ANOTHER FLRA FUBAR?
What’s a “FUBAR?” It is shorthand for pronouncing something “Fouled Up Beyond All Repair,” although there are more verbally assertive versions. We use it to label those MSPB and FLRA cases that screw up the lives of LR practitioners by making day-to-day operations more complicated and risky rather than less. On the brink of the holiday season peak the FLRA appears to have gifted us with another one in AFGE, Local 1698 and Naval Supply Systems Command, Pennsylvania, 70 FLRA 96 (2016).
The union filed a grievance on behalf of an employee denied a reasonable accommodation. When the case got to arbitration the parties could not agree on the issue the arbitrator was hired to decide. So, the arbitrator wrote the issue herself, i.e., “Did the Agency’s denial of [the grievant’s RA] request violate the [CBA] or any law, [g]overnment[-]wide rule, policy[,] or regulation? If so, what shall the remedy be?” But when the arbitrator decided the case she refused to address any law, rule, policy or regulation other than the one statute discussed during the grievance process, namely, the ADA/Rehabilitation Act. She ignored union arguments dealing with infractions of the FMLA, other provisions of the Rehabilitation Act, agency rules and provisions of the collective bargaining agreement.
It should surprise no one that the union filed exceptions seeking a remand with an order that the arbitrator address more than the ADA/Rehabilitation Act. After all, FLRA has written repeatedly that, “An arbitrator exceeds his or her authority when the arbitrator fails to resolve an issue submitted to arbitration,…. See U.S. Department of the Navy, Naval Base, Norfolk, Virginia and American Federation of Government Employees, Local 22, 51 FLRA 305, 307-08 (1995); U.S. Department of Defense, Defense Logistics Agency and American Federation of Government Employees, Local 2693, 50 FLRA 212, 217 (1995).” AFGE, Local 1770 and U.S. Department of the Army Headquarters, NC, 51 FLRA 1302 (1996) [We added the underlining to emphasize how clear the Authority has been on the arbitrator’s obligation to completely resolve the formal issue of the case.]
However, in this latest decision the Authority dismissed the union’s exceptions writing, “But the Union does not identify any law, rule, or regulation that required the Arbitrator to address every claim that the Union attempted to raise.” Really? Authority precedent does not say that an arbitrator exceeds his authority if he fails to resolve an issue raised in the grievance discussions. Precedent provides that the issue must have been submitted to arbitration. Here the union submitted the FMLA and other claims to the arbitrator who apparently chose to ignore them. Moreover, the arbitrator wrote the issue statement broadly enough to allow virtually any law to be considered. Isn’t 5 USC 7122(a)(1) a statute that requires that arbitrators address every law, rule regulation—so long as they are within the issue statement?
Don’t get us wrong. We understand that agency reps would be tickled pink if FLRA or arbitrators were limited to only addressing statutes and regulations specifically raised in the grievance procedure. It would force unions to have experienced employment lawyers check over a grievance before it is written to make sure every conceivable law, rule and regulation is cited in it. That would be a wonderful bonus for management that already benefits from being able to have FLRA void an arbitration award if it violates law or government-wide regulation, irrespective of whether the agency submitted those issues to arbitration. And do not get us started on FLRA’s decision that it has a right to void an award on its own even if the agency never raised a statutory or regulatory objection during the exception process—aka the sua sponte power. (See National Weather Service v. FLRA, 7 F.3d 243 (1993))
While there is no easy way to overcome this built in bias favoring management in the arbitration arena, the least that FLRA could do is stick to its long, long, long established rule that an arbitrator has to decide the complete issue before him or her. This arbitrator could have written an issue statement limiting her jurisdiction to laws, rules, regulations, etc. raised during the grievance process, but she did not. She wrote “any law, [g]overnment[-]wide rule, policy[,] or regulation.” [Emphasis added] Any is a pretty clear word, suggesting that the union was entitled to have her address the FMLA and other questions of law, rule, regulation and contract. That is what she said she would do and that is what they paid her to do.
Perhaps a parable will help. Suppose a home owner hired and prepaid a landscaper to “keep the grounds around his house free of any leaves” during the fall season while the home owner traveled. Then, upon his return, the home owner found that the grounds were perfectly clear of leaves except for a ten foot ring immediately around his house where the leaves were piled a foot high. Does the home owner have the right to insist that the landscaper rake those leaves too or can the landscaper claim that he was free to choose any part of the grounds to keep leaf free so long as it went “around his house?”
Hopefully, we are over-reading the impact of this case and the words about there not being any law requiring an arbitrator to address the complete issue framed was just mindless, holiday punch prose. For example, maybe FLRA was just sticking it to this union because it technically failed to use the magic words in its exceptions that it was claiming the arbitrator “fails to resolve an issue submitted to arbitration.” If so, it would have helped the rest of us if the Authority made clear that it was merely asserting its dominance here rather than opening a large exception to arbitration exception precedent. If the arbitrator had found a violation of the employee’s rights and imposed a remedy, the FLRA would have overturned it in a heart-beat if the agency showed in its exceptions that the remedy violated some law never discussed in the grievance procedure. After all, the bottom line is that no arbitration decision can stand if it violates law.