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

The FLRA conducted Focus Groups in Washington on revising its regulations. This article reports the discussion at one of these sessions and provides information on FLRA’s decision to offer regional Focus Groups as well.

In a previous article, we looked at the Federal Labor Relations Authority’s (FLRA) intention to review its arbitration regulations and suggested regional meetings to get some out of the Beltway views. Since that article FLRA has issued a press release announcing meetings in Chicago and San Francisco.
Regional Focus Group Info
The focus groups will be held on the following dates at the locations:
Chicago, IL Focus Group
Monday, March 22, 2010                 
10:00am – 12:00pm           
55 West Monroe Street                 
5th Floor Conference Room                 
Chicago, Illinois 60603
San Francisco, CA Focus Group
Tuesday, March 23, 2010
1:00pm – 3:00pm
Ronald V. Dellums Federal Building
Edward Roybal Audit. & Conf. Ctr.
5th Floor North Tower, Conf. Rm. 1H
301 Clay Street
Oakland, CA 94626
Anyone interested in participating in a focus group must register by contacting the FLRA’s Case Intake and Publication Office at (202) 218-7740. Also, go back and print out the previous article to take with you. It has copies of the statute and regulatory language on this issue included. Whether you represent union or Agency, go to these meetings if you can and let the FLRA know what you think. 
Washington Focus Group Discussion
As with the National Council meeting, I was fortunate to get an attendees notes from one of the practitioner focus groups. I would welcome some notes or comments from an arbitrator who attended that focus group. As with the Council notes, I apologize for any liberties I take in advance as well as any mangling of the person’s perceptions.
As you will recall, two of the three focus groups involved practitioners and the third involved arbitrators. 
How the Meeting Went
Member Beck opened advising that the vast majority of cases the FLRA decides are arbitration exceptions. Based on focus group input, the FLRA will look to improve the arbitration exception process. He noted that in the previous groups, arbitrators stated they would like to see better advocates and the advocates said they would want to see better arbitrator decisions.
Specifically, the FLRA is looking at whether it should: 
  • Revise its regulation;
  • Establish an arbitration training program; and/or
  • Publish a guide to arbitration.  
The biggest complaint received was the difficulty in determining the time limits for filings. 
As for the regulation, the group recommended that all time limits and other procedural matters be contained in the part of the regulation addressing arbitration exceptions (5 CFR Part 2425) rather than in a separate section (Part 2429). It was also mentioned that the FLRA could identify in its regulations the specific bases for filing an exception. . ."other grounds similar to those applied by the Federal courts" and provide a brief discussion on each. (This latter part can be done in the regulation or in a guide.)  
Expedited decisions continue to be a good idea. (A short, timely denial of an arbitration exception where the FLRA does not discuss the specifics of the exception.)   One person suggested that parties can request expedited decisions. 
My notetaker had the opinion: 

“I don’t think this is a great idea because if the FLRA overturns an arbitrator, it would be good to have a more detailed decision so that we can see what basis the FLRA found to overturn an award. In other words, a reversal of an arbitrator’s award is a good learning tool for all LR practitioners.”

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.

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.