FLRA Excited About Revising Arbitration Regulations: Is It Time to Worry?

FLRA has announced focus group meetings for the next two weeks to prepare for revising its arbitration regulations. The author strongly recommends that practitioners attend and speak up at these gatherings. The author suggests you take the law, the applicable FLRA Regulations and some suggested questions if you decide to go.

 Recently the Federal Labor Relations Authority (FLRA) issued a press release announcing focus groups for arbitrators and practitioners relating to the grievance arbitration process.

To quote the press release, "the FLRA is seeking the input of stakeholders as part of its initiative to both review and revise the FLRA’s arbitration regulations and to provide arbitration training to its customers and arbitrators. "Obtaining the views of the stakeholders is critical to the review process," said FLRA Chairman Carol Waller Pope.
This is an exciting initiative building upon years of experience and review that will result in regulatory changes and an educational program – including training sessions and tools – that will make arbitration case processing more effective and efficient."
The invitation also includes the following "The FLRA also invites members of the Federal labor-management community during the month of February, to provide ideas and views on the grievance arbitration process, the FLRA’s procedures, regulations and decisions, and suggestions for training by sending an email to the FLRA’s "Engage the FLRA" email address at engagetheflra@flra.gov."
President Obama has said, ""We face a deficit of trust — deep and corrosive doubts about how Washington works that have been growing for years." For that reason, perhaps FLRA should consider similar focus groups in the cities where it maintains offices to get a field perspective as well.
The FLRA’s claimed goal of efficiency and effectiveness may be a first for them as any Agency practitioner knows and the idea of them messing around in arbitration should scare any practitioner whether union or management. In fact the only good that could likely come from it is a commitment by the members and the General Counsel to adopt a Collyer Doctrine (SEE Collyer Insulated Wire, 192 N.L.R.B. 837 (1971)) deferring an issue brought before it to arbitration if the issue can be resolved under the collective bargaining agreement in arbitration. 
I promise that should the FLRA do such a thing, I’ll never write another word critical of the Agency. That should give you some idea of the chances of such an occurrence.  
Focus groups will be held at the Federal Labor Relations Authority, 1400 K Street, NW, 2nd floor, Washington, DC 20424 on the following dates and times:
  • Arbitrator Focus Group: Thursday, February 18, 2010  1:00pm – 3:00pm
  • Practioner Focus Groups: Tuesday, February 23, 2010 1:00pm – 3:00pm and Thursday, February 25, 2010 10:00am – 12:00pm 
If you want to participate, you must register by contacting the FLRA’s Case Intake and Publication Office at (202) 218-7740.
Some Suggestions for Issues to Raise at these Meetings
If you attend, you’ll be in a position to judge whether the FLRA has already made up its collective mind or whether there’s a true interest in your input. In any case, it might be interesting to ask some questions to get the meeting started. Consider these, at a minimum:
  • What does the FLRA perceive as problems with the current regulations? (BTW, they were last revised in 1986)
  • How about some statistical help? Such as:

o  In an average year, how many exceptions are filed?

o  What’s the box score for exceptions, in other words, how many were reversed? How many were modified? How many left stand?

o  What % of exceptions are filed by Agencies? By Unions?

o  What % of exceptions are filed in the courts?

o  How have FLRA decisions fared in the courts? How many sustained? Reversed? Modified?

o   How many exceptions have been filed with MSPB? EEOC?

· What procedural issues have arisen that affected the FLRA’s ability to decide an exception? Timeliness? Failure to state a basis? Etc.?

