In April and May, the Federal Labor Relations Authority (FLRA, the Authority) decided three cases, each of which has a strongly stated policy holding on the matter at hand. These cases are essential reading for practitioners, both union and management.
This FLRA is not beating around the bush in these decisions. It is sending clear messages to the community and, I believe, strong directions to arbitrators on what it will uphold or not in their decisions.
FLRA Condemns “Technical Hair Splitting and Artful Pleading” in a Case involving the Election of a Forum Under § 7121(d)
The first case involving SSA and IFPTE, 71 FLRA No. 23 (May 16, 2019), there was a follow-on reprisal allegation to an EEO Complaint filed as a grievance. Read the entire decision, but the following is the gist:
Just as in Marshals Service, by filing a formal EEO complaint concerning the investigation, the grievant elected that procedure and § 7121(d) foreclosed the grievant from later filing a grievance on the reprimand letter resulting from that investigation. In short, the investigation merged with the discipline as a single matter under § 7121(d). The dissent relies on a flawed rationale which forces us to make a clear distinction. Past majorities relied on interpretations of § 7121(d) and “matter” that, for all practical purposes, permitted grievants and unions to parse the fundamentally same matter into separate complaints for no other purpose than to get two bites of the proverbial apple. We do not believe that Congress intended for the application of the election-of-forum provisions – §§ 7116(d) and 7121(d) – to be based on “technical hairsplitting and artful pleading.” Instead, theses statutory provisions were intended to prevent unnecessary or redundant filings on related, similar, or same matters. (My Emphasis)
Authority Establishes an Agency Statutory Right to Require Information from the Union Before Approving Official Time
In the second case involved Customs and AFGE, 71 FLRA No. 22 (May 15, 2019), FLRA found the arbitrator’s award to be contrary to § 7131(d). Let’s allow the Authority to speak for itself in this matter.
The Agency argues that the award is contrary to law because it prevents the Agency from “gathering . . . very basic information” that the Agency needs to determine whether an officialtime request should be approved.
Section 7131(d) of the Statute states that, in order to perform the activities specified in that subsection – which include the activities at issue in this case – “any employee representing [a union]. . . shall be granted official time in any amount that agency and the [union] involved agree to be reasonable, necessary, and in the public interest.” But, as relevant here, the parties’ agreement does not allot the Union a fixed amount of official time for particular activities, or provide the grievant with a fixed percentage of his duty time as official time. Rather, Article 7 requires the grievant to specify which subsection of Section A.4 describes the activities that give rise to his officialtime request, and to provide an estimate of the time needed. In turn, the article also provides that the Agency may approve or deny that request.
Even when parties have agreed to procedures for requesting official time, those procedures must allow an agency to gather the information necessary to make a reasoned determination about whether to grant or deny an officialtime request. Without sufficient information, an agency approving official cannot determine whether a request is consistent with § 7131(d). In this case, the Arbitrator denied the Agency’s ability even to know how many hours of the grievant’s officialtime request would be used for each of the five broad categories of activities that the request included. We find that, under § 7131(d), the Agency must be permitted to gather the information that it needs to determine whether an officialtime request is reasonable. To hold otherwise would render the act of requesting official time superfluous. (My Emphasis)
The decisions on which the dissent relies to criticize our holding are irrelevant. Nor does this decision “violate” our precedent. It is for this Authority to interpret the Statute and, when needed, apply and clarify that interpretation. That this decision fills what appears to be a gap in our precedent is all the more reason why we must act. The award before us went so far as to effectively render null and unenforceable the agreement provision providing for the very act of requesting official time, hence our decision today.
This is a critical departure from the thinking of prior FLRAs, many of which saw no limit of any kind on official time or Agency control on its use. Bargainers should read this decision very carefully as I think it will provoke and should provoke some negotiability issues in the future.
Also, the finding of a statutory management right on this matter may prompt Agencies to examine current collective bargaining agreement language and change Agency proposals in upcoming negotiations.
