By Ann Boehm, July 15, 2020

Nice article title, Ann. How can Federal labor law not be political? Isn’t everything political these days?

I will acknowledge that the three-member Federal Labor Relations Authority, like the Merit Systems Protection Board, is usually comprised of two members of the President’s political party, and one member of the opposing party. (The Federal Service Labor-Management Relations Statute (Statute) actually says it is composed of “three members, not more than 2 of whom may be adherents of the same political party.” 5 U.S.C. 7104(a).) I will also acknowledge that over its 42-year history, FLRAs during Republican administrations have tended to be more pro-agency, and FLRAs during Democratic administrations have tended to be more pro-union.

Currently, I think we can say pretty conclusively that this FLRA is listing to the pro-agency side. One union recently filed a lawsuit and alleged unprecedented FLRA bias in favor of agencies. Federal Education Association v. FLRA, Civil Case No. 19-284 (RJL) (D.C.D.C. March 30, 2020).

Personally, I’m not sure that this FLRA’s decisions in favor of agencies are all bad. Some of the decisions correct past FLRA pro-union bias.

What concerns me as a long-time watcher of FLRA law is how the political shifts continue to happen. I haven’t done a statistical study, but it’s fair to say that the Obama Administration FLRA was a bit (maybe more than a bit) pro-union. This FLRA then comes in and reacts by being pro-agency. Next time there’s a Democratic administration, we will likely see a swing back toward the unions. And so on, and so on.

The thing is, it shouldn’t be political. Let’s start with the premise expressed by Congress in the very first lines of the Statute. To paraphrase: Congress stated that the right to organize, bargain collectively, and participate in unions is in the public interest. 5 U.S.C. 7101(a). Federal sector labor relations activities are supposed to benefit the taxpaying public. I’m not sure that’s always the case — and that’s the fault of both unions and agencies.

Congress also drafted a very comprehensive statute that directs how labor-management relations are supposed to work. The FLRA has now had 42 years to interpret the language of the Statute. And the U.S. Courts of Appeals for every circuit but the Federal Circuit (that Circuit handles MSPB cases and not FLRA cases), and even the U.S. Supreme Court, have contributed to the case law interpreting the Statute.

But the political motivations continue to rear their ugly heads. We all have biases. Some people are more pro-union leaning, and some are more pro-agency. The key is managing the biases and trying just to comply with what Congress directed.

I worked at the FLRA during the Clinton Administration. I feel very fortunate to have worked there under Chair Phyllis Segal. She had this crazy concept: she did not want FLRA decisions to be overturned by the courts. She wanted the FLRA to issue decisions—get this—based upon a careful analysis of the facts, the issues, the Statute, and legal precedent. Lo and behold, when I defended those decisions in the courts (including the Supreme Court), we prevailed most of the time. The courts appreciated the careful analysis of the law by the body entrusted to interpret its own Statute – the FLRA.

Which brings me to a recent court decision. The FLRA issued a decision altering its own precedent regarding the meaning of “conditions of employment” and “working conditions.” DHS, CBP and AFGE, 70 FLRA 501 (2018). The FLRA overturned an arbitrator’s award and issued a decision in the agency’s favor. The union appealed to the U.S. Court of Appeals for the District of Columbia Circuit.  On June 9, 2020, the D.C. Circuit vacated the FLRA’s decision and remanded the case to the FLRA for further review. AFGE v. FLRA, Case No. 19-1069 (D.C. Cir. June 9, 2020).

Here’s the real problem with what the FLRA did in its decision and why the court vacated the decision. The FLRA “failed to explain its departure from precedent.” Id. It looks like the FLRA issued a decision for the agency based more on pro-agency bias than careful legal reasoning. And that’s too bad.

It’s possible the FLRA may have been able to overturn that precedent. But it needed to do so based on careful legal analysis and not a desire to make a pro-agency result.

It’s not just the current FLRA that acted in this way. It’s been done before and will be done again, mostly because of politics and bias. It’s too bad that the cycle continues on.

Maybe future FLRAs will just try to ensure that their decisions comport with statutory construction and legal precedent, and they will focus on how labor-management relations can benefit the taxpayer. Maybe it’s a crazy concept, but I think it can be done. It doesn’t have to be political. It really doesn’t. And if we ever get to that point, it’ll be Good News. [email protected]

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