ARBITRATOR PRITZKER, YOU ARE DEAD WRONG
Malcolm Pritzker, an experienced DC arbitrator, recently ruled that an agency (SSA) violated the law by withholding information from the union (AALJ) during bargaining. The agency withheld the information, sped the dispute to the FSIP, and got one of the Panel’s politically-patented anti-union decisions imposing working conditions that employees must now live with. The union requested that Pritzker void the conditions imposed on them and return the parties to the bargaining table to negotiate in good faith this time. Pritzker, however, refused to do that. He wrote, “I do not have the right to interfere with the procedures of the impasses panel or to intervene in the collective bargaining process, and I will not order the reopening of the negotiations between the parties.” He could not be more wrong for the following seven reasons.
First, he did nothing to deny the agency the fruit of its illegal behavior. It is like a judge finding some slug guilty of mugging a passer-by, but letting the thief keep the money he stole if he just apologizes and promises to never do it again. The Authority has identified that the essential purpose of its remedial authority is to restore, so far as possible, the status quo that would have obtained but for the wrongful act and to deter future misconduct. Dep’t. of Defense, 54 FLRA 259 (1998) (citing NLRB V. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258 (1969). To help arbitrators do that it has given them “great latitude in fashioning remedies.” Dep’t. of the Air Force, Ga. and AFGE, Local 987, 25 FLRA 969 (1987) By doing nothing to deter future misconduct or to restore the status quo Pritzker blundered.
Second, Pritzker wrote that he did not have the “right” to interfere with the operation of the imposed agreement. However, he failed to include a single sentence about why he thought that. That is particularly troubling because the statute contains a specific endorsement for returning parties to the status quo ante as a remedy for bad faith bargaining, i.e., “requiring the parties to renegotiate a collective bargaining agreement in accordance with the order of the Authority and requiring that the agreement, as amended, be given retroactive effect.” 7118(a)(7}(B) It would have been nice to know why Pritzker read that statutory sentence to mean precisely the opposite of its obvious meaning.
Third, the accepted remedy for a violation of the obligation to bargain in good faith over impact/implementation issues is an order that the offending party return to the status quo ante unless the case qualifies for an exception under the criteria of Federal Correctional Institution, 8 FLRA 604, 606 (1982). See also AFGE, SSA Council 220, AFL-CIO v. FLRA, 840 F.2d 925, 929 (D.C. Cir. 1988). The Authority has even reversed cases where the arbitrator failed to consider the criteria, which is something it should do with Pritzker’s decision. Dep’t. of Commerce, NIST and FOP, 71 FLRA 199 (2019). Nothing in the law limits the status quo remedy to unilateral changes in working conditions. NFFE, Local 1827 and Catherine Bratton, 49 FLRA 738 (1994)
Fourth, given that Pritzker pronounced that arbitrators do not even have a “right” to involve themselves in the collective bargaining process, we are left wondering what he would have done if the agency violated the obligatory good faith bargaining statutory provisions ten times, e.g., denied four more valid information requests, barred the union’s attorney from being at the bargaining table, threatened the union president for her bargaining aggressiveness, misled and lied to the union during negotiations, refused the provide the union team the statutory amount of official time to bargain, and insisted to impasse on a waiver of the union’s statutory right? Would he have let even such Son-of-Sam carnage go uncorrected as well. Agencies would have no reason to engage in good faith bargaining if they could be immunized simply because the Panel issued a decision. Let us remember that the Panel is composed on seven political appointees who do not need to be confirmed by the Senate and who currently spend the majority of their private lives opposing unions and their goals.
