Vol. III • No. 5 • October, 2000

DOL thumbs nose at arbitrator’s award but loses appeal
An arbitrator ruled that the U.S. Department of Labor’s refusal to bargain with the union over its redesign of the Employment and Training Administration (ETA) was a violation of the AFGE 12 contract. The Arbitrator ordered management to bargain its redesign of ETA within 15 days. Management didn’t comply with the Arbitrator’s order. Instead, it made an appeal to the Federal Labor Relations Authority (FLRA) to overturn the Arbitrator’s order.

The Arbitrator found management’s argument that a union Shop Steward/Vice President could prevent the union President from requesting bargaining on the redesign of ETA was unjustified. AFGE 12 has said to top DOL management for more than two years that the management position in this case is nothing more than a “base” or “low-down” union-busting tactic. Union President Russ Binion says, “No sane person would argue that a union Shop Steward has more authority than the union President.” But, that was the DOL-management position for the last 21 months. The arbitrator wrote, “The express language of the contract had been supported by a clear pattern and practice. The Department’s unilateral decision to change its interpretation of the contract and recharacterize its prior application of the contract is wholly unjustified.”

By appealing the Arbitrator’s order, DOL management displays disrespect for collective bargaining, DOL employees, and the Union. Before the decision was issued, Assistant Labor Secy Bramucci proclaimed that he would do whatever the Arbitrator said should be done in this case. Instead of complying with the order to bargain within 15 days, management expanded its refusal to bargain with the Union on space and organizational changes to other DOL agencies.

The AFGE 12 leadership believes that management’s appeal of the Arbitrator’s order was calculated for the FLRA ruling to come after the change in administrations in January 2001 and the politicals, who were responsible for the bad management decisions in this case, would be gone. If so, they miscalculated. The FLRA ruling came September 28. Management lost.

The FLRA ruling states, “Under section 7122(a) of the Statute, an award is deficient if it is contrary to any law, rule, or regulation; or it is deficient on other grounds similar to those applied by Federal courts in private sector labor-management relations. Upon careful consideration of the entire record in this case, and Authority precedent, the Authority concludes that the award is not deficient on the grounds raised in the exceptions and set forth in section 7122(a). See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573 (1990) (award not deficient as failing to draw its essence from the parties’ collective bargaining agreement where excepting party fails to establish that an award cannot in any rational way be derived from the agreement; is so unfounded in reason and fact and so unconnected to the wording and purpose of the agreement as to manifest an infidelity to the obligation of the arbitrator; does not represent a plausible interpretation of the agreement; or evidences a manifest disregard of the agreement). Accordingly, the Agency’s exception is denied.”

Union filed suit against DOL management
On Dec. 21, 1999, Solicitor Solano chose to procrastinate with his reply to AFGE 12’s appeal of the denial of an August 5, 1999 FOIA request regarding a possible violation of the standards of conduct under the Federal Service Labor-Management Relations Statute (see August 1999 12 Alert).
Solicitor Solano sent the Union an undated response in February 2000 which continued the bureaucratic delay and kept a cloud over DOL and, unfairly, over a union official. Solano had not responded to the appeal on August 11, 2000 when AFGE 12 filed suit in the United States Court for the District of Columbia. The suit sought “to obtain access to records concerning a secret ‘cash award’ that the Department of Labor provided to a union official after he was involved in consultations with the Department that led to a re-organization plan for the agency that was the subject of a union grievance and subsequent arbitration.”

The Department of Justice settled the case and the documents requested on August 5, 1999 were provided to the Union in September 2000.