRA has the power to “remand” a case like that to the arbitrators to polish their reasoning, but an anti-union FLRA is not going to do that.
If the union cannot get the right to remand FLRA-reversed arbitrator decisions, then they can obligate through term contract language the agency to ”negotiate” the proper resolution to the case. For example, in the overtime case mentioned above maybe the parties could have settled on six months of OT back pay instead of a full year. That is a lot better than nothing.
In other cases when the FLRA rejects the arbitrator’s interpretation of a contract provision, it would help if the union had the right to reopen negotiations to address alternatives to the alleged defective contract wording. This would help where the FLRA decides a contract provision “excessively interferes” with a management right. Indeed, it would not be absurd for the union to negotiate for the right to open an entire term contract if the FLRA voids an arbitrator’s interpretation of a single provision. That would “motivate” the agency to come to a quick and narrow resolution when it disagrees with an arbitrator’s decision.
Unions left themselves exposed to a politically vengeful FLRA by not alleging ULP violations every time. They can fix that without asking agencies for a thing. But there will also be times that a union will not want to take a case all the way to federal court. In those situations, it needs another option to keep the case alive.
It may not be the most important thing a union needs to succeed against the anti-union political forces seeking to do them harm, but thinking creatively about solutions to problems, particularly likely future problems, is an invaluable asset. Too many union leaders are just going through the motions of doing today what they did yesterday and expecting better results.