Case Decided in Under 20 Years?

Government has a reputation for moving slowly. In the federal labor relations program, arbitration can be invoked instead of a longer, more complex appeal process. One advantage of arbitration is that it can be quicker to receive a decision.

That does not always work out. A recent court decision is an example of one case that has now been in the labor relations system for about 17 years.

Filing a Grievance in 2002

The case is Federal Education Association vs. the Federal Labor Relations Authority (USCADC, No. 18-1198, June 21, 2019). In this case, the union (FEA) filed a class grievance on behalf of teachers’ working for the Department of Defense Education System in 2002. The grievance alleged the Agency had “engaged in a persistent pattern of failing to pay or to apprise bargaining unit employees of” the amounts the Agency owed them.

Moving Forward in 2003

The arbitrator may not have realized how complex the federal bureaucracy can be. He probably has a better understanding by now.

The arbitrator issued an award in 2003 indicating what the payroll system must include and that the agency had to comply within a reasonable interval, and that “[f]ailure to comply with this directive within ninety days of this Award [might] result in the imposition of substantial liquidated [damages].”

Welcome to the reality of how the federal government works in practice.

According to the Agency, only the Department of Defense’s Chief Financial Officer had the “authority to make the changes” the arbitrator ordered; all the Agency itself could do was ask him to make those changes. In 2004, the Agency filed exceptions with the FLRA which denied the exceptions.

Moving on to 2010

As a result, the parties participated in “implementation hearings” before the arbitrator over the several years and the agency provided progress reports. In March 2010, the arbitrator sent a letter to the parties ordering the Agency to make eight specific changes to the way it presented payroll information to its employees. 

The agency said it could not make the changes as they had to be made by the Defense Finance and Accounting Service (DFAS). DFAS told the agency it and the Department of Defense were not bound by the arbitrator’s award. It did explain how the current system worked but that some of the changes would not be made.

Still Around in 2015

Ultimately, the Agency did not succeed in making all the changes the arbitrator required. In May 2015, the Agency sent a letter to the arbitrator asking him to hold that the Agency had “complied with the spirit and intent of [his] order” and to relinquish jurisdiction of the case.

In response, the arbitrator issued a final award on August 10, 2015. He wrote the Agency had “been in non-compliance with the Arbitrator’s Award and subsequent orders since 90 days after the [Authority] decision” in 2004 affirming his original award.

The union filed an unfair labor practice (ULP) and an administrative judge found the agency had committed a ULP by not complying with the arbitrator’s award.

The agency filed exceptions with the FLRA. The FLRA found the union’s filing of the ULP was untimely and dismissed the case.

Taking the Case to Court

The union went to court arguing that the ULP was timely and that the court should retain jurisdiction to make sure the agency complied with the arbitrator’s award.

The Court of Appeals concluded the ULP was timely filed and that the union’s case should be heard. It declined, however, to retain jurisdiction of the case.

The union argued the Authority is biased in favor of employing agencies and against unions. “Remanding to the Authority to pursue enforcement proceedings would . . . mean nothing,” the Union says, because the Authority would just “fabricate another reason to overrule” the administrative law judge.

That argument did not sway the court which refused to maintain jurisdiction of the case. Instead, it concluded “a simple win-loss chart does not demonstrate that the Authority has prejudged the cases.”

Case is Not Over

In short, this case that started in 2002 is still not over. It is possible that when the FLRA issues a decision, it may still not be over. If the FLRA orders the agency to comply, that will take longer. If it finds the agency took reasonable steps to comply, the case may finally be over. So, it may have taken about 20 years to reach a decision in this case.

Most cases do not take this long. But starting down the road in these cases often takes longer than the initial filing party expects it will take. No doubt, patience is required.

Federal Education Association v. FLRA by FedSmith Inc. on Scribd