FLRA Proposes Massive Rewrite of Regulations on Arbitrator Review

In the first major review of exceptions to arbitrator awards in 30 years, the Federal Labor Relations Authority proposes massive changes in the operation of the process. For better or worse? Compare the old regulations to the new in a side by side comparison. The author suggests the new regs may be the death knell for non-lawyers in the arbitration process and encourages advocates to comment.


Before we get into it, below is key information for labor relations practitioners who may want to comment on the proposed FLRA regulations on filing exceptions (appeals) to arbitrator awards:
DATES: Comments must be received on or before June 1, 2010.
ADDRESSES: E-mail written comments to engagetheflra@flra.gov, or deliver written comments to the Chief, Case Intake and Publication Office, Federal Labor Relations Authority, Suite 200, 1400 K Street, NW., Washington, DC 20424–0001.
FOR FURTHER INFORMATION CONTACT: Sarah Whittle Spooner, Counsel for Regulatory and External Affairs, (202) 218–7791.
In February,  we asked if it was time to modernize your contract’s arbitration provisions. Around the same time, FLRA told us it was considering revisions to its exception regulations and offered focus groups. We strongly encouraged practitioners to participate in the FLRA hosted focus groups and more strongly encourage you to comment on these proposed regulations.
As we’ve done before, below you’ll see a side by side comparison of the existing and proposed regulations. I think the Federal Labor Relations Authority (FLRA) would better serve the community (Is that a goal?) to use this kind of simple side by side comparison (It took me about ½ hour and I was piecing together .pdf files) as opposed to its overly complex and often confusing Federal Register process. Straight forward government? Shame on you Gilson!
In the proposed rules, FLRA states or should I say understates their content as follows;
  • Changing the Authority’s existing practice for calculating the date for filing timely exceptions, so that the thirty-day period begins on the day after, not the day of, service of the arbitration award;
  • Clarifying how the date of service of an arbitrator’s award is determined;
  • Clarifying the information and documents that must be filed with exceptions and oppositions;
  • Clarifying existing grounds for review of an arbitration award and the consequence of failing to raise an existing ground;
  • Adding an option to request an expedited decision from the Authority in certain arbitration cases that do not involve unfair labor practices;
  • Adding an option to request voluntary alternative dispute resolution services;
  • Providing various methods of resolving unclear disputes or records;
  • Clarifying the issues that must be raised before an arbitrator in order 
I won’t quibble with any of these because, as far as they go, there accurate if a little deceiving. I think there are four potential outcomes (not listed in the Federal Register) that the Federal labor relations community should address in comments.
The Mixed Blessing
FLRA is encouraging informal resolution of exceptions and that’s good. The only way to do it is using the FLRA’s CADRE group and that’s not so good. I have no objection to CADRE’s involvement but FLRA makes it the only game in town. The parties can’t even agree to an informal resolution option even if they want to since unless CADRE is involved, there’s no provision to stop the filing process, delay it or hold it in place until the parties can work it out themselves or not.   But, of course, Momma FLRA knows best and will tell us all how it should be done even though I doubt if more than a couple of FLRA’s staff have ever bargained a contract for either side.
Once More, the Law Doesn’t Matter
These regs prohibit the citing of law, rule or regulation in an exception unless they were presented to the arbitrator. This idea supports my long held belief that appointment to the FLRA leads to operating on a more ethereal plain than we mortals. Hey, FLRA, how can anybody know the arbitrator’s decision violates the law until he makes it?
Additionally, FLRA’s stance demonstrates that this FLRA will let an illegal arbitrator award stand if a party has not argued a potential illegality before the arbitrator. I hope the courts are smarter (not hard) than these folks.
Lawyers Only, Please
Arbitration in the private sector and in government was once viewed as a less formal, less procedural opportunity for parties to get answers. Once these rules go into effect, and they will, agencies who use anyone other than experiences litigation counsel to do both hearings and appeals is absolutely nuts. In a recent cases, arbitrators ordered enormous awards under EEO rules. In one very recent case, an arbitrator ordered an agency to pay a union official $300.000.00 for stress related to being the subject of discourtesy by an "acting " supervisor. (64 FLRA No. 128). No kidding! FLRA’s answer was to remand the case to the arbitrator to assess if he really meant it. Also, no kidding.
Was FLRA’s Effort at Soliciting Community Involvement Legit?
The last Focus group was held in San Francisco on March 23, 2010 and the proposed regs are signed by Chairman Pope on April 26, 2010. Now I’m pretty sure the proposed regs themselves weren’t shared with the focus groups (Correct me if I’m wrong) and yet appeared in final form less than four weeks later. Transparency? Come on? If you had them, why not share them with the community informally and publically instead of this silly little drill? One more time, shame on you.
President Obama in a Memo to Agency heads stated: "My Administration is committed to creating an unprecedented level of openness in Government.  We will work together to ensure the public trust and establish a system of transparency, public participation, and collaboration. Openness will strengthen our democracy and promote efficiency and effectiveness in Government."
I guess FLRA only reads its own decisions.

As always, the above represents my views and no one else but me is responsible for them.


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.