FROM THE FLRA
ABROGATION OUT; EXCESSIVE INTERFERENCE BACK

As membership of the Authority changes from administration to administration, certain decisional trends of the Authority also change with the swings in the political barometer. One area of shifting law is a standard of review of arbitration awards that arguably interfere with management rights under 5 USC 7106. Through 2018, after previous switches in doctrine, the Authority's approach was that the "excessive interference" test applied to negotiability determinations should not be applied to arbitrators' interpretation or application of contract provisions that either were not challenged earlier, during negotiations, through the negotiability process or, if challenged, were determined by the Authority to be negotiable. Instead, an "abrogation" standard was applied to review of arbitrators' awards, meaning that the contract provision applied through arbitration would be upheld if it did not abrogate a management right (as opposed to excessively interfere with that right). The decision in DOJ, Bureau of Prisons and AFGE Local 817, 70 FLRA 398, 398-406 (2018) (Member DuBester dissenting), involving an arbitration award applying a contract article governing shift changes, reverted the review standard to "excessive interference." The practical effect of the decision is to make it more likely that agencies will challenge arbitrators' awards on management rights exceptions. Since every contract article that does more than incorporate a statute or regulation will impact the exercise of management rights, the Authority will address negotiability issues through arbitration exceptions, decisions on which are not judicially reviewable (except for ULP findings). Negotiability determinations made through the negotiability process are judicially reviewable. But most negotiability appeals are settled without an FLRA decision or judicial review. Relatively few exceptions on arbitration awards are settled, since those awards make retrospective determinations on employee rights, sometimes involving backpay, while negotiability determinations are prospective and never involve backpay (without a concurrent ULP involving an unbargained material change in working conditions). The result is that the Authority will likely create a small body of what amounts to negotiability law that is not subject to judicial review.

TIMELY FILING OF EXCEPTIONS IS CRITICAL

The time for filing exceptions to an arbitration award is statutory. Under 5 USC 7122(b), the exceptions are to be filed "during the 30-day period beginning on the date the award is served on the party." FLRA strictly construes the statute, since it views the statute as limiting its jurisdiction. Dept. of Navy, Portsmouth Naval Shipyard and IFPTE Local 4, 70 FLRA 429 (2018) (Member DuBester concurring) rejected exceptions that were 52 minutes late. FLRA was not swayed by the explanation that an agency-wide network outage and efiling problems prevented timely filing, begun one minute after the deadline and completed 52 minutes after the hour. For those of you who have not made much use of the e-filing systems of MSPB, FLRA, and particularly, the Federal Circuit, users beware: there's many a slip 'twixt the cup and the lip. Don't wait until the last day to file a pleading with one of these organizations.

AT THE MSPB:
NOMINATIONS

And we have nominations, ladies and gentlemen. Quorumless for fourteen months, and counting, MSPB may soon (?) be back in business. This month President Trump submitted two nominations for Board membership. Dennis Kirk, an attorney in private practice and formerly in federal service, was nominated to be Chair. Andrew Maunz, an attorney with the SSA OGC, was nominated to be Vice Chair. There's no pending nomination for the third Board slot, which should be a Democratic nominee. Whether and when the confirmation process will proceed without that third nominee is beyond Dewey's ken. Meanwhile, PFRs accumulate at the Board, numbering, depending on how the count is measured, more than 1,000. In remarks to the Federal Circuit Judicial Conference earlier this month, Vice Chairman Robbins estimated it will take the Board considerably more than a year to work through the backlog.