By Dan Gephart, June 4, 2019
In a decision earlier this year, the Federal Labor Relation Authority, to the delight of labor relations practitioners government-wide, reaffirmed a seminal decision from 2018, emphasizing the statutory distinction between conditions of employment and working conditions.
Many people first saw the FLRA decision in DHS CPB El Paso, 71 FLRA No. 10, on the Authority’s web site, while others got the news first from FLRA Member James Abbott himself on LinkedIn. Member Abbott wrote:
The Authority found, as it did in DHS CBP El Paso, 70 FLRA 501 (2018), that neither workload increases attributable to “operational demand” or “mere variations” in normal duties do not constitute bargainable changes.
While board offices at the Merit Systems Protection Board continue to sit vacant, and the Equal Employment Opportunity Commission is just now emerging from its own lack of a quorum, the FLRA has kept plugging along, albeit without a General Counsel. Member Abbott has been a public face of the agency, as he has taken to social media to provide context and clarity to his decisions.
Member Abbott deferred when we asked to further explain this distinction between working conditions and conditions of employment, as the Authority is currently considering several cases that involve this question. “What I can say,” Abbott offered, “is that a number of cases will be issued in the very near future that will turn on this question and will serve to further explain the differences.”
Member Abbott also did not expand on comments related to the pending DC Court of Appeals decision on the Trump Executive Orders, but said: “We are awaiting the decision just as anxiously as the rest of the public and the labor-management relations community.”
Below are a few additional comments Member Abbott shared with FELTG.
DG: What was the reasoning behind your decision to be so active sharing cases on LinkedIn?
JA: Before, at, and after my confirmation hearing, I pledged that I would do everything I could to make FLRA decisions relevant and clear. I believe that it is important that FLRA decisions can be understood by laypersons and attorneys alike. To that end, one of the initiatives that I took upon myself was to summarize and highlight the significance of key decisions of the FLRA. My postings, of course, are not official iterations or citations.
DG: What kind of feedback have you gotten?
JA: At a number of conferences, I have had the opportunity to speak to many union and agency officials. By far, most individuals have stated that they find the comments helpful and serve as a guide to seeing where our precedent is focused or refocused. I have also received many comments from both union and agency practitioners that the decisions of this FLRA cohort are quite clear and much more understandable than decisions of the past.
DG: There have obviously been major changes to prior FLRA case law over the last year. What changes do you find most significant and why?
JA: Having served as a practitioner before the FLRA for many years, I always consider that every case that comes before us is significant to the parties involved. Whereas past majorities of the FLRA have advocated for an “incremental extension” of collective-bargaining, I believe our return to and embrace of the plain language of the Statute is most significant.
DG: What do you think is the appropriate role of a union in the federal government in 2019?
JA: The role of “labor organizations” in the Federal Government is the same in 2019 as it was in 1978. Section 7114 of the FSLMRS clearly outlines the rights and responsibilities of “labor organizations” as that term is defined in 7103(a)(4).
