Newest FLRA Member Seeking Moderation in Labor Relations Program

By on April 9, 2014 in Agency News with 10 Comments

The Federal Labor Relations Authority (FLRA) is an independent  federal agency created by the federal labor relations statute.  The labor relations law provides the legal foundation for federal employees to select a union as a representative for all employees in the bargaining unit and to negotiate a labor contract.

The FLRA has three full-time Members appointed for five-year terms by the President with the advice and consent of the Senate. The FLRA investigates and decides allegations of unfair labor practices, union representation issues, exceptions to grievance arbitration awards, and decides whether a subject is one that can be bargained between an agency and a labor union within the language of the labor relations law.

Pizzella PhotoThe newest person appointed as one of the three FLRA Members is Patrick Pizzella. He became an FLRA Member in November 2013. Pizzella has worked in six different agencies, most recently as Assistant Secretary of Labor for Administration and Management at the  Department of Labor from 2001 to 2009.  He  initially came to Washington, DC during the Reagan administration.

FedSmith met with him at his office in Washington, DC to seek his views on the federal program and his role at the FLRA.

Pizzella’s background differs from the other two FLRA Members in that he is a Republican and has worked in managing several federal agencies. Under the provisions of the federal labor relations statute, no more than two of the FLRA members can be from the same political party. FLRA Chairman Carol Waller Pope is a career federal employee, primarily with the FLRA, and nominated as an FLRA Member by President Clinton. The other FLRA Member, Ernest DuBester, is a former union attorney and legislative counsel for the AFL-CIO.

Member Pizzella noted that, despite any political differences between the three Authority Members, there have been 58 unanimous cases decided by the FLRA since he started his term. There were 10 separate concurrences in these decisions. He finds the atmosphere at the FLRA to be “collegial” and the FLRA staff very professional.

Pizzella sees “official time” as a significant issue before the Authority and a “big issue” that is recurs in various forms. This matter has been the subject of proposed legislation and controversy as reported on FedSmith.com. Pizzella has been aware of the controversy and the cost to the government of the use of official time by union representatives in his role as a management official.

No doubt, the opinions or, at least, the concurring opinions written by Member Pizzella, make for more interesting reading than the usual reports or decisions issued by federal agencies. They may also be more controversial with some parties who may see their arguments as somehow rising to the level of a federal case rather than reaching an agreement with the opposing party.

While at the Department of Labor, he authored an article entitled “A Beneficial Union” in which he wrote that “During these times of limited resources, the Labor Department has taken advantage of every small opportunity to achieve savings, including in the area of official time-authorized, paid time off from assigned duties so government employees can represent a union or its bargaining unit employees.” He outlined the strategy used by the Labor Department to cut down on the “staggering costs in this area.”

The result of this effort at the Labor Department was to cut down on the use of official time decreasing those hours “16 percent from fiscal 2006 to fiscal 2007. According to OPM data for the same time frame, the government-wide average actually increased by 3 percent. The Labor Department’s reductions since fiscal 2004 have saved $1.1 million.”

That same concern about the cost in time and money for processing cases or using official time was expressed in a concurring opinion in the initial FLRA decision in which Pizzella participated. In this case, he wrote that “the taxpayer is the FLRA’s biggest stakeholder….[O]ne must not forget that in every one of these all of the parties—agencies, unions, arbitrators and employees of the Authority itself—and the costs associated with these cases—are paid for by the hardworking American taxpayers….I do not believe that, in carrying out my responsibilities as a Member of the Authority, I can ignore this fact any more than I can ignore the plain wording of the Statute or the precedents that have been established by the courts.”

While that sentiment is certainly one that many would appreciate, he went on to note that many cases in the federal labor relations program are frivolous. “Because taxpayers are footing the bill—there is no shortage of cases that many would describe as frivolous. For example, in one notable case, the taxpayers paid for the parties to bicker over whether the agency or the union should pay the cost of leftover food from a union-sponsored event that had lower-than-expected attendance purportedly because the agency would not permit the union to use its public address system….[F]ederal labor unions initiate well over 90% of the cases that come before the Authority….[C]ases of this nature have caused the U.,S. Court of Appeals for the F.C. Circuit to bemoan them as the type of disputes that “could only arise between public employees and a governmental agency.”

The gist of this time and effort is that “filing of what could be considered frivolous grievances unwisely consumes federal resources…serves to undermine “the effective conduct of [government] business, and completely fails to take into account the resulting costs to the taxpayers who fund agency operations and pay for the significant costs of official union time….”

