FLRA Holds Focus Groups on Arbitration: Takes Fedsmith’s Advice on Holding Regional Focus Sessions

 

Another suggestion was for the FLRA to issue a short decision just to the parties, and then follow up with a more detailed published decision. The FLRA noted that once it had the answer, the decision was issued shortly thereafter so there wouldn’t be great benefit from this.

 

The FLRA asked if we wanted an FLRA Arbitration Exception Form, like they have for negotiability. One person said that if the FLRA has a form, it should be able to be filled out on the computer. There was concern voiced that if the FLRA develops a form, some practitioners would simply check every reason provided on the form for its exception and that this would just create more work for the other party and the FLRA. It was suggested that it may be better if the FLRA simply puts out a guide or handbook addressing arbitration exceptions.

 

Training was discussed in some detail. Someone said if the FLRA puts out a form, it should also provide training. There were a number of suggestions that arbitrators get training. The FLRA noted that it is considering such training and asked if such training should also be available to practitioners and should the two groups be in the same class? There didn’t seem to be any agreement on this last question, it could be joint or separate. It may all depend upon who invites the FLRA to do the training.

 

There seemed to be agreement that the training should not be how to advocate your case, but more on how the Statute and the FLRA’s rules come into play in arbitration exceptions. 

 

For example, training could be on appropriate remedies—what constitutes an appropriate remedy and the arbitrator’s authority to fashion a remedy. A comment was made that training can address something like: When presenting your case, if there is a potential for exception, here is what the FLRA will look for in an exception and your need to present this information to the arbitrator for the FLRA to consider it in the exception.

 

An arbitration guide can identify differences between federal and private sector arbitration as well as all other issues related to arbitration.

 

Someone suggested a good training "walk away" identifying where arbitrators go wrong in their awards, basis for exceptions, timelines, etc. These training documents should be posted on the FLRA web. Arbitrators typically go wrong in not knowing FLRA case law and the obligation to apply it. Advocates need to take responsibility for educating arbitrators. 

 

One person opined that the party filing an exception should be able to raise an argument that the award violates law at any time in the proceeding, even if the matter was never raised before the arbitrator. Failure to address such an argument could result in a conflict with a negotiability decision. Generally, any argument must be raised to the arbitrator for the FLRA to consider it in an exception.

 

Member Beck seemed particularly concerned with remedies. He noted that the parties, typically the union, need to be better at formulating appropriate remedies and the agency needs to advise the arbitrator as to what constitutes an appropriate remedy…even if need be in the opening argument. It appeared his concern stem from seeing so many "remedy" exceptions.

 

The issue of alternative dispute resolution (ADR) was raised. There was discussion about how that would apply in an arbitration case after the arbitrator rendered his/her decision. Member DuBester discussed the benefit of mediation/ADR in the grievance process. It was unclear how the FLRA fit into this effort. 

 

The FLRA asked about the potential for a post-filing hearing? It appears that in a few cases, the FLRA is unclear what the parties are arguing or there is conflict in their arguments. In such cases, the parties would be asked to clarify the particular issue in a teleconference. 

 

Another area raised was having a neutral assess the case (let one side or the other know whether the arguments have any merit) prior to a decision being issued. A number of participants voiced concern over this noting particularly that the individual wouldn’t really know how the FLRA would decide.

 

Some participants noted that if there was a new rule on settlement discussions/ADR, the time limits for filing would have to be delayed. 

 

The Authority said that if after reviewing all the comments it believed a change in its regulations would be necessary, they would be staffed. It is assumed that means as proposed rules in the Federal Register.

 

A number of participants told the FLRA that they believed the session was extremely beneficial. My note taker commented about holding off on such a conclusion until the proposed rules issued.

 

Some Thoughts

 

 It appears, at least until we see the proposed revisions to the regulations, that the FLRA’s interest is in reducing the number of exceptions by improving advocacy. It may surprise some to hear this from me but that’s a good goal. The practical problem is with bites of the apple. Exceptions give a party one more chance to try and win a case. Goethe said, “In all things it is better to hope than to despair”. Despair in this case involves either telling a manager or a union member that their case tanked. Few advocates rush to do that job. 

 

Also, kudos to the FLRA Members who attended and apparently led these focus groups. The more interaction with practitioners, the better the knowledge base.

 

I know that some find the above a bore. Keep in mind that much of the case law of the FLRA finds its basis in arbitral exceptions, so pay careful attention to these cases. Also, watch out for ADR in this area. Arbitration is the original DR and gives an answer if you’re ready for it.

 

As always, the opinion part of this is solely my responsibility. If I mischaracterized the meeting, and you were there, correct me in the comments. Regarding holding regional sessions, I don’t really think they took my advice. It was a good idea no matter where it came from. But as all my readers know, I can’t help a little (or big) poke at them from time to time.