DC Circuit Court Slams FLRA in Landmark Decision

By on August 1, 2011 in Current Events with 14 Comments

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.”

(My emphasis)

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:


My fixed principle never to be the tool of any man, nor the partisan of any nation, would forever exclude me from the smiles and favors or courts.”

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.

Prisons vs. FLRA

© 2016 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.


About the Author

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.

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  1. Viking01 says:

    Bob, you just don’t get it.  NSPS is gone.  Get over it.

  2. Guest says:

    The FLRA has been a political animal since the very beginning.  Its record before the courts has been dismissal, its decision often nonsensical. Nothing has change nor will it.  All one can hope for is that their ideologs are in charge.

  3. FincaTeta says:

    “I have accused FLRA of arrogance and unbridled political partisanship in prior articles” to quote Senor Gilson.  It makes the apolitical observer question the author’s own political motives when he interjects politics into the FLRA decisions.  When the deck was stacked with right-wing ideologues, the author was silent about the anti-union stance of FLRA.
    In the quest for balanced reporting it would be refreshing to see Mr. Gilson write about the union busting tactics going on in places like Michigan.  If the radical right wing is successful on the state level, it is only a matter of time before they come after unions in the federal sector.
    I’m sure Bob could approach the topic without political bias.

    • Robbie Kunreuther says:

      There’s a difference between union busting (as in places like Wisconsin… and perhaps Michigan) and reinterpreting the meaning of a law.  When Bob writes about unbridled partisan partisanship, some of us wish he would bridle his own prose.  By the same token, he’s right that the FLRA has sought to redraw settled case law in ways that make less sense than the interpretations of preceding decades — including the eight years under Clinton.  This decision has me wondering if there’s more to come.  Agencies may start appealing cases re: “abrogation” of their “Management Rights” to the courts and getting similar rejection of the FLRA’s ventures into re-defining the intent of 5USC Chapter 71.  …and what about labor arbitrators who change performance ratings when rectifying a procedural error?

      • Management Attorney says:

        Robbie is on target totally.  I’m not an FLRA basher – I consider them umpires who are always wrong when the call goes the other way but a necessary evil.  On the other hand, some twists of law and facts defy logic.  Consider 64 FLRA 635 where, in a split decision, the majority found a union proposal to allow employees to eat in a certain dining room (there were ample eating facilities elsewhere) to be a negotiable “arrangement”.  The only trouble was this was not the exercise of a management right.  The majority took a proposal that, by law, didn’t affect a condition of employment and, by fiat, turned it into a management right in order to find a negotiable arrangement.

      • Guest says:

        If Wisconsin is busting unions by taking bargaining over fringe benefits away, to show his support why doesn’t the President propose to change the law to permit unions in the Federal sector to bargain over fringe benefits (e.g., retirement plans, health care costs, leave).  Wisconsin wants to align its law with the Federal law.  Doesn’t seem like too much as ask.

    • Guest says:

      Once again a reminder that George Meany and President Roosevelt took the position that unions should not represent public workers.  What has happened in public sector labor relations at all levels of government has proved them right.  It has worked to the detriment of the public at large as unions pursue their agendas helped by the politicians that they successfully get elected into office and drive the costs of government, primarily at the local and state level, to the point that they face financial disaster.  It is time for this to end.  The problem is not quite as great at the Federal level because the unions are left to “Partner” with OPM while the really important decisions (e.g., on debt reduction/government restructuring) are made with no effective union involvement.  All they can do is hinder management as they continue to misrepresent the employees in their bargaining units. Finanly, why any management organization would allow Larry Evens to be an arbitrator is beyond me.

      • james baxter says:

        Guest, Federal workers are barred from negotiating salaries and benefits…so you missed the boat on your complaint about them.  They can only negotiate over working conditions.

    • The Author says:

      The reality is that the Democrats politicized Federal labor relations starting with Clinton’s Hatch Act “reform” and “partnership” and continuing with Obama’s Forums and Pre-decisional involvement in the hope of locking in both union support and Federal employee votes.  They both miscalculated in that Federal employees aren’t so easily led as union members in the private sector.  What’s happened is that the unions woke a sleeping dragon of Republican countermeasures when they got in power.  The Bush administration wasn’t at all smart about its approach a la NSPS and MaxHR.  But the unions taught the republicans a lesson by winning a court ordered end to those initiatives.  I suspect the next Republicans in control of the three houses won’t make the same mistake and AFL-CIO and the Democrats will have a hard fight to prevent an all out repeal of Jimmy Carter’s Federal labor statute.  We get caught up in thinking about this year while effects are often decades away as in Clinton’s impeachment proceedings as payback for the Nixon impeachment and so on and so on.   The pendulum swings so far now (RE: the current FLRA) that instability in career government is becoming the rule not the exception.  The more instability, the more Congress will play with career Federal employee systems before, during and after one serves.  The unions either haven’t figured any of this out or enjoy been used.  Do they deserve what they get?  You figure it out.

      • Management Attorney says:

        You are probably right, Bob, that the pendulum has gone so far that Republicans will wipe labor relations off the federal landscape if given the opportunity.  You are also right that the unions made a strategic blunder in not hedging their bets.  In their defense, though, where are the pro-fed Republicans of yesteryear such as Tom Davis and Ted Stevens?  Before we write off unions I would note that many Republican members of congress who have a federal presence in their state or district enjoy good relationships with local union officials because the unions are all too glad to rat out the perceived transgressions of local managers.

        • The Author says:

          After a century or more of locating military bases and Federal facilities based on Congressional seniority, first we had BRAC and now we’re going to see cuts in other Federal programs.  I believe that truly all politics are local and the Hill, if it can, will move functions to state and local governments first and worry about Feds second.  No one is being honest about the scope of our economic problems and we will see whatever money there is going back to the states it comes from at the expense of the Federal government.

  4. steve5656546346 says:

    When politicization, and political pay offs, trumps all else:  you have the FLRA.

    The next step is for political pressure to be brought against agencies to try to force them to NOT appeal FLRA decisions.

  5. Management Attorney says:

    It’s interesting that the arbitrator was Larry Evans who retired as a manager from the FLRA and was well versed in its case law and legal principles.