THE CARE AND FEEDING OF ARBITRATORS
If you understand how hard it is to keep goldfish thriving, then you know something about sustaining arbitrators. They need constant care and attention throughout a case. Ignore one tiny detail and your case ends up flushed down a toilet. For example, FLRA just issued a decision wherein an arbitrator told the union to pursue one of its claims related to an employee’s suspension with someone other than himself. My first reaction was to call that arbitrator a wimp afraid to take on an unusual issue unique to the federal sector. But when I read past the first few paragraphs, I realized the union failed to feed him properly. By that I mean…
the issue the union fed the arbitrator was whether the suspension served the “efficiency of the service.” The arbitrator decided it did not and awarded back pay. However, among the union’s arguments was that the suspension also violated another federal employment statute entitling the employee to damages beyond back pay. The union deserves substantial plaudits for going after more than back pay. Very creative and aggressive. It is reasonable to assume that by claiming the suspension failed to promote the “efficiency of the service” standard the arbitrator had the power to examine a violation of any law. Afterall, it does not promote the efficiency of the federal government to violate a law. Indeed, if the arbitrator’s decision violated a law not specifically mentioned in the issue it would have been overturned by FLRA on appeal.
But as we said at the outset, arbitrators are delicate creatures right up there with goldfish, butterflies, and orchids. Moving conservatively, this arbitrator proclaimed that because the union had not mentioned the specific law in its issue statement that he had no power to address the issue even if the union did raise it as part of the post-hearing brief. Stated differently, if the union does not feed the arbitrator a sufficient statement of the issues, the arbitrator will likely go belly up on the union.
The union should have either mentioned the specific statute other than the discipline and adverse action statutory provision in its issue statement or at least have asked him to consider whether the suspension failed to promote the efficiency of the service “or any other law, rule or regulation.” Remember that the next time you pick one out and take it home.
