By William Wiley

Here at FELTG, we are always in pursuit of a better civil service. And one day last week in our semi-annual FLRA Law Week seminar, I had a flash of genius. OK, genius to me. Let’s see what you guys think.

First, the problematic situation. It takes a long time and lots of attorney resources to resolve what should be routine labor relations disagreements. Typical situation:

  1. HQ issues a new policy.
  2. Management’s labor chief notifies Union of potential change.
  3. Union proposes that the change not be implemented.
  4. Management asserts non-negotiability and refuses to bargain. The agency has a “compelling need” for the new policy.
    • If you are already lost, not knowing why management notified the union or what the devil “non-negotiability” or a “compelling need” is, you best get yourself enrolled in out next FLRA Law Week seminar scheduled for November 14-18 in DC.
  5. Union files a negotiability appeal with FLRA. Management has two bad options:
    • Wait until the negotiability process is completed prior to implementing the new policy, or
    • Implement the new policy now, risking an unfair labor practice finding and a status quo ante remedy if the change is eventually found to be negotiable.
  6. Assuming management takes the high road and participates in the negotiability appeal process, the next step is the pre-petition conference with representatives of FLRA. In that discussion, FLRA staff will attempt to mediate the disagreement as to whether there is a compelling need for the policy.
  7. Failing resolution at the pre-petition step, the matter is referred to the staffs of the three Authority members.
  8. Legal research is done, draft decisions are circulated, and arguments as to the proper outcome occur within the Authority.
  9. Eventually, a decision is issued, when at least two of the members agree (the third member may issue a dissent). If there is a dissent, the two members have to review it and may comment on it in the majority opinion.
  10. If the majority opinion is that there is no compelling need for the new policy, the agency is ordered to bargain the implementation of the policy with the Union.

We could spend some time calculating the approximate resources necessary for the Authority to reach a final conclusion in this matter. However, specificity is not necessary to appreciate a central fact: at least a dozen FLRA attorneys and a fair number of weeks (or months) are going to be required to get a compelling-need decision.

Consider, if you will, this genius-level alternative, an alternative that retains in the Authority the power to resolve compelling-need disagreement while avoiding the resource and time commitment of the above procedure:

  1. FLRA establishes weekly phone-in times. One of the three members is assigned to phone duty during each one of these phone-in opportunities.
    • For example, 1:00-3:00 TU, WE, and TH could be established, with each member having the responsibility to be available for the two-hour periods on one of the three days.
    • By internal policy, the three members delegate to the member taking calls the authority to act on behalf of all three members. The board members at MSPB have had a similar internal delegation policy for over 20 years relative to OSC initial stay requests.
    • It doesn’t seem to me that we would be asking too much of a Presidential appointee who is being paid nearly $200,000 annually to answer the damned phone every now and then.
  1. When a local management team and Union have a question as to whether a new HQ policy is based on a compelling need, they get an appointment with the Authority for a phone-in opportunity. Here’s what would be a typical telephone conversation.

Member: Hey everybody. This is Pat. Who do we have on the call today?

Management: Sir, this is Deputy General Counsel Ann Anderson, on behalf of the US Administrative Agency. We need to implement a new policy for which we believe we have a compelling need.

Union:  Sir, this is Chief Steward Ursula Underwood. That new agency policy is no more based on a compelling need than my bad breath is based on evil thoughts.

Member: OK, first, we do first names in this process. Second, you both know how it goes. Ann, you have seven minutes to pitch me your side of the situation, including statements from any witnesses you want me to hear.

MgmtGot it. Here goes … [Blah, blah, blah for seven minutes].

MemberMore interesting than usual, Ann. I appreciate the extra effort put into your organization and elocution. Ursula, what does the union have to say about this fascinating argument in your seven minutes?

UnionWell, Pat, I can tell you that on behalf of the union, we think you need a bucket and mop to clean up this pile of poo. [Blah, blah, blah for seven minutes].

MemberTypical Union drivel, Ursula. I would have thought you had moved beyond the 1950s. Ann, you have two minutes for rebuttal.

Management: [Blah, blah, blah]

Member: Ursula, your turn for two minutes.

Union: [Blah, blah, blah]

Member: Hmmm. You have both made good points. And I appreciate your time. However, as for time, it is my time to tell you my decision. After considering your extensive and entertaining arguments, it is my conclusion – on behalf of the Federal Labor Relations Authority – that, although a close call, the agency’s intended change is NOT based on a consideration for which there is a compelling need. Therefore, the union’s proposal is negotiable and USAA is hereby ordered to engage in collective bargaining on the substance of the proposed new policy. Ursula, if Ann and her team don’t comply with this order to engage in bargaining on this issue, give our Solicitor a call at 202-343-1007 and we’ll get a court order for you. Any questions?


UnionNot a one.

MemberThen, we’re done. Best of luck to you both. If you need us again in the future, you know our number. Have a nice day. FLRA out. [Mic drop]

“Oh, Bill. Have you lost your freaking labor relations marbles? Obviously, this will result in a terrible decision. We need lots of lawyers thinking lots of legal thoughts and writing lots of labor-law words to get a valid decision on negotiability. What about consideration of all those factors related to a ‘compelling need’ determination: core function of the agency, necessary rather than merely helpful, possibly abrogation, excessive interference, and the KANG analysis? We can’t really get a good decision if those factors aren’t weighed and analyzed in excruciating detail, can we?”

Of course, we can. Those highly subjective and impossible-to-define terms are just ways that an individual Authority member can justify his or her gut call on whether a matter should be negotiable. Do you think that there has ever been a member in history who actually understood those arcane concepts, and then used them to assess a particular set of facts to draw a rationale conclusion? Of course not. NOBODY understands what these terms mean. They are just weasel words that can be shaded and twisted to support whatever conclusion a member wants to make. And I mean no disrespect by making this statement. Judges do this, Board members do this, and goodness knows that Supreme Court Justices do this. It is the way the world works, whether we admit it or not. We may say, “Pay no attention to that man behind the curtain,” but we still know he is there.

So let’s cut the crapola. Our adjudicators know the answers before we ever get them our arguments. The law says that the FLRA members are empowered to make labor law decisions. Why waste all that time and resources pretending that they are making better decisions with all the legal theater of our attenuated processes? If a union and management have a disagreement about something, get a member on the phone, let him or her hear the parties out, then issue an immediate decision that allows the government to move on. A good decision today is more valuable than a perfect decision two years from now. And since a year or two of adjudication is no more likely to produce a more perfect decision than one issued next Tuesday, why in the world should we wait?

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