FLRA’s Christmas Present to a Union?

Groucho Marx said “Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly, and applying the wrong remedies.” In a recent arbitration appeal, the FLRA reversed itself over an issue involving an agreement made by political direction with the union in the waning days of the Clinton Administration. The current Chairman, a member when the original case was decided did not dissent then but now gives the union not only a second bite of the apple but, arguably, the whole bushel. Is it a holiday gift? You decide.

I recommend, for
your reading pleasure, two cases decided by the Federal Labor Relations
Authority. The first, 65
FLRA No. 62
 decided recently reverses
the earlier 60 FLRA No. 158 decided in 2005.

In what could
only be called a politically motivated arrangement the Agency, in 2000, agreed
to the following language:

“The [Agency] shall request OPM approval for the next five
years to increase the special schedule so as to maintain the 10% and 15% salary
differentials relative to the updated [General Schedule] rates, in a manner
consistent with OPM regulations. If OPM refuses the request, the Agency shall
enter into discussions with [the Union] in order to provide substantially
equivalent alternatives.”

Now one might conclude, reading the language, that the second
coming had indeed taken place and that these folks must have been authorized by
a higher authority than the Congress to negotiate pay. (No such authorization existed.)

The OPM apparently approved the Agency request for 2001 but
denied it in 2002. The union grieved and
the arbitrator enforced the agreement language. Of course, by this time there were new and not the same politicals in
the Agency as in 2000, so the Agency appealed the arbitration decision and as Mr.
Holmes would say, the game was afoot.  
The FLRA, in 2005, concluded:

For the foregoing reasons, we conclude that the second
sentence of Section A.2, as interpreted and enforced by the Arbitrator, does
not constitute an appropriate arrangement under § 7106(b)(3) of the
As noted previously, the Union does not raise other subsections of
§ 7106(b) and, as a result, we do not address those subsections.
 See NLRB, 60 FLRA
at 579-80. Thus, the award does not satisfy prong I of
 BEP, and we do not
address prong II of
 BEP. Accordingly, we set
aside the award as contrary to management’s right to retain employees under
§ 7106(a)(2)(A) of the Statute.”

Ms. Pope (then the minority Member) didn’t dissent. Her view is reflected in footnote 3:

“Because this case was litigated after the Authority
determined to apply the excessive interference standard in resolving exceptions
to arbitration awards, Member Pope agrees that it is appropriate to apply the
excessive interference standard here. See United States Dep’t of Veterans Affairs, Augusta, Ga., 59 FLRA 780, 786 n.1
(2004) (citation omitted) (Member Pope dissenting in part on other grounds).”

In the latest
case the FLRA, having tanked the “Excessive Interference Test”, now moves on to determine whether the Agency
agreement in 2000 was an “appropriate arrangement”. In one of the most amazing twists of logic
this Jesuit educated boy has ever read, the current FLRA finds:

“Contrary to the
arbitrator’s determination in PTO I,
the Arbitrator in this case expressly determined that § A, including § A.2,
constitutes an arrangement under § 7106(b)(3) of the Statute. Award at 26. Although
the Agency argues that the decision in PTO
I precluded the Arbitrator from making this determination, the Authority
has acknowledged that the enforceability of a contract provision depends on the
particular circumstances of each case. In this connection, the Authority has
held that if a particular arbitrator’s interpretation of a contract provision
is inconsistent with a management right, then the award will be set aside, but
“the contractual provision, susceptible to a different and sustainable
interpretation by a different arbitrator, will not be affected.

So, in essence,
what was not an appropriate arrangement in 2005 magically becomes one in 2010.

Member Beck
makes an appeal to the other members in his dissent:

“It is plain to me that the
Authority cannot permit an arbitrator to enforce contract language that the
Authority has previously determined – after the question has been fully
litigated by the same parties – to be unenforceable.”

Member Beck’s “Bah Humbug” apparently fell on deaf ears as the other members decided that a
gift was in order.

There is a growing
movement in the land that asks whether a political party supported by a public
sector union can then deal with that union in such a way as to protect the
public interest when it comes to power. If those backing that movement are looking for an Exhibit A, they’ll
find it in the rulings of the current FLRA which purports to be neutral while
advantaging a political contributor. 

Ambrose Bierce defined politics as,
“Politics, noun. A strife of interests masquerading as a contest of principles. The conduct
of public affairs for private advantage.”

 In this case the
advantage of the union.

As always, any
opinion rendered above is mine alone and does not result from the contributions
of anybody.  

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.