Agency’s Reliance on Its Judgment Deciding an Apparent Conflict of Interest Not Arbitrary and Capricious
The third case also involved Customs and AFGE, 71 FLRA No. 19 (April 10, 2019) in exceptions to the arbitrator’s finding that the Agency’s exercise of judgment concerning a potential conflict violated the agreement.
The case involved an off-duty work request for an EMT and the Agency’s finding that the requirement of the outside job the EMT wanted could result in a conflict based on the nature of that job and the employee’s work with Customs.
In an interesting twist, the arbitrator relied on a Texas state law in finding the Agency should have granted the request. Perhaps someone should have informed the arbitrator who exactly won the “recent unpleasantness” involving Texas as a combatant and that a Federal Agency’s obligation to comply with a state law has very severe limits and may exist only when a specific Federal law so allows. Last time I checked, a Texas statute binds the citizens of Texas and visitors thereto except Uncle Sam.
FLRA addressed an issue that this author has covered in numerous articles concerning the prior FLRA’s interpretation of other Agencies’ statutes. Here’s what the Authority had to say.
As relevant here, an award fails to draw its essence from the parties’ agreement when the award does not represent a plausible interpretation of the agreement.
The issue before the Arbitrator was whether the Agency’s denial of the grievant’s request violated Article 10’s prohibition on denying outside-employment requests for “arbitrary or capricious” reasons. Relying on an unrelated Texas state court decision, the Arbitrator concluded that the grievant could report a patient’s immigration status without violating Texas law. Therefore, the Arbitrator determined there was no actual, or any appearance of a, conflict of interest. The Arbitrator’s reliance on that case is misplaced because it does not involve, or relate to, the Texas law at issue.
Article 10’s plain language does not require the Agency to demonstrate that the outside employment would result in an actual conflict of interest in order to deny the grievant’s request. In fact, Article 10 specifically permits the Agency to disapprove an outside employment request if it “create[s] the appearance of” a conflict of interest. Moreover, the prophylactic nature of ethical rules, such as Article 10’s conflictofinterest provision, would be pointless if the Agency must prove that an actual conflict exists every time it acts to curtail a potential conflict. By relying on her conclusion that Texas law created no actual conflict of interest, the Arbitrator disregarded the Agency’s contractual authority to avoid even the appearance of a conflict of interest. Thus, the Arbitrator’s interpretation of Article 10 does not draw its essence from the parties’ agreement.
Our dissenting colleague and the Arbitrator engage in an elongated and unnecessary interpretation of Texas state law. As we explain above, it is unnecessary to do so in order to resolve the very simple dispute over the plausible interpretation of Article 10’s “appearance” of a conflict of interest language. But, more troubling, are the great lengths the dissent and the Arbitrator go to interpret state laws with which they have no familiarity or expertise. It is just this sort of overreach for which the D.C. Circuit Court of Appeals has criticized the Authority at least three times in recent years. In U.S. Department of the Navy, Naval Undersea Warfare Center Division, Newport, Rhode Island v. FLRA, the Court criticized the Authority for injecting our own “organic statute [into] another statute . . . not within [the Authority’s] area of expertise.” More recently, the Court criticized the Authority’s overreach by interpreting a statute which concerned discretions Congress gave solely to the military: “we cannot imagine that Congress intended to empower a civilian agency like the FLRA to second-guess the military’s judgment.” The state law at issue concerns the privacy of communications made between a patient and medical personnel during the course of treatment. That is not a matter which is covered by our Statute or the parties’ CBA or falls within our colleague’s or the Arbitrator’s expertise. And, the determination of whether an employee’s outside activities create an apparent conflict of interest is a matter left to the discretion of the Agency’s ethics officer. (My Emphasis)
Based on the above, we find that the Arbitrator erred in substituting her own judgment over that of the Agency’s ethics officer. The Agency’s determination that the grievant’s outside employment would create the appearance of a conflict of interest was neither arbitrary nor capricious. Therefore, we vacate the award. In light of this determination, it is unnecessary[ to resolve the Agency’s remaining arguments.
An FLRA that understands its authority under the Federal labor management relations statute covering Federal employees. Wouldn’t have believed it could happen just 3 years ago.
As always, any opinion expressed is mine alone.