By Ann Boehm, October 14, 2020

You may be aware that the FLRA recently issued three decisions that are definitely on the pro-agency side of the spectrum:  U.S. Department of Education and U.S. Department of Agriculture, 71 FLRA 968 (Sept. 30, 2020), which changes the standard for an agency’s obligation to bargain changes to conditions of employment; U.S. Office of Personnel Management, 71 FLRA 977 (Sept. 30, 2020), which makes zipper clauses a mandatory subject of bargaining; and U.S. Department of Agriculture, Office of the General Counsel, 71 FLRA 986 (Sept. 30, 2020), which allows for Agency head review of expiring, existing collective bargaining agreements.

As you can imagine, these decisions have drawn the ire of the major Federal unions. They also received some media attention. The headline for an October 2 Government Executive article is pretty strong:  “Labor Authority Abandons Decades of Precedent, Eviscerates Union Bargaining Rights.”

Also, the lone Democrat on the FLRA, Member Ernest DuBester, dissented in all three decisions.

So, what’s going on here?

Is this the end of collective bargaining in the Federal government as we know it?

Not necessarily. But with these three decisions, this FLRA is trying to make things easier for agencies in the collective bargaining context.

Here are some of my general observations on these three cases.  

Observation Number 1

Each of these cases is a “Decision on Request for General Statement of Policy or Guidance.” Section 2427.2 of the FLRA’s regulations allows for issuance of such decisions, and section 2427.5 sets forth the standards the FLRA is to follow in determining whether to issue a general statement of policy or guidance. 5 C.F.R. §§ 2427.2, 2427.5.

These types of decisions have been rare in the history of the FLRA, but more common with the current FLRA. The issuance of three such decisions on one day is notable.

Why is the FLRA proceeding in this way? I suspect it is because there is no General Counsel for the FLRA. A nomination has been pending, but the Senate has not confirmed. That means no unfair labor practice (ULP) complaints are being prosecuted before Administrative Law Judges (ALJ), since only the FLRA General Counsel can prosecute ULP complaints. ALJ decisions can be appealed to the FLRA for review. Without ULP complaints and ALJ decisions to review, there are areas of Federal sector labor-management law that this FLRA has not been able to consider – or perhaps more significantly, reconsider.

Agencies are aware of this FLRA’s pro-agency tilt, so they are cleverly utilizing 5 C.F.R. § 2427.2 to seek general statements of policy or guidance. The FLRA is happy to oblige.

In one of his dissents, Member DuBester notes that “[i]n several recent decisions, my colleagues have reversed long-standing and well-reasoned [FLRA] precedent based solely upon their view that it was inconsistent with the plain language of the Federal Service Labor-Management Relations Statute.”  U.S. Dep’t of Agriculture, OGC, 71 FLRA at 990. He also states, “[i]f one thing is clear from the rash of policy statements that the majority has recently issued, it is that this is no way to establish precedent on significant matters affecting federal-sector labor relations.” Id. at 991. No doubt, the unions will challenge these decisions in Federal court. It will take a while to get through that process, but stay tuned over the next year to see whether the courts think the FLRA has overstepped its bounds.

Observation Number 2

Good golly, these decisions have a lot of footnotes. If you have taken our legal writing courses (or really any writing course), the usual guidance is to avoid footnotes. They are distracting. If it’s important enough to mention, put it in the text. OK, I’m off my soapbox now.

Observation Number 3

I don’t think these decisions are horrible. Granted, I spent a good part of my career on the agency side of matters. For purposes of this month’s article, let’s focus on the FLRA’s decision in U.S. Department of Education. (I’ll cover the other two decisions in subsequent articles. Or, if you just can’t wait,  attend the webinar Precedents Broken: The New Future of Collective Bargaining on November 2 for more information.)

Based upon my reading of the decision, I think it would be fair to say the FLRA pushed a reset button on management bargaining obligations with unions. I would not say that the decision deprives unions of their bargaining rights.

The decision focuses on the bargaining obligations under 5 U.S.C. § 7106(b) — “when an agency makes a change to a condition of employment, it may be required to bargain over either procedures or appropriate arrangements (sometimes referred to as ‘impact and implementation bargaining’).”  U.S. Dep’t of Education, 71 FLRA at 968.

Has the FLRA diluted the management bargaining obligation? Yes. Eviscerated the unions’ collective bargaining rights (as announced by Government Executive)? Not so sure.

In this recent decision, the FLRA returned to a bargaining obligation standard originally set under interpretations of Executive Order 11491, Labor-Management Relations in the Federal Service (Oct. 29, 1969), and applied by the FLRA until 1985. That standard required bargaining “only when a change had a ‘substantial impact’ on conditions of employment.” U.S. Dep’t of Education, 71 FLRA at 968.

This standard is also applied by the National Labor Relations Board (NLRB) in determining whether private sector employers are obligated to bargain over work changes. U.S. Dep’t of Education, 71 FLRA at 970. NLRB case law is regularly used by the FLRA and even the courts for guidance on labor issues. Id. n.30.

Since 1985, the FLRA has applied a different standard that required bargaining “whenever a change to a condition of employment was ‘more than de minimis.’” Id. According to this decision, “the [FLRA] has effectively extended the bargaining obligation under the de minimis test to conclude that a matter triggers an agency’s duty to bargain, no matter how small or trivial.” Id. at 969. I think that’s a fair point.

One of my favorite cases that illustrates a pretty heavy, and in my opinion, ridiculous bargaining obligation on the part of an agency involved vending machines. The agency changed the vending machine cost of a soda from $.50 to $.55. Marine Corps Logistics Base and AFGE, 46 FLRA 782 (1992). The FLRA found that the agency’s failure to bargain over this change in working conditions was an unfair labor practice. Id. OK smarty pants lawyers out there – the agency in that case did not argue that this was a de minimis change not subject to bargaining. But the FLRA did find that there was an obligation to bargain over a five-cent change in vending machine cost. If that’s not de minimis, I don’t know what is.

Interestingly, in the D.C. Circuit case cited in Member DuBester’s dissent, where the court adopted the FLRA’s de minimis standard, the union challenged the standard as too onerous. Association of Administrative Law Judges v. FLRA, 397 F.3d 957, 963 (Jan. 28, 2005).

The union argued that the de minimis standard would damage union bargaining efforts and cause confusion and extensive litigation. Id. Wow. Think that one through. Anyway, the court agreed that the FLRA properly interpreted its own statute by establishing the de minimis standard. And now the FLRA has decided to change that interpretation. Technically, that’s the FLRA’s job — to interpret its statute.

I’m sure there are agency labor relations specialists and counsel who have negotiated minimal changes to working conditions with unions. Congress explicitly stated in 5 U.S.C. § 7101(a) that collective bargaining “safeguards the public interest” and “contributes to the effective conduct of public business,” but did it really intend for just about anything to be negotiated? The FLRA’s change to the higher “substantial impact” standard may be a healthy reset. Of course, the courts will have to agree. But for now, it’s a good time to be an agency! [email protected]

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