Fifth, when a union alleges a violation of the good faith bargaining obligation and submits the case to an arbitrator, s/he is standing in the shoes of an FLRA ALJ with the same powers to order corrective action. Department of the Navy, NAVFAC Engineering Command Midwest, Public Works Department, Crane, Ind., 69 FLRA 386 (2016). Given that FLRA is the parent organization of the FSIP, there should be no doubt that the FLRA process contains the power to overrule the Panel. It has done so repeatedly over the years. Our favorite case law passage on this issue is the following, “For arbitrators to refuse to consider the remedies authorized by section 7118 of the Statute because they determine that they are not empowered to grant such relief is not consistent with the framework of the Statute, and we will find that such determinations are deficient. In our view, to find otherwise would destroy the promise of a choice of forums with similar–if not identical–remedial authority, as was intended by Congress.”
The mere involvement of the Panel should not scare off a neutral from ordering proper remedies. While the Panel has wide latitude to settle a dispute properly within its jurisdiction, law requires that it exercise that latitude “not inconsistent with this chapter” of the law. (5 USC 7119) By letting an agency process a case through to a final and binding Panel decision despite the unquestionable pendency of a bad faith bargaining ULP charge, the Panel was acting outside its jurisdiction. See Interpretation: Power of FSIP…, 11 FLRA 626 (1983) in which the FLRA told the Panel it is not to take jurisdiction over cases with pending obligation to bargain disputes. In short, FSIP had no power to even take the case in the first place.
Here is how Arbitrator Creo justified his decision to void a Panel term agreement order obtained through agency ULP’s and Panel exceeding its jurisdiction.
The Arbitrator accepts the Union assertion that it is well-established that arbitrators are empowered to order the same remedies as the FLRA in arbitrating a grievance alleging the commission of an unfair labor practice….§ 7105(g)(3) states that the Authority may require an agency to take any remedial action it considers appropriate to implement the intent and provisions the Statute. Moreover,… if the Authority determines that an agency [committed] an unfair labor practice, then the Authority has the power to issue a remedial order requiring the parties to return to the collective bargaining table to renegotiate; the agreement, as now amended, can be given retroactive effect….The Panel’s November 15, 2018 Decision to take jurisdiction over some of the articles the parties were negotiating at the term table does not have any effect on the broad arbitral discretion to issue an appropriate “make whole” remedy for a violation of the Statute. Likewise, any subsequent Decision of the Panel, or any future behavior at the bargaining table, regardless of FMCS assistance, does not erase or cure the initial bad faith bargaining by the Agency which caused the involvement of FSIP…. A status quo ante remedy is necessary to ensure compliance with the Statute and deter future violations by the Agency. The Arbitrator agrees with the Union that there must be meaningful consequences resulting from the illegal actions of the Agency. The remedy should be fashioned to make the aggrieved party whole and to deter future misconduct. The Arbitrator finds that a status quo ante remedy is appropriate to address the Agency’s failure to bargain in good faith.
An equally detailed explanation for why arbitrators have the power to void a FSIP-imposed set of working conditions is Arbitrator Roger Kaplan’s. Check out the story about the case on the Federal News Digest before you dive into the details.
Sixth, the arbitrator needn’t have worried that an order to return the bargaining to the status quo ante might have been irreparably harsh on the agency because his decision is reviewable by the FLRA and federal courts, including the U.S. Supreme Court. They are more than equipped to temper excess.
Seventh, not only was Pritzker wrong to leave the illegally acquired contract in place, but he also should have addressed the need for a make whole remedy for employees and the union damaged by the agency’s illegal activities.
We are crossing our fingers that this is not over. The union can file exceptions asking to reverse the arbitrator’s conclusion that he had no right to remedy and if rejected move on to the federal courts. The D.C. Circuit has addressed a challenge to Panel a imposed decision before and voided it. POPA v. FLRA, 28 F.3d 1148 (1994) There is no reason to believe that it will be overawed by the seven political appointees at the Panel this time.
Ideally, Pritzker’s decision is reversed, he orders a return to the status quo ante and the union can demonstrate an entitlement to back pay for harmed employees, which will then open the door to attorney fees. In the alternative, he finds the status quo is not appropriate under the FCI criteria and imposes an alternate remedy, such as bargaining a new retroactively effective replacement agreement.