The Foreboding Future of Grievances in Federal Labor Relations

By on January 13, 2011 in Current Events with 16 Comments

Take just a minute and read the following:

5 U.S. Code 7121(b)”(1) Any negotiated grievance procedure referred to in subsection (a) of this section shall—

(A) be fair and simple,
(B) provide for expeditious processing, and
(C) include procedures that—
(i) assure an exclusive representative the right, in its own behalf or on behalf of any employee in the unit represented by the exclusive representative, to present and process grievances;
(ii) assure such an employee the right to present a grievance on the employee’s own behalf, and assure the exclusive representative the right to be present during the grievance proceeding; and
(iii) provide that any grievance not satisfactorily settled under the negotiated grievance procedure shall be subject to binding arbitration which may be invoked by either the exclusive representative or the agency.”
I guess it was inevitable.  FLRA members have been whining for years about the onerous burden of clearing the backlog of arbitration appeals.  In 2010, FLRA fixed it.  They issued new regulations and developed case law that makes an appeal of an arbitrator’s award a snap.  The FLRA no longer must decide whether an arbitrator’s decision is in accordance with law, which most of us though was exactly their job.  Now they can merely claim that a decision that violates the law was really intended to do exactly that by the party’s agreement and that it’s not FLRA’s problem that the Agency “abrogated” its rights by signing the contract.  I’m not kidding or exaggerating.  It’s exactly what they’ve done.
In addition, its new rules make clear that an appealing party cannot raise an issue on appeal that wasn’t raised to the arbitrator.  This, despite the fact that an Agency, for example, has absolutely no control over what an arbitrator will decide is the issue in the case or how an arbitrator will interpret language.  Under the FLRA’s new approach to the process, one is left to wonder whether in each case, an advocate must start to present the case by arguing what “is” means.

As you read above, the black letter law states unequivocally that a grievance procedure be fair and simple and provide for expeditious processing of the grievance.   The implications of FLRA’s new regulations and case decisions make grievances anything but either of these.

So What’s the Agency’s Defense to the FLRA’s Challenge?

It is obvious to me as a former Agency rep in arbitration and unfair labor practice cases, that the best defense is a strong offense.  Thorough preparation at all stages will be essential.  Another option that some Agencies will pursue is to make a broad use of settlement to make scary or difficult issues disappear.   The problem with that approach is that the unions (despite all the rhetoric about partnering) are always on the lookout for advantage.  The FLRA’s new law gives unions unprecedented access to management rights if there is sloppy language or friendly arbitrators to work with.  I believe that practitioners must focus more on grievances and work them diligently and with expertise from the beginning.  Below I make some suggestions on what needs to be done in the current labor relations environment.

 

Recommendations for Practitioners in Grievance Handling

It should be clear that Agency managers, labor relations practitioners and lawyers have an expanded burden in addressing a grievance.   From Step One of the grievance procedure forward through the process it may be fatal to the outcome not to address any issue that may possibly arise.  My recommendation is that the following or similar questions be asked at each step and the employee/union reply be recorded and that reply be laid out and answered point by point in the decision.

