Federal labor law often deals with arcane "tests" or other means for trying to decipher whether a proposal or policy falls within the requirements of the labor relations statute. The result is that even those with an expertise in the area cannot tell with any certainty whether a topic is a required subject of bargaining between an agency and a union.
That uncertainty creates a lot of litigation.
Here is a case in point.
The Bureau of Customs and Border Protection (now part of the Department of Homeland Security) has a firearms policy for training new officers. New officers are required to demonstrate proficiency in the use of firearms. If a new employee is not proficient in this area, an agency policy allowed up to 80 hours of remedial training to correct the deficiency.
The agency changed the firearms policy to reduce the number of hours allowed for deficiency training from 80 to eight. The agency gave the policy change to the union and noted in the subsequent litigation that it had never given more than 8 hours of remedial training in any event.
The union filed an unfair labor practice (ULP) charge claiming that the agency violated its right to negotiate the change in firearms policy.
The agency argued before the administrative law judge (ALJ) that the change was so insignificant (de minimis) it did not create a bargaining obligation. The ALJ didn’t buy that argument and concluded that even if one employee was fired without having more than 8 hours of additional training, the agency should have notified the union prior to making the change to give it a chance to negotiate on the change.
The case then went to the Federal Labor Relations Authority (FLRA) for further review. The FLRA decided, in effect, that the issue was trivial and did not create a bargaining obligation. It dismissed the ULP allegation. It concluded the ULP should be dismissed as it was not convinced any employee had been fired solely because of a deficiency in firearms training.
But that wasn’t the end of the saga. The case then went to federal court.
The court found that the change in question was not a trivial one. It reasoned that the policy change increased the likelihood of an employee being fired for a firearms deficiency
The court ruled that the agency "did not replace the eighty remedial hours with an equivalent, and firearms deficiency would result in termination. This massive change had a reasonably foreseeable, greater-than-de-minimis effect on working conditions. Because we find that the reduction in remedial training hours had an appreciable effect on working conditions, we conclude that the FLRA unreasonably applied the de minimis exception."
As a result, the court granted the union’s petition in AFGE, National Border Patrol Council v. FLRA, Court of Appeals for the DC Circuit, No. 05-1268 (May 5, 2006)
