Did FLRA Make a Sneaky Decision?

By on October 2, 2012 in Court Cases, News

Recently the Federal Labor Relations Authority (FLRA) decided a Bureau of Prison’s case in which the Agency argued that four of the union’s proposals both violated an Agency’s right to determine its “internal security practices” under 5 USC 7106 (a)(1) and were only bargainable at the Agency’s election under 5 USC § 7106(b).

So Why is This Sneaky?

FLRA found the four proposals to violate an Agency right to determine internal security practices and not to constitute an appropriate arrangement.  It ignores, in the body of the decision, Prison’s argument that the proposals are only bargainable at the Agency’s election.  In footnotes, FLRA claims:

“Based on our decision, we find that it is unnecessary to address the Agency’s assertion that Proposal 1 affects its rights under § 7106(b)(1) of the Statute.  See NTEU,62 FLRA 267, 271, 272 & n.11 (2007) (NTEU II) (Chairman Cabaniss dissenting in part) (finding it unnecessary to address whether proposal excessively interfered with the agency’s right to determine the means of performing work after finding that the proposal affected the agency’s right to determine internal security practices and was not an appropriate arrangement).”

For the past two years, FLRA has been finding just about every union proposal violating a management right to be an appropriate arrangement and ordering the Agency to bargain.

This decision starkly avoids a crucial issue i.e., if the matter is permissive, then once an Agency decides not to bargain, FLRA has no say in the matter.  If it avoids addressing 5 USC § 7106 (b)(1), it gets to call the shot one way or the other.  Some might say I’m over reading the case because of past perceived FLRA shortcomings and downright wrongheaded thinking.  Maybe so, but as William Burroughs once said, “Sometimes paranoia’s just having all the facts.”

As always, any opinion expressed above is my responsibility.

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

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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.

15 Replies

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  1. Penny says:

    You’ve been retired for quite a while now, Bob.  Time to take your fingers out of your ears, remove that pained facial expression, and try to listen and evaluate the commentary.  The labor relations you practiced in your long ago career has evolved.  Anyone can read the FLRA case blurbs and spew opinion (misguided though it may be).  FLRA rules on the facts and circumstances of the case before it (relying upon case law, of course).  FLRA is not required to rule in management’s favor in the same number of instances that it ruled for the union.  You can clench your fists and holler “it’s not fair!”  all you want. 

  2. GiGe says:

    Doesn’t matter – our union reps are so in bed with our management it is nearly impossible to discern who’s toes – except for the foot fungus – is popping out of the sheets.

    • Hello again, hello! says:

      You have it confused.  Management and the Union are not “in bed” with each other.  No, no, no.  We are working together under the spirit and cooperation of partnership and pre decisional involvement.  This is what all unions want.  working together, getting their voices heard and understood byt management.  It is a great thing, really it is.  Sorry union folks cant have it both ways.  If it is bad as you say, I suggest running for an officer position.  In that way, you can hp out of bed.

  3. JeanFisher says:

    No, Bob, you weren’t “overreading” the case.  “Underreading” would be more accurate.  Once again you either didn’t do your homework or purposely distorted facts in support of a snarky accusation—two age-old yellow journalism techniques.  The Authority explained several years ago when and how it would address 7106(b)(1) claims in this context.   In NTEU and CBP, 64 FLRA 395 (2010), after finding the Union’s proposal was an appropriate arrangement, the Authority went on to analyze whether it affected a management-selected means of performing work, explaining:  “[S]ee also NTEU, 62 FLRA 321, 323-26 (2007) (Chairman Cabaniss dissenting) (after finding proposal was an appropriate arrangement for the right to determine internal security practices, Authority assessed whether the proposal was outside the duty to bargain because it affected the rights to determine technology, methods and means of performing work).”   

    • Author says:

      A couple of thousand years ago, Cicero
      said “ “We must make a personal attack when there is no
      argumentative basis for our speech”.  Snarky, huh?  Yellow Journalism, huh?  Perhaps you work for FLRA, which has had a free ride from public media criticism.  Perhaps their most severe critic, the DC Circuit, is by your standard be snarky when it overrules them again and again with little apparent effect.  One can only hope that their appropriations committees read some of their decisions and perhaps my articles.

      • Guest316 says:

        The idea that you, of all people, could get upset at personal attacks is astounding since that’s your bread and butter.  And it’s rather telling that you did not respond to her reliance on caselaw that completely tore down the crux of your argument.

    • Guest316 says:

      Got it in one.  And another point, even if the FLRA found that the proposals addressed permissive subjects of bargaining, the employer would still have to establish that the proposal was not an appropriate arrangement.  Contrary to the advice the Author’s suggesting to potentially paying (!) customers, an employer simply cannot say that a proposal concerns a permissive subject and be done with it. 

  4. steve5656546346 says:

    Unions pay out a LOT of money in campaign contributions: they expect, and receive, pay back.

    Political corruption.  But it’s legal political corruption!

  5. FedEE says:

    So your saying that even though the FLRA found the proposal nonnegotiable, it should have considered whether it was permissive? That makes absolutely no sense.

  6. Guest316 says:

    Holy cow, people actually pay you for this type of “analysis?”

  7. Me says:

    It does seem strange for the FLRA not to make a decision on the merits of the Agency’s argument.  I think they probably did want to avoid any sort of precedent here since technology is of growing concern to the Unions, and they all want smartphones to play with, where this would have been a clear “No!” on the subject.  They dodged that clear no and went with the safer nonnegotiability determination. 

    • Me says:

      It suggests that they would be open to requiring some technology/means/methods bargaining here, but in this instance it “excessively interfered.”  If you look at proposal #5, that’s essentially what happened with the security door ruling.

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