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Did FLRA Dodge Court Bullet Based on Agency’s Mistake?

by Bob Gilson |

In an earlier article,  FedSmith reported that the D.C. Circuit Court of Appeals held oral arguments on whether FLRA exceeded its authority (again) in creating a new standard for reviewing arbitration appeals and negotiability appeals related to an Agency head’s review of an agreement under 5 U.S. Code § 7114(c).

On February 7, 2012, the Court issued a decision (see case embedded below) on Agency Head review dismissing the case for lack of jurisdiction.  To quote Judge Karen LeCraft Henderson’s opinion:

“The United States Department of the Treasury (Department) petitions for review of a decision of the Federal Labor Relations Authority (FLRA, Authority) that adopted a new standard to determine when a negotiated contract provision is an “appropriate arrangement” under 5 U.S.C. § 7106(b)(3) and an agency head’s disapproval thereof will therefore be set aside. Nat’l Treasury Emps. Union, 65 F.L.R.A. 509 (2011). Because the Department did not object to the new standard before the Authority—as required under 5 U.S.C. § 7123(c)—we dismiss the Department’s petition for lack of jurisdiction.”

Treasury’s mistake was in not raising its objections before FLRA, the court said.  The case is worth a read as Treasury argued the futility of its making such an argument as well as Member Beck’s dissent.  The Court decision appears reluctant, at least to this reader.  It invited Agencies to bring this issue up again.

There has been no decision as yet on the other case involving the FLRA’s abrogation claim to avoid reviewing arbitrator decisions that violate the law.  The FLRA’s “Abrogation Standard” means, in essence, that if an Agency agrees to language later found to violate law or an arbitrator conjures an interpretation of contract language that violates law, the Agency cannot argue the issue.  As reported before, FLRA likes to interpret laws other than the one addressing Federal labor relations despite the court telling them on a number of occasions not to do so.  It has become particularly lazy about looking at arbitration awards, finding any and all reasons to avoid its statutory mandate to insure that both agreements and arbitrators awards are consistent with the laws governing Federal Agencies.  

As always, any and all opinions herein are mine and mine alone.


Treasury v. FLRA – 11-1102

Based on discussions with some Agencies, and sponsored by RGS, I and some colleagues plan to offer a “Practitioner’s Course in Labor Relations” and a “Practitioner’s Course in Employee Relations” focusing on advising managers, using proven tools to enhance case management, and matters of interest to the specialist, advocate or attorney with a basic grounding in these programs. We plan to offer these around the country and in D.C. If you have an interest in learning more, please let me know. You can do so using the “contact” link at the bottom of this article. RGS has also given us the go ahead to do an update for practitioners this spring in the D.C. area. I’ll follow up with more information as arrangements firm up.

© 2014 Robert J. Gilson. All rights reserved. This article may not be reproduced without express written consent from Robert J. Gilson.

About the Author

Photo of Bob Gilson

Bob Gilson

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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