IS LYING THIS FLRA’S GREATEST POWER
A new decision from those twin Trumpian towers of truth-lite thinking highlights the greatest power political appointees have to abuse electoral rivals. Kiko and Abbott wrote in DoD, 70 FLRA 654 (2018) that, “…we find that, on May 3, 2010, the Agency expressly notified the Union that it could not, and would not, fully comply with the awards. We also find that, on August 18, 2010, the Union expressly acknowledged that the Agency had not complied with the awards.” Consequently, when the union waited until October 6, 2015 to file a ULP it was too late. The case they described is unquestionably an open and shut case. The union loses.
However, the facts they built their decision upon are not the facts of this case. The case they describe exists only in their imagination. At best, Kiko and Abbott cherry picked a few facts from the actual case; at worst, they may have stepped all over a Commandment.
The actual facts of the case were that in May 2010 the Agency (DoDEA) did not say it could not comply, but notified the union that (1) another agency (DFAS), that would have to do the work the arbitrator ordered, did not consider itself bound by the arbitrator’s order, and (2) it forwarded DFAS’ assessment of the feasibility of complying with the award. The Agency did not say it would never-ever comply. In fact, from May 2010 through May 2015, the Agency repeatedly assured the Union that it was working towards compliance with the award, and that the Agency would continue to work on making the required changes. The Agency even continued to meet with the union and arbitrator during that time to update them on its progress complying with the award. (Presumably, the arbitrator did not interpret his original award as requiring compliance by a certain date or he would not have retained jurisdiction to oversee implementation progress.)
Indeed, it was not until May 2015 that the union realized there was no hope of compliance and asked the arbitrator to issue a decision certifying that. That decision came out in August 2015 and the union filed the compliance ULP in October 2015. We know those are the facts because that is what the ALJ found to be the facts—and in labor relations the facts the ALJ or arbitrator finds control unless some reviewing body, like the FLRA, can show a gross factual error on the arbitrator’s part. Kiko and Abbott do not like being hemmed in by the people the statute authorizes to determine the facts. So, Kiko and Abbott make up their own facts by omitting, mischaracterizing, and creating facts. It makes them enormously powerful. (And please don’t write us about how unlikely it is that a devout Catholic like Kiko, as she has advertised, would lie. Catholics make Confessionals for a reason and their Mea Culpa is not a line from an Abba song. Write her Bishop or the Pope instead of us.)
The FLRA decision reminds us of an opinion Chief Justice Roberts issued in 2004 as a member of the D.C. Circuit. The decision slapped the FLRA down for its incorrect view of when a ULP alleging non-compliance with an arbitration award is timely. That court wrote:
If we were to accept the Authority’s interpretation, we would be left with the absurd situation of charges that could never be filed…. If, for example, an arbitrator’s award on January 1 required the agency to take action within seven months after the award became final, a charge of inaction would not be ripe until seven months later on August 1. But under the Authority’s interpretation the limitations period would start running as soon as the award became final, making the period expire six months later on July 1 — before the claim became ripe. This is neither supported by the statutory language that requires that a ULP actually occur before the limitations period can begin to run, nor is it a workable policy.
It will be interesting to see if the Circuit Courts get another chance to slap FLRA down