D.C. Circuit Reverses FLRA Again

By on April 2, 2012 in News

This case has a slew of complicated case facts involving a decision of a prior political administration (not Bush) to negotiate language getting the Patent and Trademark Office into the legally questionable area of adjusting pay.  I’ll try not to bog us down too much in that issue.  In essence, this case involves a prior decision of FLRA (pre the Ms. Pope & Co. majority) that the only appropriate arrangement an Agency has to bargain was one involving the exercise of a management right under 5 USC§7106(a).

Apparently, FLRA was hot to let the unions bargain arrangements covering any perceived inconvenience whether tied into management rights or not despite Chairperson Pope’s concurrence with the earlier decision.  I suspect another critical ingredient in FLRA’s decision was that the earlier case was decided using the now tanked (by FLRA) “excessive interference” test as opposed to the unions’ preferred scheme represented by FLRA’s “Abrogation Test”.

OPM defines these theories as follows:

EXCESSIVE INTERFERENCE.   A balancing test that the FLRA applies to proposals that are arrangements for employees adversely affected by the exercise of management’s rights in order to determine whether they are negotiable appropriate arrangements within the meaning of § 7106(b)(3). The test involves balancing the extent to which the proposal ameliorates anticipated adverse effects against the extent to which it places restrictions on the exercise of management’s rights. Compare with ABROGATION TEST.

ABROGATION TEST.  A test the Federal Labor Relations Authority (FLRA or Authority) formerly applied in determining whether an arbitration award enforcing a contract provision affecting management’s § 7106(a) rights is deficient. Under that test (which was in existence for 12 years), an award enforcing a contractual provision that is an “arrangement” for employees adversely affected by the exercise of management’s § 7106(a) rights would not be set aside unless it “abrogated” those rights–i.e., unless it left management no discretion at all with respect to the management right(s) at issue. For lead cases see37 FLRA Nos. 20, 67, 70, 103 and 38 FLRA Nos. 3 and 21.

Obviously, these definitions were written before the current FLRA killed “excessive Interference” and reinstituted “abrogation”.  They are still up on the OPM website.  Based on the court’s decision, OPM would be well advised to leave them up.

This case also got wrapped up in whether the Agency had argued collateral estoppel regarding the prior decision.  The Court was apparently disturbed by FLRA’s argument that it hadn’t.    I’m sure this claim was based on FLRA’s work avoidance regulations limiting arguments that may be made on appeal.

The Court said, “While it did not use the magic words “collateral estoppel,” PTO nonetheless argued the substance of a collateral estoppel defense in its exceptions to Award II.  Later in the same paragraph the court couldn’t help saying “(“[T]he arbitral proceedings and the Agency’s exceptions are rife with collateral estoppels implications. Both parties and the Arbitrator recognized the implications of the Authority’s prior decision and the Agency addressed the impact of that decision throughout its exceptions.” (internal citations omitted)). We do as well.”  Apparently, it was lost on FLRA’s Solicitor, who seems to need magic words to be spoken or perhaps yelled into her ear.

It appears clear the court was saying that the “abrogation test” is out because of the precedent set in the prior decision used “excessive interference” as the test.  I’m sure FLRA will claim this is a fact case specific to these facts and no others.  We’ll wait to see if in the next abrogation case that goes to the Circuit, it must again hold first year law classes for FLRA’s attorneys.

As always, the above is my opinion and doesn’t represent anyone else.  If it does represent anyone else’s opinion, I’m glad to hear it.

PTO v. FLRA 11-1019

© 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. O. Weber says:

    In the concurring opinion the Judge (Rogers) make a good point; that the FLRA should not be barred from deciding the same issue under a “precedent” determination if it could have explained the deviation from the “precedent.”  If the FLRA would have explained the reason for the deviation from its ruling in PTO I, the case may have taken a different turn before the Court.

  2. Erspec55 says:

    Bob, I do appreciate your articles more than you might realize, but like most media sources, your take on issues is sometimes skewed in its message.  For instance you state: 
        “Obviously, these definitions were written before the current FLRA killed “excessive Interference” and        reinstituted “abrogation”.  They are still up on the OPM website.  Based on the court’s decision, OPM would be well advised to leave them up.”
    I take that quote as inferring this case was, in part, about the elimination of excessive interference.  That would be far from the truth.  This case was solely about a prior PTO decision and the FLRA disregarding collateral estoppel.  Granted, you addressed the issue and did it well.  But, don’t mislead your faithful readers by saying more than what the case really is.  I personally hope a future administration will see the error of its ways and bring back excessive interference beyond the bargaining table.  I’m with you on that level but let’s call it as it is until it changes,

  3. steve5656546346 says:

    Unions made massive campaign contributions:  they expect a pay off.  The FLRA has been trying to provide it.

    It’s political corruption.

    Indeed, is there ANYTHING more to politics these days than selling government benefits and favors for campaign contributions and votes?

    When a democracy degenerates into competing factions trying to use the government for personal gain, it cannot long endure…

    • FAA says:

      Of course the republicans are beholding to big business aren’t they? Compare Union contributions to Corporate donations you will see who is “buying” votes.

  4. Mad Hatter says:

    Here we go again. The author implies that the decision undermined the FLRA’s abrogation standard for reviewing arbitration decisions.  In fact, the Court stated: “In light of our disposition, we do not address PTO’s alternative
    grounds for review, including its challenge to the Authority’s adoption
    of the abrogation standard.” The decision was based on collateral estoppel and is indeed specific to the facts of this case.  The Court may indeed one day overrule the FLRA regarding the abrogation test, but this was not that day.