THE FLRA PRECEDENT PENDULUM SWINGS YET AGAIN

One of the problems with case law precedent is that it often changes every time a different political party occupies the White House (WH). Last week FLRA swung the precedent pendulum yet again reversing the anti-union, anti-arbitration precedent of the previous administration on the issue of procedural arbitrability objections, i.e., when an agency believes a law or contract provision prevents an arbitrator from even hearing a case, much less deciding it. These are often called interlocutory appeals. 

Under the last WH administration and its FLRA appointees, FLRA ruled that whenever an agency believes an issue is not arbitrable it can have the FLRA decide it rather than a professional neutral arbitrator. It wrote,

“…any exception which advances the ultimate disposition of a case – by obviating the need for further arbitral proceedings – presents an extraordinary circumstance which warrants [interlocutory] review.”

That permitted an agency to ask FLRA to dismiss a grievance if FLRA thought the grievance was filed late or with the wrong manager or lacked specificity.

That was a big change in comparison to previous decades of case law precedent favoring arbitrators deciding all but those cases where a party alleged that statutory law prevented an arbitrator from hearing a case. The change of precedent permitted the two political operatives the previous WH placed on the Authority to repeatedly rule arbitrators did not even have the power to hear the union’s grievance—or to even decide the grievance themselves. That cost a lot of federal employees their day in court before unbiased decision-makers rather than two blokes with deep anti-union political agendas.

But it is a new day at FLRA, and it has once again vested arbitrators with the power to decide the vast majority of what are called procedural objections to arbitrator jurisdiction.  It has just announced that while it will still permit agencies to ask FLRA to intervene before a case even gets to an arbitrator, “…this exception should be narrowly applied, in accordance with the following principles.”

“First, we emphasize that this exception involves only bars to the arbitrator’s authority to exercise jurisdiction over a grievance in the first place – not situations where, for example, an arbitrator is asked to find a violation, or to grant a remedy, that would conflict with governing law.

“Second, we will apply this exception only where an excepting party has demonstrated that the arbitrator lacks jurisdiction as a matter of law.

“Third – consistent with both the Authority’s extant precedent and the private‑sector principles above – we will continue to grant interlocutory review only if doing so would bring an end to the entire dispute that the parties submitted to arbitration.”

Dep’t. of the Army, Alabama and NFFE, 73 FLRA 356 (2022).

That is good news for those of us who believe that union-management disputes should be resolved by professional neutrals jointly selected by the two L-M parties rather than political appointees eager to please party leaders. It is also good news for those of us who know that as a case moves closer to arbitration it often gets settled; settlement odds drop vastly when a case is sent off to FLRA instead.

Unfortunately, there is no way to permanently and universally protect this new precedent from being reversed soon after WH politics change in the future. Nor can a union stop an agency from frivolously ignoring the new case law and filing an appeal with FLRA just to delay an arbitrator from issuing a decision. This NFFE case sat at FLRA for over two years before the agency was ordered to send it to arbitration. The best a union can do now and for the political future is to negotiate a provision into its agreement that requires both parties to submit procedural arbitrability issues to arbitrators, not FLRA, and penalizes a party if it deviates from that. Perhaps the union demands the agency pay the entire cost of any arbitration where it filed an interlocutory appeal and its argument was rejected. Or it gives the arbitrator the right to go ahead with a hearing, even if the agency refuses to show up, if the arbitrator finds the agency’s interlocutory appeal is frivolous.