BE VERY CAREFUL WITH THOSE ARBITRATION ISSUE STATEMENTS

If you knew there was a child predator wandering the neighborhood you would be extra careful about letting your child leave the house.  Given that Trump has installed two union predators on the FLRA, we need to exercise the same care when we let a grievance leave our control.  FLRA showed that in a new case when it denied a part of a remedy an arbitrator awarded, blaming the union for not having properly written the issue statement.

The parties stipulated the issue as follows for the arbitrator:  “Did the Agency violate the … MOU and/or the [parties’ a]greement when it failed to promote [the grievant] to his career[-]ladder position of GS‑12 in October of 2023?  If so, what shall be the remedy?”^[ As soon as that was done the agency let it be known that if the arbitrator did order it to promote the employee to a GS-12 position, it would insist that he give up his current telework arrangement. It also elicited testimony from a witness about the need for that. When the arbitrator granted the grievance giving the employee the retroactive promotion he also said that he was allowed to continue his telework arrangement once promoted.

The agency claimed that by addressing the telework aspect of the promotion the arbitrator exceeded his authority because the issue statement did not specifically give him the power to go beyond whether the promotion should have been granted.  FLRA said it did not  matter that the agency raised the telework issue in the hearing. Nor did it show any consideration that if it voided the telework element of the remedy it was only creating another dispute for the parties that would itself likely lead to another arbitration and considerable additional costs if the agency lost.  So, it decided that even though the issue statement broadly empowered the arbitrator with the words, “If so, what shall be the remedy?” it was the union’s mistake for not specifically authorizing the arbitrator to address the telework issue.  It did not matter that the agency had waited until the issue statement was agreed to let the union know it was likely to yank the employee off telework if the union won the case.

So, as long as Trump has his Trumpeteers stalking  unions, we need to be very careful and complete with our issue arbitration statements. If you have any doubts at all about how far the arbitrator can go, make it specific. If the agency will not agree to a broad issue statement, refuse to stipulate one with the agency and enter your own statement. That will empower the arbitrator to draft his own issue statement and most arbitrators ill give themselves broad authority. In cases like this where the agency blindsides the union by not raising a potential limit on the remedy until its opening statement or witness testimony, feel free to withdraw you agreement to a stipulated issue, which should again empower the arbitrator to draft her own statement.

For more details on this case see United States Railroad Retirement Board (Agency) and American Federation of Government Employees, Local 375 (Union), 74 FLRA 490 (Aug. 6, 2026)

Ironically, even though the two Trump appointees overturned the arbitrator’s award for going beyond the single issue of whether the promotion denial was legit, they used this case to go beyond the issue they were empowered to address to issue campaign statements praising Trump’s concern for waste in the labor- management process. In totally unnecessary and beyond the scope of their charge concurring opinions they whined about how agencies give union reps too many benefits.