FIRE UP THOSE NEGOTIABILITY DISPUTES NOW

During the last Trump administration his FLRA appointees savaged decades of FLRA and judicial case law. They not only overturned about 20 important precedents, but they did so by replacing reasonably objective criteria for applying the law with overly subjective ones. The new criteria will make it a nightmare for practitioners on either side of the table to apply.  In short, the Trumpers shifted federal sector labor relations from something governed by stable laws to one governed by “whatever the hell the political appointees of the moment say it is.”  Given that Trump appointees will soon control FLRA once again, things are only going to get worse for unions and employees unless unions find a way to override FLRA.  This post is about doing just that.

Most of the damage the Trump appointees did to case law precedent they did while considering exceptions to arbitration decisions.  They chose that forum because there is no judicial review of those FLRA decisions, giving the political operatives the last word on what the law says—no matter how screwy, biased and unfounded. That left unions with nowhere to go, especially once FLRA no longer had a General Counsel, which has been the case for years and is likely to remain the case.  Without a GC, no ULP complaints can be litigated or sent to the FLRA in hopes of a reversal of bad precedent by a more favorable Authority under a different President. (Yes, unions could file ULP charges through their grievance procedures and ask arbitrators to override bad FLRA case law.  But that would be costly and 99% of arbitrators are not going to reject FLRA precedent outright.)

A better option might be to set up negotiability appeals proposing language that directly contradicts the anti-union reading of the law. Not only do those appeals get directly filed with the FLRA, saving time and money, but those decisions are reviewable by the U.S Court of Appeals. That puts unions in a position to take the issue to the DC Court of Appeals which has a good record of scrutinizing FLRA decisions and overturning them when they make no sense. Now that the Supreme Court has decided courts are not to give deference to agencies like FLRA, the court is our best chance for reestablishing reasonably objective unbiased case law.

For example, during the reign of Trump 1.0 his apparatchiks at the FLRA changed the decades old interpretation of 5 USC 7116(d) that had endured during Democratic and Republican administrations. That is the provision that explains when a union can challenge a management decision through the grievance process as well as through the FLRA. Traditionally, FLRA held that a union could split or bifurcate a challenge if  (1) the ULP charge did not arise from the same set of factual circumstances as the grievance and (2) the theories advanced in support of both the ULP charge and grievance were not substantially similar. The second element of that two-part analysis is reasonably objective. If a union filed a ULP charge with FLRA alleging union animus in the denial of overtime assignments for one member of the union mid-term bargaining team and a grievance challenging the “efficiency of the service” claim supporting a suspension of another member of the same team, those were two different theories and could be litigated in both forums.  At least that is the way it used to be.

Under Trump’s political officers at FLRA that long-standing criteria was replaced with the highly subjective eye-of-the-beholder determination that “the issues are substantially similar.”  Different theories mean nothing nor does the fact that the two cases involve different people, different time frames, and different actions. As if they were trying to go out of their way to help LR practitioners apply this new test they added that practitioners should look to whether the issues are “different in any meaningful respect,” or “derivative of” one another. (Dep’t. of the Navy, and IBPO, Local 800, 70 FLRA 512 (2018))  See what I mean about moving case law away from written law and turning statutory words into something that means whatever the FLRA appointees say it is. Be sure to check out these FEDSMILL posts about the 7116(d) mess the twerking Trumpettes made.

So, unions should consider putting a proposal on the bargaining table that reads something like this:

The Union can bifurcate challenges between FLRA and the grievance procedure if (1) the charges do not arise arose from the same set of factual circumstances as the grievance and (2) the theories advanced in support of both the ULP charge and grievance were not substantially similar.

An agency will most likely declare that non-negotiable as conflicting with law and that will set the union up to put the issue before the Authority and ultimately the court. In this particular case the union will be able to cite decades of FLRA and judicial precedent before the Trumpers screwed with the law to make their case.

If unions do this very soon they might be able to benefit from a few more months President Biden’s having the majority of votes on the Authority.

I will try to identify more of these opportunities to overturn Trump 1.0 case law over the next 6 weeks.

About AdminUN

FEDSMILL staff has over 40 years of federal sector labor relations experience on the union as well as management side of the table and even some time as a neutral.
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2 Responses to

  1. Greg G says:

    “…charges do not arise arose from the same set…” the grammar here is confusing, what is being said? (I think ‘arose’ is meant to be deleted)

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