What to Take to the Focus Group Meeting
If you decide to attend, must take items include the applicable statutory provisions of which there are only three and the current regulations. Both are listed below.
From the statute at title 5:
§ 7105. Powers and duties of the Authority
 (a) (2) The Authority shall, to the extent provided in this chapter and in accordance with regulations prescribed by the Authority—
 (H) resolve exceptions to arbitrator’s awards under section 7122 of this title; and
§ 7121. Grievance procedures
 (a) (1) Except as provided in paragraph (2) of this subsection, any collective bargaining agreement shall provide procedures for the settlement of grievances, including questions of arbitrability. Except as provided in subsections (d), (e), and (g) of this section, the procedures shall be the exclusive administrative procedures for resolving grievances which fall within its coverage.
 (b) (1) Any negotiated grievance procedure referred to in subsection (a) of this section shall—
 (C) include procedures that  (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.
(2) (A) The provisions of a negotiated grievance procedure providing for binding arbitration in accordance with paragraph (1)(C)(iii) shall, if or to the extent that an alleged prohibited personnel practice is involved, allow the arbitrator to order—
(i) a stay of any personnel action in a manner similar to the manner described in section 1221 (c) with respect to the Merit Systems Protection Board; and
(ii) the taking, by an agency, of any disciplinary action identified under section 1215 (a)(3) that is otherwise within the authority of such agency to take.
(B) Any employee who is the subject of any disciplinary action ordered under subparagraph (A)(ii) may appeal such action to the same extent and in the same manner as if the agency had taken the disciplinary action absent arbitration.
 7122. Exceptions to arbitral awards
 (a) Either party to arbitration under this chapter may file with the Authority an exception to any arbitrator’s award pursuant to the arbitration (other than an award relating to a matter described in section 7121 (f) of this title). If upon review the Authority finds that the award is deficient—
(1) because it is contrary to any law, rule, or regulation; or
(2) on other grounds similar to those applied by Federal courts in private sector labor-management relations;
the Authority may take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations.
(b) If no exception to an arbitrator’s award is filed under subsection (a) of this section during the 30-day period beginning on the date the award is served on the party, the award shall be final and binding. An agency shall take the actions required by an arbitrator’s final award. The award may include the payment of backpay (as provided in section 5596 of this title).
The FLRA’s current Regulations:
Authority:   5 U.S.C. 7134.
§ 2425.1     Who may file an exception; time limits for filing; opposition; service.
 (a) Either party to arbitration under the provisions of chapter 71 of title 5 of the United States Code may file an exception to an arbitrator’s award rendered pursuant to the arbitration.
(b) The time limit for filing an exception to an arbitration award is thirty (30) days beginning on the date the award is served on the filing party.
(c) An opposition to the exception may be filed by a party within thirty (30) days after the date of service of the exception.
(d) A copy of the exception and any opposition shall be served on the other party.
[45 FR 3513, Jan. 17, 1980, as amended at 46 FR 40675, Aug. 11, 1981; 49 FR 22623, May 31, 1984]
§ 2425.2   Content of exception.
An exception must be a dated, self-contained document which sets forth in full:
(a) A statement of the grounds on which review is requested;
(b) Evidence or rulings bearing on the issues before the Authority;
(c) Arguments in support of the stated grounds, together with specific reference to the pertinent documents and citations of authorities; and
(d) A legible copy of the award of the arbitrator and legible copies of other pertinent documents.
(e) The name and address of the arbitrator. [45 FR 3513, Jan. 17, 1986, as amended at 51 FR 45755, Dec. 22, 1986]
§ 2425.3   Grounds for review.
 (a) The Authority will review an arbitrator’s award to which an exception has been filed to determine if the award is deficient—
(1) Because it is contrary to any law, rule or regulation; or
(2) On other grounds similar to those applied by Federal courts in private sector labor-management relations.
(b) The Authority will not consider an exception with respect to an award relating to:
(1) An action based on unacceptable performance covered under 5 U.S.C. 4303;
(2) A removal, suspension for more than fourteen (14) days, reduction in grade, reduction in pay, or furlough of thirty (30) days or less covered under 5 U.S.C. 7512; or
(3) Matters similar to those covered under 5 U.S.C. 4303 and 5 U.S.C. 7512 which arise under other personnel systems. [45 FR 3513, Jan. 17, 1980]
§ 2425.4   Authority decision.
The Authority shall issue its decision and order taking such action and making such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations. [45 FR 3513, Jan. 17, 1980]
Why It’s Important to Attend
Please take the FLRA up on its invitation. If they want to train on filing exceptions to arbitration awards, that’s obviously their business. However if they want to train on arbitration and grievance handling, what is their expertise? FLRA has absolutely no role in grievance handling and unless you’re talking about some of the current political appointees, no experience in taking a case through the grievance process and on to arbitration. Remind them of that if you get the chance.
As always, these views are mine and do not represent my employer, publisher or wife who, by the way, remains convinced with good evidence that Executive Order 13522’s deadlines will not be met.


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.