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NEWS AND CASE ALERT
December 30th, 2022 | Issue #14-11
TABLE OF CONTENTS
FLRA CURTAILS REVIEW OF INTERLOCUTORY EXCEPTIONS TO ARBITRATION AWARDS

FLRA FOLLOWS D.C. CIRCUIT TO EXTEND MORE DEFERENCE TO ARBITRATORS’ CONTRACT INTERPRETATION

CONTINUING REVISIONS BY FLRA TO ARBITRAL JURISDICTION OVER GRIEVANCES INVOLVING CLAIMED TEMPORARY PROMOTIONS

FILING DEADLINES RELAXED FOR SOME VA CASES UNDER 38 USC 714

DISCLOSURES PROTECTED WHEN NORMAL JOB DUTIES INCLUDE INVESTIGATION AND REPORTING OF MALFEASANCE
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FLRA CURTAILS REVIEW OF INTERLOCUTORY EXCEPTIONS TO ARBITRATION AWARDS
Through 2022, FLRA considered interlocutory exceptions from rulings on issues that had an outcome-determinative effect under a contract, e.g., the timeliness of a grievance, the proper level that the grievance should be presented, whether arbitration was timely invoked or a hearing was held by a contractual deadline.
 
Determining that its approach was wrong, inconsistent with treatment of challenges to arbitration in the private sector, FLRA changed its tack and decided that it would only consider interlocutory exceptions on rulings that resolved jurisdictional challenges under FLMRS criteria. The review of jurisdictional issues—whether an arbitrator is legally barred from hearing a grievance in the first place—is de novo, without deference to the arbitrator’s legal interpretation. And the exception will be considered only where an excepting party has demonstrated that the arbitrator lacks jurisdiction as a matter of law; “It will not be sufficient to merely allege, or even present a “plausible” claim, regarding legal bars to jurisdiction.” The decision in Army Materiel Command, Redstone Arsenal and NFFE Local 1332, 73 FLRA 356 (2022) (Dec. 8, 2022) (Member Kiko dissenting), had the purpose and will have the effect of reducing the number of interlocutory exceptions decided by FLRA. Jurisdictional defects under the Statute include those established at 5 USC 7121(c), e.g., position classification; examinations, certifications, or appointments; matters directly involving retirement or insurance benefits.
 
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FLRA FOLLOWS D.C. CIRCUIT TO EXTEND MORE DEFERENCE TO ARBITRATORS’ CONTRACT INTERPRETATION
FLRA has, for years, examined arbitrators’ contract interpretations, particularly on procedural matters (e.g. the timing a grievance or arbitration demand) with the view that it can figure out the meaning of the contract as well (or better) than the arbitrator chosen by and paid for by the parties. FLRA’s view was contrary to the deferential approach in private sector, illustrated by three Supreme Court decisions.
 
The Supreme Court established the primacy of arbitrators’ arbitrability interpretations in Steelworkers v. Warrior & Gulf. Co., 363 U.S. 574, 582-83 (1960):
An order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
If the grievance is arbitrable, the arbitrator’s interpretation of the contract controls, Steelworkers v. Enterprise Car, 363 U.S. 593, 599 (1960):
It is the arbitrator's construction which was bargained for; and so far as the arbitrator's decision concerns construction of the contract, the courts have no business overruling him because their interpretation of the contract is different from his.
And the courts must avoid weighing the merits of grievances, Steelworkers v. American Mfg. Co., 363 U.S. 564, 567-68:
The collective agreement requires arbitration of claims that courts might be unwilling to entertain. In the context of the plant or industry the grievance may assume proportions of which judges are ignorant. Yet the agreement is to submit all grievances to arbitration, not merely those that a court may deem to be meritorious. . . .
 
. . .
 
The function of the court is very limited when the parties have agreed to submit all questions of contract interpretation to the arbitrator. It is confined to ascertaining whether the party seeking arbitration is making a claim which on its face is governed by the contract. Whether the moving party is right or wrong is a question of contract interpretation for the arbitrator. In these circumstances, the moving party should not be deprived of the arbitrator's judgment, when it was his judgment and all that it connotes that was bargained for.
 
