Dewey's FREE MONTHLY "News and Case Alert" keeps you up-to-date with the latest federal sector employment and labor laws, cases and news.

EXECUTIVE ORDER RESTRICTIONS REVIVED BY D.C. CIRCUIT

Without a dissent, a three-judge panel of the D.C. Circuit vacated a decision of the federal district court that enjoined application of significant provisions of President Trump's Executive Order 13,836, "Developing Efficient, Effective, and Cost-Reducing Approaches to Federal Sector Collective Bargaining," of May 25, 2018. The Order limited official time grants; allowed agencies to decide whether to provide government facilities to unions; instructed agencies not to bargain over permissive subjects; required agencies to negotiate grievance procedures to exclude coverage of misconduct or performance-based removals and disputes over performance appraisals and awards; and set the duration of performance improvement periods at no more than 30 days. The district court held that the Order so radically undercut statutory authorizations and processes under the 1978 Reform Act that unions had no means of effectively challenging implementation of the Order at the agency level.

The appeals court disagreed. Impasse procedures, negotiability appeals, ULP remedies, arbitration (and FLRA review), and a degree of judicial review allow challenges to actions implementing the Order. Because the statutory system provided adequate remedies, the statutory scheme impliedly precluded broad judicial attacks on the sufficiency of those remedies. In short, what congress provides, the courts will not ignore. The district court lacked jurisdiction to create a preemptive remedy, by blocking an executive order, when the administrative process provided for post-action challenges to implementation of that order. The judgment of the district court was vacated, and with that, the injunction issued by the trial court is effectively dissolved.

What next? Perhaps the unions will seek en banc review and a stay of the appellate decision and continuation of the injunction pending further review. There's the possibility of a request to the Supreme Court for review, and a similar request for a stay of the appellate decision. Stay tuned.

Donald J. Trump, et al. v. AFGE, et al., D.C. Circuit 18-5289 (July 16, 2019)

FLRA REVIEWS COUNSEL FEE DETERMINANTS

Months ago, FLRA invited amicus briefs on a case the Authority desired to use to develop possible new approaches to counsel fee determinations by arbitrators, marking an interest in departing from its slightly modified customary reliance on MSPB interpretations of the counsel fee provisions of the Back Pay Act. Your publisher submitted one amicus brief. Others were supplied by counsel for unions and agencies.

How much regard was given to the amicus brief is guesswork, but in two recent decisions the FLRA modified its approach to fees in cases involving claims for benefits and in cases involving mitigation of suspensions of less than 15 days (referred to by FLRA as minor suspensions).

AFGE Local 1633 and Debakey VA Medical Center, 71 FLRA 211 (July 10, 2019), involving a fee request attendant to an award of environmental differential pay, considered application of two of the MSPB Allen decision's standards: "knew or should have known" and "clearly without merit." FLRA decided to follow the MSPB's traditional guidance. (Allen v. U.S. Postal Serv., 2 M.S.P.R. 420 (1980).) The "knew or should have known" standard examines the evidence available to the agency when it denied the grievance: whether the agency was negligent in taking the action, lacked a reasonable and supportable explanation for its position, or ignored clear, unrebutted evidence that the action was contrary to law, regulation, or the contact. The "clearly without merit" standard, more elusive, considers whether the grievant produced evidence so compelling that the agency's intransigence needlessly prolonged the arbitration process. A garden-variety contract interpretation dispute would not ordinarily result in a determination that the agency knew or should have know it would not prevail in arbitration. And an action is not clearly without merit only because a grievance is granted. The agency does not needlessly prolong the process by awaiting a decision, although fees might be awarded for counsel time invested after dispositive evidence is introduced at arbitration. Member Abbott concurred; Member DuBester concurred and dissented).

Questing forward, AFGE Local 2076 and DHS, C&IS, 71 FLRA 221 (July 10, 2019), involved mitigation of a suspension from fourteen days to five. The Authority's concern was application of the MSPB decision in Lambert v. Air Force, 34 MSPR 501 (1987), suggesting that fees may be appropriate under the "knew or should have known" standard when a penalty is mitigated because it is unreasonable. FLRA decided that Lambert was inapplicable to minor disciplinary actions (MSPB reviews "major" discipline: terminations, reductions in pay or grade, suspensions exceeding fourteen days). In applying Allen's "knew or should have known" standard, arbitrators should consider the nature and strength of the evidence that was available to the agency and assess whether its penalty was reasonable in light of that determination. FLRA added that "circumstances such as this, where all of the charges were sustained and the Agency's choice of penalty was consistent with its table of penalties, strongly support a finding that the Agency's penalty determination was reasonable, and that Allen category (5) does not apply." Member DuBester concurred and dissented.