ARE YOU GETTING PREPARED?

Feds prosper or suffer depending on who is in the White House.  With at least the potential for a very anti-federal union and federal employee taking over a year from now, unions should be taking a number of steps now to protect themselves from its well-known tactics. One of those steps is to change the arbitration article in their agreements. 

During the previous anti-fed period in the White House, we saw FLRA overturn over 100 arbitration decisions.  That was almost solely due to the two political apparatchiks the White House put in there to dispense its  party’s revenge on what it lovingly called the “deep state” workforce. Unions can’t totally stop the next round of party operatives from treating feds like the enemy, but it can do something about many cases where the FLRA overturns an arbitration victory for employees.

For example, in a case I will never forget an agency took 14 months from the date it learned of an employee’s off-duty to actually discipline him even though it had a program that expedited discipline to an average time lag of two months.  During that time the employer modified the employee’s duties with the effect that he lost out on a big bundle of overtime he would have worked had his duties were modified.  The union grieved and overturned the discipline.  As a remedy, the arbitrator ordered the agency to reimburse the employee for all the OT he would have earned over a 12-month period but for the duty change.  It was a routine arbitration decision that 99% of the arbitrators in the world would have ordered.

But when the agency filed exceptions with the FLRA, the Authority overturned the decision writing that the remedy was “disproportionate to the Agency’s violation.” It did not ”reasonably and proportionately relate.” according to the two political operatives. The Authority did not explain why it found that, e.g., what objective indications or facts they relied upon nor did they bother to give practitioners advice on how to apply those wildly subjective terms in the future. But, in the end the employee lost a lot of money because of the political party in power. Case closed. (See DHS and AFGE, 70 FLRA 572 (2018))

Now this is where we turn to how unions can avoid being similarly victimized.  The FLRA could have remanded the case to the parties and the arbitrator to come up with a reasonable and proportionate alternative remedy giving the employee at least something, but it did not. The agency could have agreed to reactivate the case to find a new remedy, but the odds of that are none, not even slim. However, supposed the union had negotiated a provision into its arbitration article like the following:

When a grievance is sustained by an arbitrator in whole or in part, but the FLRA overturns it on exceptions, the union will have the option of resubmitting the case to the arbitrator to craft a new decision in light of the Authority’s rational.

Getting that provision into your agreement removes the agency’s discretion to resubmit a case to the arbitrator and it even limits the Authority’s ability to totally kill off a case. In all likelihood, in the overtime case reviewed above the agency would have reached a settlement with the union on how much of the OT to reimburse.

An alternative approach would be to give the union the right to formally open negotiations over how to settle the case. However, if  the FSIP is just as captured by the anti-fed folks that may not work out well.

Another wrinkle would be to require  that when an arbitration decision is overturned by FLRA that the agency must reimburse the union for all the costs the union endured if a negotiated settlement is not reached.

The bottom line is that unions need to do something other than leaving themselves in the same totally vulnerable position they are in now, i.e., where FLRA can overturn a union’s arbitration victory for purely political, unjustified reasons. Doing something now, even through some mid-term discussions or concession, seems a wise course to follow.