The Federal Labor Relations Authority (FLRA) appears poised to reshape what’s bargainable in the Federal sector. While the purpose of this article is to look at FLRA’s take on what makes a union proposal an "appropriate arrangement", let’s first take a quick at FLRA’s box score in Volume 64 of its decisions (Last six months or so).
64 FLRA No. 98 Weather Service – 1 union proposal – negotiable
That’s 8 of 10 favorable decisions to the unions. Of these, the latest involving the Weather Service the case and on remand from the courts, it involves a union proposal calling for the Agency to:
"Increase staff [at the Anchorage Forecast office] by 5 forecasters, 4 HMTs [hydrological meteorological technicians] and 1 IT [information technology officer] to bring it into line with the staffing level that would accompany two grid domains in the CONUS [continental United States]."
FLRA cited the court’s holding that "the determination whether a proposal is an appropriate arrangement "depends primarily on the extent to which the interference [with management rights] hampers the ability of an agency to perform its core functions — to get its work done in an efficient and effective way."
FLRA’s decision: "we find that the Agency has not met its burden to demonstrate that the proposal would significantly hamper its ability to get its job done."
FLRA appeared persuaded by a series of what it characterizes as assertions by the union as opposed by those of the Agency. The union, wisely I might add, apparently argued its case from selected Agency reports and documents (evidence). I got the impression that the union evidence wasn’t countered by Agency evidence but by argument. Now this is not surprising as FLRA has downplayed the use of evidence in negotiability proceedings until recently. In the CBP case mentioned above, FLRA considered unsubstantiated emails from union officials rebutting an Agency assertion. If true, it again proves that evidence is becoming a key element in negotiability proceedings before FLRA.
FLRA as Arbiter of Agency Management Operational Decisions
As any who read my columns know, I believe FLRA’s arrogance about what it knows is boundless and its knowledge of what it doesn’t know is nonexistent. I seem to remember that in order to get to a appropriate arrangement, the law requires some form of adverse effect, a matter our current FLRA appears to assume in every case based on a mere allegation. In the Weather Service case and in the others cited above, it appears the burden on proving that a proposal is not negotiable falls squarely on the Agency not on the union who claims it is. Sounds like more backward logic to me. Also of concern is a series of questions not addressed by the FLRA in its cases:
Is any alleged arrangement appropriate?
Is the alleged appropriate arrangement the only one available?
How much arrangement is too much?
What is the most appropriate arrangement?
Is there a minimum threshold of appropriateness?
Does the potential exercise of a management right trigger an obligation tat provokes an appropriate arrangement claim for a proposal?
Is it appropriate unless the Agency can prove otherwise? (See Below)
Failing the Laugh Test
Also of interest is FLRA’s throwaway line in these decisions that it is "making no judgment on the merits of the proposal".
Let’s see if I’ve got this right. FLRA says a union proposal is an appropriate arrangement. So the Agency proceeds to the Federal Service Impasses Panel. How steep do you think the hill will be that an Agency must push the rock up to convince the Panel that the FLRA’s previously determined appropriate arrangement isn’t appropriate?
Our President once said; "Most people who serve in Washington have been trained either as lawyers or as political operatives – professions that tend to place a premium on winning arguments rather than solving problems." Man O Man, is he ever right about that as FLRA loses any credibility it might have had as a neutral
Dealing With It
The FLRA has held few evidentiary proceedings in deciding a myriad of cases. Perhaps it’s time to take them up on their own regulations at 5 CFR 2424.24 and provide a complete record to support a position that a series of potential arrangements are inappropriate. Under those same regulations, an Agency can request a hearing.
I can’t help but wonder what the courts would do if FLRA refused to hold an evidentiary proceeding at an Agency’s request and then ruled against the Agency on a matter as obviously disputable as what would be appropriate, under what circumstances, as applicable to what employees, during what time period, under what legislative mandate, subject to what budget constraints, etc., etc., etc. The Federal Agency lawyers I know surely know how to build a case and a number of them might welcome the challenge. The FLRA has certainly brought such an Agency approach on itself.
On Another Front
It is rumored that the Transportation Security Administration has advised the FLRA that it is standing on its previous determination that its statute gives it the right to determine whether it must accord representational rights to a union. Since there is an existing court supported FLRA decision confirming TSA’s position, I’d like to see whether and how FLRA will deal with AFGE and NTEU’s petitions seeking recognition.
There appears no legal means to get it before the Authority members but FLRA’s Regional Director’s performance rating may be on the line, so let’s see what happens next.
As always, these are my opinions and mine alone. BTW, I’m scheduled to conduct a class on negotiability in DC in May. Call Dennis Hermann at 757-723-1051 for more info.
Bob Gilson is a consultant with a specialty in working with and training Federal agencies to resolve employee problems at all levels. A retired agency labor and employee relations director, Bob has authored or co-authored a number of books dealing with Federal issues and also conducts training seminars.