Labor Authority Overturns Another Precedent Days After Court Rebuke

The Federal Labor Relations Authority last week overturned another longstanding precedent in federal sector labor law, ruling that arbitrators can no longer order prospective remedies in some grievance cases.

Critics argued that the ruling both lacks a proper rationale that agencies and unions may use to guide their actions going forward, and that it is based on a misreading of the precedent and the facts of the case, two issues that led to a federal appeals court overturning another FLRA decision just two days prior.

In Social Security Administration and American Federation of Government Employees Local 3571, Social Security officials filed exceptions in a grievance case in which an arbitrator found that the agency's performance ratings of an employee in 2015 and 2016 lacked evidence. The arbitrator ordered the agency to correct the previous performance ratings and "satisfy six criteria" to better set expectations and document poor performance involving the employee moving forward.

Although the FLRA denied most of the agency's objections to the arbitrator's decision, it overturned its own precedent that arbitrators may order parties to change their behavior in future actions.

"In cases where the issues for arbitration are explicitly limited to a particular time period, [U.S. Department of the Army, U.S. Corps of Engineers, Northwestern Division] empowers arbitrators to award relief that is designed to exceed the scope of the issues before them," FLRA Chairwoman Colleen Duffy Kiko wrote. "Such outcomes directly conflict with the authority's longstanding insistence that the issues submitted for arbitration—whether stipulated by the parties or framed by the arbitrator—constrain an arbitrator's remedial authority."

In essence until now, arbitrators were limited to issuing orders impacting only the parties involved in a grievance but were able to issue relief in the form of future compliance. Now, FLRA will only uphold remedies that are limited to the "time frame covered" in an arbitration.

Dissenting in the decision was the FLRA's lone Democratic appointee, Ernest DuBester. He accused his colleagues of misrepresenting how the arbitrator initially framed the issues of the underlying case, and said the precedent is not in need of review.

"Because these directives [to address deficiencies in future assessments of the party filing the grievance] are directly responsive to the issues that were before the arbitrator, I would find that they fall well within his broad discretion to fashion an appropriate remedy for the agency's violations of the parties' agreement," DuBester wrote. "And based on this finding, I would further conclude that there is no need to 'reexamine'—much less 'overrule'—our decision in U.S. Department of the Army, U.S. Corps of Engineers, Northwestern Division to deny the agency's exception."

DuBester described last week's decision as the latest in a long line of rulings intended to overturn precedent without doing the necessary legwork to explain why the change is needed.

"As with its prior decisions overturning long-standing authority case law, the majority has failed to set forth a plausible rationale for discarding this well-established precedent," he wrote. "[The] majority fails to demonstrate that our decision in Corps conflicts with authority precedent, and its decision to overturn this precedent should be rejected on this basis alone."

Robert Tobias, director of business development for the Key Executive Leadership Program at American University and a former president of the National Treasury Employees Union, said he was "astounded" to read the ruling, and echoed language from an appeals court last week, which found in a separate case that an FLRA change in precedent "provides more questions than answers."

"In this case, there was no rationale for their decision to overturn previous precedent," Tobias said. "Parties need to understand the rationale so that they can guide their behavior into the future, but with this decision there was no guidance, no rationale, and candidly, I don't think the FLRA did its duty to the parties in this case or to the labor-management relations community in the federal sector in general."