New FLRA Fixes ‘Arbitrary and Capricious’ Case Law of Predecessor

After previously setting two separate standards for reviewing an arbitrator’s decision, a recent FLRA decision with its new Members complies with a decision of the DC Circuit court. The FLRA is now applying only one “standard.” This case should be required reading for the labor relations community.

Tom Beck and Pat Pizzella, former minority Federal Labor Relations Authority (FLRA) members during the Obama Administration, repeatedly (and in vain) pointed out an inconsistency in the interpretation of an important part of the Federal Sector labor law.

On the same exact issue, the U.S. Circuit Court of Appeals for the District of Columbia, over four years ago, said “In applying two different standards in these contexts, the Authority has set forth two inconsistent interpretations of the very same statutory term, and thus acted arbitrarily and capriciously.” (my emphasis). Adding insult to injury, the Court quoted minority Member Beck’s dissent in its decision.

Apparently, the Obama FLRA didn’t get it. They kept using two separate “tests” i.e., “excessive interference” and “abrogation” to decide whether a management right under the law had been violated. If the issue came to them on the appeal of an Agency Head review of language, they applied the “excessive interference” test. If it came before them in an arbitration appeal, they applied the “abrogation” test”.

FedSmith reported the DC Circuit’s decision in January 2014 shortly after it was decided. In April of 2014, FedSmith reported another case in which Member Pizzella took the opportunity in a concurring opinion to point out the Court’s ruling to the other members.

Up until June 2016, in a case involving U.S. Customs and Border Protection and American Federation of Government Employees (AFGE), National Border Patrol Council, Local 3307, the Obama FLRA continued to arrogantly (my word) ignore the DC Circuit in its decisions as pointed out by Member Pizzella in his dissent in that case.

Very recently, February 22, 2018, in a case involving the Bureau of Prisons and Local 817 of AFGE’s Council of Prison Locals, Majority Members Kiko and Abbot, after a lengthy exploration of the history of the conflicting tests, established a standard of review for arbitrator decisions as follows:

The first question that must be answered is whether the arbitrator has found a violation of a contract provision.  If the answer to that question is yes, then the second question is whether the arbitrator’s remedy reasonably and proportionally relates to that violation.  If the answer to any of these questions is no, then the award must be vacated.  But, if the answer to the second question is yes, then the final question is whether the arbitrator’s interpretation of the provision excessively interferes with a § 7106(a) management right.  If the answer to this question is yes, then the arbitrator’s award is contrary to law and must be vacated.

In other words, there is now only one standard, “excessive interference”, applicable to the determination whether an Agency management right under 5 U.S. Code § 7106(a) is violated by the language involved.

Member Dubester, in his dissent in this new case, lamely supports the Obama FLRA’s rulings despite the DC Circuit’s admonition to his FLRA in 2012 and cited by the new majority, that it (the Court) expected that Authority to act “consistent with [its] opinion” in future decisions. Of course, he was one of the members of the Obama FLRA that endorsed the contorted construction they called an abrogation test.

This case is critical reading for Agency labor relations advisors.

If you discern an opinion in any of the above, this time I think it might actually be shared by one or two Agency practitioners.

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.