But, while many taxpayers who are not involved in the federal labor relations program would not take issue with these comments, those who are involved in the program may not be in full agreement. In their concurring opinion, Chairman Pope and Member DuBester wrote, apparently in regard to Pizzella’s comments on the expense of frivolous cases: “Where other statutory and regulatory provisions apply, we are guided…by the fundamental principle that the terms and intent of those statutory and regulatory provisions control, not purely policy-based considerations….[W]e will not comment further on the outside-the-case considerations raised in our colleague’s concurring opinion.”

Pizzella notes that he intends to continue to shed light on frivolous cases that come before the FLRA and he has done so.

For example, in one case involving AFGE and the Social Security Administration, Pizzella wrote in a concurring opinion: “If this grievance was turned into a movie, it should be titled “Three Degrees of Separation from Reality.” (Kevin Bacon call your agent!!)” At issue in this case before the FLRA was an appeal from an arbitrator’s award that the agency did not violate an agreement when, on a particular day, the temperature in one of its offices dropped below what the Union contended were permissible limits. The case was dismissed.

In another case involving AFGE and the Social Security Administration, an arbitrator issued an award directing a performance rating be raised to a level four–a level that did not exist in the agency system. The arbitrator clarified the award to find that the rating should remain at a level three. The FLRA denied the union’s request to reconsider the case.

In a concurring opinion, Member Pizzella opined: “I am uncertain whether I am more surprised that the Arbitrator would impose a remedy that is impossible to implement or that the Union would ask the Arbitrator to “clarif[y]” his award to direct a level 5 rating after the Arbitrator had already determined that the Union had presented ‘insufficient information’ to support a level 5 rating.” As a conclusion, he essentially took the union to task by noting that “I write separately to emphasize that the foundation of the Union’s actions − requesting the Arbitrator to direct a level 5 rating…and implement a remedy that is ‘not required,’ in both its original exceptions and again in this request for reconsideration − does not “encourage[] the amicable settlement[] of disputes between employees and their [agencies].”

Pizzella would prefer to use the agency’s resources for more serious issues. He mentioned specifically two cases.

The first  involved Eglin AFB, Florida and an AFGE Local involving a suspension for an employee (who filed a grievance) when a toddler “ ‘walk[ed] out of the playground through an unclosed gate in the fence surrounding the playground and proceed[ed] down the sidewalk adjacent to the playground’” while the grievant was conversing with a parent. While noting it is a serious case, his concurrent opinion in the decision noted that “it defies belief that the Union would expose itself and the Agency to the embarrassing argument that a five-day suspension is “excessive” under these circumstances. In fact, it is difficult to imagine any set of factors that could mitigate against the gravity of this offense.”

The second case involved an overtime dispute with Customs and NTEU. Concurring in the decision rejecting reconsideration of the union’s appeal, Pizzella noted the same issue had been brought to the FLRA on three different occasions with the same result and wrote: “Albert Einstein is said to have defined insanity as “ ‘doing the same thing over and over again and expecting different results.’ ”

He also noted that while the issue was serious, re-litigating the same issue repeatedly “in the hope of achieving a different result – “ ‘unwisely consumes federal resources . . . [and] undermine[s] ‘the effective conduct of [government] business.’ ”

Since the federal labor relations program was put under a statute in 1978, numerous speeches have been given decrying the minutiae often argued and prosecuted in the federal labor relations program. In most cases, the speaker obviously believes that we could dispense with many cases if people were only reasonable and would agree with the positions elucidated by the speaker.

Member Pizzella is seriously concerned with the amount of time, money and effort spent on frivolous issues. He notes that he has worked in agencies where cases of a minor nature took large amounts of time and money away from accomplishing the mission of the agency. He is obviously pursuing those concerns at the FLRA where his opinion will have more impact than it had while he was a senior agency manager.

While many in the labor relations program will agree with his position, and certainly most taxpayers would agree if they were aware of how much time and effort is spent on issues that would seem to most as a minor issue, turning around the focus of a program as established as the federal labor relations program with its entrenched interests will not be an easy task.

Whether a reader may agree or disagree with Member Pizzella’s positions and comments, his concurring opinions have certainly made for more interesting reading and many taxpayers would probably thank him for pointing out some of these issues that can impact almost all federal agencies.

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources.

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