On July 8, 2011, the D.C. Circuit Court of Appeals handed down a landmark decision that affirmed a policy making a collective bargaining agreement the law of the workplace and rejecting the notion that unending mid-term or “Impact and Implementation”, as it is commonly known, bargaining is an inevitable part of Federal sector labor relations. The decision also calls into question the FLRA’s criteria for the review of arbitrator awards. (The decision can also be read in its entirety at the end of this article.)
The idea of endless Federal sector bargaining results from a contorted view of 5 U.S. Code § 7106(b) which states:
Nothing in this section shall preclude any agency and any labor organization from negotiating
(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;
(2) procedures which management officials of the agency will observe in exercising any authority under this section; or
(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials. (My Emphasis)
Federal unions would have us believe that almost any Agency decision is subject to their ability to bargain over it, frequently holding up needed change only to demonstrate their power to do so.
In the late 1980s, the FLRA established a “covered by” policy to use in future decisions. Under this policy, if a collective bargaining agreement (the contract) addressed a matter either explicitly or implicitly, the duty of an Agency to bargain over the subject addressed in the agreement was limited. Both the Clinton and Obama Authorities took an extremely narrow view of the policy but could not ignore it because of decisions such as that discussed below.
The idea of endless bargaining was fortified by this Authority’s policy of never finding an arrangement inappropriate. The FLRA, at one time, gave effect to the wording of the statute that for an arrangement to be judged appropriate, the union first had to show an adverse impact. The politicization of the current Authority has produced a policy in which the FLRA rubber stamps union proposals as appropriate arrangements in virtually every case it hears.
The current decision comes almost 20 years (April 1992) after the same court slammed FLRA in a “covered by” case involving the Marine Corps in which the court found a similar fault with FLRA’s logic as follows:
“The analytical approach applied by the Authority … completely fails to take account of the fundamental distinction between the exercise of the right to bargain and the waiver of that right, a distinction which the Authority itself recognized in IRS II. Because this failure is unexplained–and, indeed, inexplicable–the Authority’s decisions cannot be sustained.
In addition to constituting an unexplained departure from the sensible analytical method adopted in IRS II, the “waiver” approach applied by the Authority in the cases at bar produces perverse and illogical results that cannot be squared with the policies of the FSLMRS. This circumstance provides a second ground upon which the Authority’s decisions must be reversed.”
The current case involves the Bureau of Prisons and AFGE and the issue is a contractual bidding system under which job assignments are scheduled. Based on funding cuts, the Agency had to reshuffle the kinds of assignments employees were given. The Agency determined that there were some “mission critical” assignments leaving non-critical assignments to be done only as needed. The union filed a grievance when the Agency said the procedure for making assignments was “covered by” the contract. The arbitrator found Agency to have erred. FLRA reviewed the Award and dismissed the Agency exception as usual and the Agency appealed.
The court defined the issue as whether or not FLRA had erred in upholding the Arbitrator’s award holding the Bureau had a duty to bargain over its implementation of a “mission critical” standard for staffing federal correctional institutions. The Court found:
“Because the Authority unreasonably concluded the mission critical standard is not “covered by” the collective bargaining agreement between the Bureau and its employees’ union, we grant the petition and vacate the Authority’s decision.” (My emphasis)
The court, in an interesting turn, found “the best evidence” for its decision in the very testimony of the Union’s lead negotiator when the contract was bargained. The union leader characterized the article covering assignments as not what the union wanted but a compromise. The court picked up on the union negotiator’s testimony in the hearing and said:
“Because the parties reached an agreement about how and when management would exercise its right to assign work, the implementation of those procedures, and the resulting impact, do not give rise to a further duty to bargain. Article 18 (The relevant article – author) therefore covers and preempts challenges to all specific outcomes of the assignment process.”
The Court next said the following:
“The Authority erred insofar as it held negotiated procedures such as those in Article 18 cannot cover decisions about substance. In fact that is exactly what § 7106 of the Statute contemplates.”
The crux of the decision and its import rest on the following words of the court:
“We will therefore reject any construction of a collective bargaining agreement that treats it as but “a starting point for constant negotiation over every agency action.”
Yet to be seen is the future effect of this decision on FLRA’s recent policy of only setting aside an award if it can be incontrovertibly shown that the award directly violated a law the Authority agrees with. The court, continuing to lambaste FLRA, made the following statement:
“Ignoring this inconvenient history (as had the arbitrator), the Authority simply deferred to the findings in the award and concluded the Master Agreement did not cover the mission critical standard. 64 F.L.R.A. at 561. Neither in its decision nor in its brief on appeal has the Authority addressed Glover’s testimony about the origins of Article 18. It has also ignored the arbitrator’s belated realization that Article 18, even without the mission critical standard, permitted wardens to adopt the very rosters about which the Union had grieved. The Authority abused its discretion by approving an award so patently at odds with itself.” (My emphasis).
In conclusion, an apparently fed up court said,
“The Authority endorsed an incoherent arbitral award and embraced an unreasonably narrow view of what the Master Agreement “covers.” Because its decision is thus “incompatible with … the terms [and] the purpose” of the Statute, ‘we are obliged to intervene.’ ”
I have accused FLRA of arrogance and unbridled political partisanship in prior articles. I think that accusation is true of the Authority’s policies leading to this decision as well. (See, for example, FLRA Seeking to Emasculate Agency Head Reviewand Federal Union Pre-Decisional Bargaining: Is There Any Limit on the Scope?)
John Adams, our second President said:
I don’t think the FLRA loses sleep over any of Mr. Adams’ concerns and certainly not over any of mine, I’m sure.
Once again, any view you perceive from the above is my responsibility alone.
© 2014 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.