Frustration in the Court

By on January 26, 2005 in Current Events with 0 Comments

The employees of the Bureau of Prisons in Forrest City, Arkansas had no intention of becoming a symbol for why change is needed in the federal labor relations program back in 1998. It was probably a routine day in a federal prison. In most instances, this routine event would have gone unnoticed with no litigation, no expenditure of tens or perhaps hundreds of thousands of dollars with little to show for all the time and money. But fate and personalities intervened and the full bureaucratic and legal machinery of the Government of the United States is now at work to resolve the problem.

Back in 1998, an employee of the Bureau of Prisons in Forrest City, Arkansas requested to take a day off. For some reason, the employee took the leave but it apparently should not have been granted. The employee received a one-day suspension as a result of taking the unauthorized leave. Nearly seven years later, the agency and the union may (or perhaps may not) be getting close to the end of litigating this one-day suspension.

The employee’s union filed a request for information with the agency on July 9, 1998. This request has now been the subject of a hearing before an administrative law judge of the FLRA, a decision of the FLRA, a dissenting opinion by one FLRA member, a case before the DC Circuit of Appeals, and a decision by the Court of Appeals for the Eighth Circuit.

And the result of this protracted, knock-down, drag-out fight?

No one really knows. It’s not over yet. The Eighth Circuit has remanded the case back to the FLRA for further review. So we know there will be at least one more decision by the FLRA on the case. And there is always the possibility of further review in the courts. The Court’s decision doesn’t mention what happened to the original suspension of the employee; it has been overshadowed by other legal issues.

The case prompted the court to make the following observation:

"Although a casual observer could complain about the follies of the federal government in spending countless hours and dollars engaged in this protracted litigation emanating from a one-day suspension of a federal employee, perhaps a quote from President Harry S. Truman might lessen the blow of this inefficiency: ‘Wherever you have an efficient government you have a dictatorship.’ Robert I. Fitzhenry, The Harper Book of Quotations 184 (3d ed. 1993). This case reveals our Nation certainly does not bow to a dictatorship, but, alas, remains a Republic guided by the Rule of Law, no matter how inefficiently it may operate."

The bone of contention is the agency’s "Special Investigative Supervisor Manual." The agency doesn’t want the union to see it and the union wants to get a copy of it.

But here’s the good news: We do have a decision on part of the case. The court confirmed that the agency did commit an unfair labor practice but does not have to give up the entire manual.

In a highly abbreviated format, here is what we know so far: The Bureau of Prisons committed an unfair labor practice by not giving the union more information about investigating employees who may be subject to disciplinary action. On the other hand, requiring the agency to give out the entire manual is not required because it has nothing to do with investigating employees in this way.

But, despite all the paperwork issued so far, the Court isn’t sure what the FLRA meant to do. Here is what the Court said:

"Notwithstanding our conclusion that the Authority arbitrarily issued such a broad order, and, in doing so, abused its broad discretion, we suspect the Authority did not really intend to abuse its discretion and force the Bureau to furnish AFGE with the entire SIS Manual."

We’re glad the Court cleared that up.

In other words, the Court thinks the FLRA required the Bureau of Prisons to release the entire manual. But it isn’t sure what the FLRA really meant to do so they are sending the case back to the FLRA.

The Court wants the FLRA to limit its order to release only those portions of the manual that relate to the ability of the union to represent employees in the bargaining unit and not the entire manual.

In its apparent frustration, the Court tells the FLRA how to issue its next decision. "We suggest the amended order specifically list the relevant pages, or portions of pages, of the SIS Manual that remedy the unfair labor practices and order the Bureau to furnish only those limited, and precise, portions of the SIS Manual. By using exacting language as to what portions of the SIS Manual the Bureau must turn over to AFGE, the Authority will, hopefully, finally end this dispute over a one-day suspension without further appellate review."

Anyone interested in a review of the case law regarding release of information to a union representing agency employees will find this case of interest.

You can read the Court’s decision in the case right here. The link to the decisions by the ALJ and the FLRA are on the left hand side of this page.

© 2016 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.


About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters onĀ federal human resources.