WHEN THE GERMANS BOMBED PEARL HARBOR

One of the great lines from film is the Animal House passage where one of the frat boys declares that nothing is over until the frat declares it over—just like it wasn’t over for America when the “Germans bombed Pearl Harbor.”  Despite a minor historical flaw, it is a good piece of wisdom to keep in mind when negotiating over the arbitration procedure in a new contract.

It takes the union a lot of work to get a case from an initial grievance submission all the way to an arbitration decision. All those hurdles have the effect of ensuring that, typically, only very important cases get arbitrated.  They either involve lots of back pay for employees, critical contract interpretations, or even a decision on whether a past practice existed.

However, FLRA all too often seems to callously ignore the importance of deciding the dispute as well as all the time, money and effort that went into generating a decision. When the arbitrator’s decision comes before the Authority on exceptions, it has the right to correct the arbitrator’s remedy, sustain it, remand it to the parties for further analysis, or just void the decision without a remand, which kills the case. It is that last option that makes no sense to practitioners and wastes everyone’s funds. If the decision was flawed, why would FLRA not ALWAYS remand the case to the parties for correction or supplementation, especially where it chooses not to make the correction itself?

The Authority vacillates on the obligation to remand depending on who sits on it. For example, in AFGE, 61 FLRA 315 (2005) the Authority, under Republican control, declared that it could void, vacate or set aside an arbitrator’s decision without returning it to the parties with an order that it be resubmitted to the arbitrator for correction. Member Pope protested in a dissent, noting how unjust it is not to remand.

I disagree with the majority’s decision to set aside the deficient remedy without remanding the award to the parties/Arbitrator to formulate an alternative remedy. By leaving the contractual violation intact, but finding deficient the only remedy that was awarded for the violation, the majority continues its unjust practice of depriving employees of redress for contractual violations while permitting agencies to evade liabilities for such violations. The majority further compounds its error, as it has in the past, by refusing to explain what “facts and circumstances” it examines in considering whether to remand an award, and why it finds no such facts and circumstances here. Accordingly, and consistent with my dissents in United States Dep’t of Veterans Affairs, Cleveland Reg’l Office, Cleveland, Ohio, 59 FLRA 248 (2003) and United States Dep’t of Justice, Fed. Bureau of Prisons, United States Penitentiary, Marion, Ill., 59 FLRA 811 (2004), I dissent in part.

Under the current Democratic controlled Authority, where Carol Pope now sits as Chair, the FLRA has taken a different position that is far more likely to produce an official remand when there are technical errors.

In cases where the Authority sets aside an entire remedy, but an arbitrator’s finding of an underlying violation is left undisturbed, the Authority remands the award for determination of an alternative remedy. AFGE, 66 FLRA 81 (2011)

While the federal sector practice seems to be to accept the FLRA’s decision to remand or not, nothing bars the union from negotiating into its own term contract arbitration procedure the right to resubmit the case to the arbitrator when the FLRA vacates, voids, or overturns the arbitrator’s decision.  In fact. given that there is virtually no way a union can challenge in court FLRA’s whimsical remand policy, bargaining is the only solution.

For example, if an arbitrator finds the agency treated a promotion candidate unfairly in violation of the contract and awards her retroactive selection, it is certainly possible that the FLRA could overturn that remedy as a violation of the Back Pay Act. However, why should the employee lose out on any remedy because the arbitrator made a technical error?

The union contract should provide that in cases like that the union can return the case to the arbitrator for a revised remedy. Under law, if an arbitrator finds a violation of Title VII’s anti-discrimination protections, but imposes a legally incorrect remedy, the case must go back for a revised arbitration decision. That statute requires that if there is a violation there must be a remedy. (See AFGE, 66 FLRA 81 (2011) fn. 16) It is time to treat all violations of contract, regulation or law that way.

(Originally posted on December 13, 2012)