REMEMBER THIS FOR WHEN THE GRIEVANCE HATERS RETURN
Although the FLRA is once again operating as a neutral and professional labor relations administrator, there will come a time when once again at least two of the three seats will be filled with Presidential appointees selected because of their disgust at, contempt for and ridicule of collective bargaining. When that time comes your union had better have learned from the legal abuses of the 2017-21 era and perfected the way you do business. Otherwise, you are going to get mowed down. At FEDSMILL.com we are keeping a list of things to do now to prepare for those days and one of them is to allege a ULP whenever grieving an alleged agency contract violation. Here is why.
During the 2017-21 period President Trump’s two FLRA appointees often overturned arbitrators’ findings that agencies had misinterpreted a collective bargaining agreement. The Trumpettes proclaimed that it was the arbitrator who wrongly read the agreement, not the agency. Rather than give the arbitrator’s decision the legal deference it is entitled to under the law and a boat load of judicial decisions including from the Supreme Court, they gave arbitrators their contempt. And they could get away with their campaign of hate because those decisions could not be appealed to court. Some of history’s most ruthless dictators did not have the power that the FLRA does when reviewing arbitrators’ contract interpretations. Not surprisingly, they used this unilateral and absolute power only to reverse arbitration decisions where the union and employee won.
But there is a way to gut the might of FLRA tyrants. All a union needs do when filing a grievance alleging the contract was violated is to also allege an unfair labor practice. For example, suppose a union files a grievance alleging that when the agency posted a vacancy announcement. The union alleged that the contract-required “10 day” posting period required ten working days, not the ten calendar days the agency used. If that case went to an arbitrator and after thoroughly analyzing the contract she agreed the simple promotion article reference to “days” meant workdays, an FLRA controlled by the likes of the two who controlled it between 2017 and 2021 could simply decide the arbitrator was wrong and toss out the union-employee victory. However, suppose the union had alleged not just a contract violation, but also a ULP, such as a repudiation of the agreement or a unilateral change of working conditions. Both are violations of 5 USC 7116(a)(1 and 5). If the union did, even if the arbitrator found that there was no ULP the union could take the case to a federal court where history shows there is a very good chance it will overturn FLRA members who second-guess arbitrators.
Naturally, FLRA appointees driven by contempt for unions and arbitrators disagree courts have this power. They disagree even though 6 federal court of appeals judges have now stated their reading of the law is wrong. Colleen Kiko-Duffy the lone union-hater holdover from the 2017-21 era just announced that she still disagrees that courts have a right to interfere with their power to destroy collective bargaining. And we assume that future appointees from the same primordial pool from which she arose will do the same. But remember that so long as the union makes it a practice to also allege a ULP when claiming the agency violated contract language unions have a very good chance of reversing and humbling these tyrants.
If you want to more deeply understand the legal reasoning behind this, check out DoDEA and FEA, 73 FLRA 398 (2022)