The courts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious. The processing of even frivolous claims may have therapeutic values of which those who are not a part of the plant environment may be quite unaware.
Critical of the FLRA, the D.C. Circuit, in an ULP case involving contract interpretation, urged a return in the federal sector to a deferential standard of review in the manner of the Steelworkers’ trilogy. NWSEO v. FLRA, 966 F.3d 875, 876–82 (D.C. Cir. 2020).
 
And, in DODDEA and FEA, 73 FLRA 398, 401-02 (Dec. 21, 2022) (Member Kiko dissenting), reconsidering an earlier decision setting aside an arbitrator’s timeliness determination, FLRA accepted the guidance from NWSEO and explained that it would henceforth exercise more deferential review—at least of arbitrators’ procedural grievability determinations:
However, this conclusion ignores that the Arbitrator applied the plain language of this provision in finding the grievance was timely filed. Further, contrary to the principles set forth in NWSEO, DODEA fails to afford proper deference to the Arbitrator’s finding that the “‘incident . . . giving rise to the grievance’ occurred . . . when the Agency announced it would be implementing DPMAP.” Accordingly, upon reconsideration of DODEA, we deny the Agency’s essence exception.
One can expect future FLRA decisions will further explain the Authority’s evolving doctrine of deference.
 
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CONTINUING REVISIONS BY FLRA TO ARBITRAL JURISDICTION OVER GRIEVANCES INVOLVING CLAIMED TEMPORARY PROMOTIONS
The definition of what does and does not constitute a nongrievable failure to reclassify duties and a grievable failure to provide a contractually-mandated temporary promotion has ebbed and flowed over the years. The most recent ebb occurred in 2022 with Marine Corps Air Ground Combat Center, Twentynine Palms, and AFGE Local 2018, 73 FLRA 379 (2022) (Dec. 9, 2022) (Member Kiko dissenting in part), revealing an interest in simplifying the distinction between a matter involving position classification and a legitimate temporary promotion applying terms negotiated by the parties into their contract. The nub of FLRA’s analysis is: when the substance of a grievance concerns the grade level of the duties permanently assigned to and performed by an employee, the grievance concerns the classification of a position within the meaning of § 7121(c)(5); when the substance of the grievance concerns whether the employee is entitled to a temporary promotion under a collective-bargaining agreement because the employee has performed the established duties of a higher-graded position, the grievance does not concern the classification of a position within the meaning of § 7121(c)(5).
 
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FILING DEADLINES RELAXED FOR SOME VA CASES UNDER 38 USC 714
Several MSPB precedential decisions relax a ten-day statutory time for filing an appeal from an action under 38 USC 714.
 
Equitable estoppel was applied to excuse an appeal filed after the ten-day limit under 38 USC 714 when the decision notice to the appellant stated the time to appeal was 30 days and the appellant met the latter deadline, Hemann v. VA, ___MSPR___, 2022 MSPB 46 (2022). https://www.mspb.gov/decisions/precedential/HEMANN_JASON_CH_0714_21_0067_I_1_OPINION_AND_ORDER_1987497.pdf
 
For a mixed case, the time for a direct Board appeal under 38 USC 714 is 30 (calendar) days, Davis v. VA, ___MSPR___, 2022 MSPB 45 (2022), the Board reasoning that mixed-case processing is a product of Title 5, and the more generous filing period should apply so as to reconcile the statutory objective of speedy adjudication of VA cases and civil rights protections provided through Title 5. https://www.mspb.gov/decisions/precedential/DAVIS_WILLIE_DC_0714_20_0417_I_1_OPINION_AND_ORDER_1985990.pdf
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DISCLOSURES PROTECTED WHEN NORMAL JOB DUTIES INCLUDE INVESTIGATION AND REPORTING OF MALFEASANCE
A VA transportation chief, responsible for oversight and security of the vehicle fleet and fleet cards, reported lack of secure storage of vehicle keys and fleet cards and fraudulent card use. His disclosures, though made in the normal course of his work, were protected. The Board noted coverage under the National Defense Authorization Act for FY 2018 of otherwise protected disclosures even if they are made by a person whose principal job function is to regularly investigate and disclose wrongdoing. Salazar v. VA, ___MSPR___, 2022 MSPB 42 (2022).
 
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