  1. What article(s) and section(s)of the collective bargaining agreement was(were) allegedly violated? 
  2. How exactly was it (were these)allegedly violated?
  3. What is the basis for the interpretation of each contract provision cited?
  4. Is the employee/union representative claiming that the Agency “abrogated” its rights under any part of 5 U.S. Code § 7106 to arrive at the specified contract language?
  5. If the answer to Number 4. Is yes, is the employee/union representative claiming that its interpretation(s) of the contract provision(s) is(are) an “appropriate arrangement” under the provisions of 5 U.S. Code 7106 (b)(3)?
  6. If the answer to Number 5. Above is yes, exactly how was the employee allegedly adversely affected by the exercise of a management right in each instance?
  7. If the grievance does not address a specific contract article or section of the collective bargaining agreement, what specific provision(s) of law(s), government-wide/Agency regulation(s) or policy(ies) was allegedly violated? 
  8. Please be specific in providing the citation(s) in number 7. as it will be needed to evaluate the evidence in deciding the grievance. 
  9. How was the law, government-wide/Agency regulation or policy allegedly violated?
  10. If the alleged violation involves one ore more alleged past practice(s), what was the exact nature of each practice and exactly how was it violated? 
  11. When did the alleged practice(s) start? 
  12. Was(were) the alleged practice(s) limited to a specific group of employees? 
  13. Which employees were allegedly covered by the practice (by name and work unit)? 
  14. Who in management knew of the practice(s)? 
  15. What specific evidence exists of the alleged practice(s)?
  16. With regard to the above, exactly when did the alleged violation(s) take place? 
  17. Who exactly committed the alleged violation(s)? 
  18. What harm did the grievant allegedly suffer in each instance? 
  19. What evidence of the alleged harm exists?
  20. Does the grievance allege in any part that one or more unfair labor practices took place in connection to the event(s) or subsequent to the event(s) up to the present?
  21. If the answer to Number 20. above, is yes, has a charge been filed with the Federal Labor Relations Authority Regional Office? If so, on what date?
  22. Are any allegations of discrimination based on race, color, religion, national origin, age, gender, sexual preference, sexual harassment, physical or mental disability, or any other factor involved?
  23. If the answer to Number 22. Is yes, has the employee been in contact with an EEO Counselor?
  24. If the answer to Number  22. is yes, has a formal complaint been filed with the Equal Employment Opportunity Office in accordance with Agency policy and regulation? 
  25. If so, on what date?
  26. What employees, if any, have direct knowledge of the alleged facts supporting the grievance?
  27. Is the grievant claiming any precedent of law, decision of a court or administrative agency e.g., Federal Labor Relations Authority, Merit Systems Protection Board, Equal Employment Opportunity Commission or other governing authority exists? 
  28. If so please specify the authority and case(s) applicable?
  29. Is the employee/union representative alleging that one or more prior grievance decisions or arbitration decisions under the collective bargaining agreement is involved?
  30. If the answer to Number 29 is yes, what was the name of each grievant, if the matters ended with a grievance decision?
  31. If the answer to Number 29 is yes, what was the name of each arbitrator and the date of each decision, if the matters ended with an arbitrator’s award?

 

Recommendations for Arbitration Advocates

In reading FLRA’s recent arbitration appeal decisions, some concepts are made crystal clear:

  • Research you arbitrator.  Cyberfeds© has an arbitrator history and rulings function.  Almost every labor relations office has a subscription.  If you work in a cheap or resource starved organization, find someone with access and buy them lunch or dinner if the case is important.  I am constantly amazed at some of the arbitrators that get picked whose record shows they rarely if ever rule for an Agency.
  • If possible, it is critical to narrowly as possible define the issue(s).
  • A thorough and complete workup needs doing on threshold, remedial and merit issues. 
  • A brief is indispensible.
  • If you can get agreement on a narrow issue, do it.  If not, you must address yours, the union’s and any potential issue envisionable (a word?) in your brief.
  • Your obligation to create a complete record is more important than ever.
  • Case files used to be tabbed to reflect documents.  From FLRA’s case decisions, perhaps we should have the case file serve as an inventory specifying which box of evidence the arbitrator and subsequently, FLRA should address in a decision.  I wish I were kidding about this.
  • Since what’s at stake is a management right and whether it continues to exist under a collective bargaining agreement, inexperienced advocates do not belong in this process.
  • Agency Counsel can sometimes view arbitration as a lesser process and deserving of less attention.  Not smart in the new world created by the FLRA.

It is very difficult to get the current FLRA to do its job and pay attention to legitimate legal concerns in arbitration appeals.  The burden is yours.  I believe the courts may weigh in on this but you all know that bad cases make bad law so the GC community should get together to work on which cases should go forward. 

I guess some might say that I’m doing a chicken little on this but read the FLRA’s appeal regulationss and the September 2010 to current arbitration appeal cases and decide for yourself.  The regulation and case law changes disproportionately favor the unions while appearing neutral on the surface.  That was the intent and, unless you’re smart, that will be the effect.

As always, any opinion you find in the above is my responsibility.

 

 

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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About the Author

Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.

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