CAN FLRA STAY IMPLEMENTATION OF A FINAL AND BINDING FSIP ORDER?
Yup! It can and it has, even though it is extremely rare. The Authority, or at least the Carol Pope Authority, covered the process in an IFPTE decisions issued in October 2016. (See IFPTE, Local 4 and Dept. of the Navy, 70 FLRA 20 (2016)) The Panel had decided a dispute over floor plans and cubicles, largely opting for the employer’s proposal. The union responded by asking the Authority to stop implementation. The Authority wrote that it “is empowered to stay Panel decisions in very narrow circumstances.” But, it went on to explain that generally it will only do so if the Panel has “ruled on an admittedly difficult legal question and when the equities of the case suggest that the status quo should be maintained.” Exceeding its power to address negotiability disputes as spelled out in Carswell is a good example of when this might be appropriate. The Authority found against IFPTE here because it did not meet that standard. There is nothing in this decision or elsewhere stating that this is the only way to challenge a final Panel order because one party believes an imposed provision is non-negotiable. That party could always refuse to execute the agreement, the agency head could disapprove the provision in review, or the union could refuse to comply with it. However, the most interesting part of this decision was tucked away in footnote 88.
Although he did not issue one of his notorious dissents opening with a quote from Adam, Mr. Ed, or the Magic 8 Ball, Pope and Dubester saw fit to relay some back room chatter by then Member Pizzella. Apparently, “The Pizz” feels the Authority should step in and stop Panel orders far more often than the case law narrowly provides. He would stop one if needed to “avoid costs.” Well, that is just about every Panel decision ever issued requiring an agency to do something. Moreover, the newly crowned Acting FLRA Chair will not even demand that an agency present a cost comparison or other serious financial analysis. So, if the Panel orders an agency to do something that will cost a shilling or two, it likely already has the “P Chairs” vote to block the Panel order. If it can get one more to block implementation of the Panel’s order, FLRA could put the case on the shelf never to be seen again.
P.S. Yes, we are looking for an appropriate moniker for Chair Master Pizzella. The superficiality of his legal reasoning, which seems to begin and end with Bartlett’s Quotations, promises to exceed Member Cabaniss’. We might as well have fun with him just as the courts likely are to. Feel free to send us some suggestions.