At issue are standards for the FLRA stepping into a case in arbitration before a final arbitration decision is made. Image: Vitalii Vodolazskyi/Shutterstock.com
By: FEDweek StaffThe FLRA has reverted to standards it had used before a 2018 decision regarding situations in which an agency can challenge the process of resolving disputes with unions through the grievance/arbitration process.
The ruling is the latest action in which the FLRA board, now with a 2-1 majority for Democrats, overturned decisions in favor of management made during the Trump administration when it had a 2-1 majority for Republicans.
At issue are standards for the FLRA stepping into a case in arbitration before a final arbitration decision is made. While that generally cannot be done, there is an exception if such an “interlocutory” appeal would resolve the issue without the need to finish arbitration.
Up to the 2018 decision, the FLRA had held that such appeals could be granted only if they addressed whether the arbitrator has legal jurisdiction over the dispute. But in that decision, made along party lines, it broadened the circumstances to include assertions that arbitration violated terms of a contract, for example regarding deadlines for filing grievances.
In its new ruling also along party lines, the FLRA instead said that such challenges should be allowed only over the arbitrator’s authority to “exercise jurisdiction over a grievance in the first place – not situations where, for example, an arbitrator is asked to find a violation, or to grant a remedy, that would conflict with governing law.”
“We will apply this exception 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 added, and “only if doing so would bring an end to the entire dispute that the parties submitted to arbitration.”
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