THE FLRA IS BACK IN BUSINESS...AGAIN
by Natania Davis
With the appointments of Carol Waller Pope (Chairman), Ernest W. Dubester (Member), and Patrick Pizzella (Member) in November 2013, the FLRA is producing decisions again.
Of particular note are the concurring opinions in DHS, Customs & Border Protection and AFGE, Nat'l Border Patrol Council, Local 2913, 67 FLRA No. 26,(Dec. 18, 2013), wherein Chairman Pope and Members Dubester and Pizzella set out what they believe is their mission as members. Unfortunately, but not surprisingly, they don't agree.
Member Pizzella noted that "a major focus" of his term as an Authority Member will be to "keep the interests of the American taxpayer primarily in mind." He noted that tax payers fund the majority of labor relations efforts starting at the collective bargaining stage through and including grievances, arbitration and litigation over ULPs. Member Pizzella's solution:
I believe that, in order for the federal labor-management relations community to contribute to the effective conduct of government:
- Agencies need to engage in good-faith bargaining and honor those lawful commitments to which they have agreed;
- Unions need to avoid frivolous and repetitive grievances that fail to distinguish legitimate, good-faith disputes from everyday workplace annoyances;
- Arbitrators need to avoid rendering "circular" and "incoherent"arbitral awards; and
- The Authority needs to issue decisions that withstand judicial scrutiny by refraining from endorsing such awards by arbitrators.
In the brief time I have served as a Member of the Authority, I am impressed by hardworking Authority employees who exercise their statutory responsibilities to ensure that all matters that come before the Authority are addressed impartially and in accordance with the law. However, during this same time, it is apparent to me that the Authority is forced to expend time and resources addressing matters that could, and should, have been resolved by the parties before ever reaching us.
Accordingly, I look forward to an ongoing and lively debate with my experienced and distinguished colleagues - Chairman Pope and Member DuBester - as we endeavor to address and resolve important issues that are brought before us.
The joint concurrence of Chairman Pope and Member DuBester is also noteworthy:
We are pleased to issue this unanimous decision as our first with the current complement of Members. We write separately to emphasize that in this and future cases, we understand that our responsibility is: to apply the law to the issues and facts properly before us to the best of our abilities. And in discharging this responsibility, we honor the section of the Federal Service Labor-Management Relations Statute (the Statute) requiring that its provisions be interpreted in a manner consistent with an effective and efficient government. Where other statutory and regulatory provisions apply, we are guided, as adjudicators, by the fundamental principle that the terms and intent of those statutory and regulatory provisions control, not purely policy-based considerations. As we believe it is wrong to incorporate other matters into decisions, we will not comment further on the outside-the-case considerations raised in our colleague's concurring opinion.
We also write separately to note the guiding force of the principle of governmental effectiveness and efficiency in other areas of Authority activity. For example, since 2009, the Authority has pursued various initiatives to help the parties we serve, and the Authority itself, conserve scarce resources. Our arbitration case initiative included regulatory revisions, the development of a Guide to Arbitration under the Statute, and extensive training of parties and arbitrators to clarify what are - and are not - proper grounds for Authority review of arbitration awards under the Statute. The Authority recently undertook a similar initiative for negotiability cases. As part of this initiative, the Authority continues to offer alternative-dispute-resolution (ADR) services in all negotiability cases. The result: complete resolution of over ninety-five percent of all negotiability disputes where parties agree to use ADR.
Finally, as we begin this new chapter in the Authority's history, we remain committed to fulfilling our mission in a manner that, insofar as we are able, recognizes and respects all stakeholders' concerns.
Practice Tip: There you have it folks. If only, as Member Pizzella laments, people could get it right all of the time. Training your HR and union staff and counsel is a step in the right direction. To that end, Dewey is pleased to introduce its new Civil Service Advocacy Series-Peter Broida's video training courses on topics like arbitration, mediation, and settlement (more topics to come). Each training course includes course outlines to follow along with the video lecture. Broida on Federal Sector Arbitration and Broida on Federal Sector Mediation are available now for purchase. Order one copy for you or enough copies to train your entire staff. Broida on Federal Sector Settlement is coming soon. Place your order now.