PIZZELLA POISED TO CREATE CHAOS

Brace yourself if you have anything to do with federal sector labor relations. Pat Pizzella, the Acting Chair of the FLRA and presumptive heir to the chair, is about to rattle your world like a snow globe. If you have studied his many, many, many musings, you know that he disagrees with at least two dozen long-established, labor law precedents that evolved from thousands of FLRA decisions, about a hundred circuit court appeals, and a handful of Supreme Court rulings. He apparently believes he knows better than all those people who played a role in shaping today’s LR arena—and yes that is what the word “hubris” is about. All he need do now is convince a certain self-obsessed, bottle-blond, combed-over, purveyor of luxury meats to appoint him a robot buddy from the binders of them kept over at the Heritage Foundation in trust for the likes of the Koch Bros, Breitbart, and Bradley Foundation. Then, the chaos can begin as precedents are thrown overboard, various circuit courts remand, reverse or uphold those revisionist rulings, the Supreme Court has to step in to referee, and the parties make adjustments to avoid the things they do not like.  Below are the labor law areas where “The Pizz” wants to force the machinery of government to restructure simply because he thinks that would be keen—and/or please his political benefactors—no matter what the cost to government. Our plan over the next few weeks is to focus on each of these areas to get practitioners ready for another period of “all-litigation-all-the-time” labor relations like Dale Cabaniss spawned and point out how they can contractually insulate themselves from the ego-fueled, decisional roulette that lies ahead at the hands of the Authority’s chief croupier. Jack Abramoff’s former associate has come a long way from his days as just a Koch Brothers groupie.  

Pizzella opposes–

1. accretions to existing units in favor to expensive elections even if they are mathematically insignificant;
2. most any bargaining over the impact of changes with even a faint relationship to national security;
3. a broad reading of the scope of the grievance process;
4. arbitrators retaining jurisdiction over complex or multi-stage cases;
5. considering EEO charge and complaint settlement meetings formal discussions;
6. bargaining proposals he personally considers “unseemly;”
7. the same evidence standards for agencies that unions must meet;
8. requiring agencies to meet all procedural requirements in an FLRA complaint;
9. requiring agencies to meet timeliness deadlines;
10. a broad readings of arbitration awards;
11. giving deference to arbitrators and ALJs to determine the facts of the dispute;
12. a narrow application of government-wide regulations to undercut negotiability;
13. the abrogation negotiability standard;
14. proposals that do not specifically protect management rights;
15. the narrowness of the covered-by exception;
16. remanding cases for corrections rather than dismissing them outright;
17. the canons of statutory construction;
18. the current understanding of what constitutes a change in working conditions;
19. limiting management’s ability to punish union reps who fail to show them respect in meetings;
20. any narrow reading of management’s 7106 rights;
21. any appropriate arrangement infringement on management’s right to contract out;
22. the failure to consider the cost of a union proposal when judging its negotiability;
23. the tradition of Authority members not adding new facts that are not in the record but which they consider to be “probably” true;
24. the obsession with basing opinions on directly related case law rather than dicta in a case with any kind of relationship to the one under consideration;
25. the reluctance of Authority members to invent principles that have no legal foundation; and
26. the failure to recognize the difference between “conditions of employment” and “working conditions.”

So, whereas today an agency LR manager can safely tell a line manager what bargaining obligation she has and does not have in light of the 7106 clause and the covered by principle, tomorrow that LR manager following the Pizz might tell the manager something else only to have a court pimp slap the Pizzster’s decision to the ground, order a status quo ante remedy, and cost the agency millions.

It was just a few months ago when one federal agency asked a court to overturn an arbitration decision because it was going to cost it a record-setting $900 million in back pay. The agency had foolishly relied on the legal adventurism of another FLRA chair of the same mold as Pizzy. We suspect that someone will be able to beat that $900 million figure challenging whatever the new Chair conjures up.