In 67 FLRA No. 82 (March 19, 2014), a case involving Social Security and AFGE, the Authority found that a union proposal excessively interfered with a management right and was therefore non-negotiable. A January FedSmith article reported the D.C. Circuit Court of Appeals reversal of FLRA’s application of its formerly cherished abrogation test. Member Pizzella took the opportunity in the SSA case to remind the other members of the court’s finding and suggest they get with it. Rather than paraphrase Member Pizzella, it’s worth your time to read his concurring opinion for yourself. See the following:
“Member Pizzella, concurring:
I agree with my colleagues that the Union’s proposal – that would “preclude management from disciplining and holding employees accountable for their work performance” that results from the commonsense changes to the rotation of duties that were implemented by management – excessively interferes with management’s rights to direct and discipline employees and to assign work.
Unlike my colleagues, however, I would take this opportunity to acknowledge the recent decision of the U.S. Court of Appeals for the D.C. Circuit in U.S. Department of the Treasury, IRS, Office of the Chief Counsel, Washington, D.C. v. FLRA (IRS)2 that calls into question the manner in which the Authority determines whether bargaining proposals and contract provisions impermissibly interfere with § 7106(a) management rights.
For the reasons discussed below, I would embrace the excessive interference standard to determine whether a proposal or provision impermissibly interferes with any § 7106(a) management right regardless of whether the matter arises as an exception to an arbitrator’s award, as a negotiability dispute involving proposals, or as the result of a negotiability appeal involving agency-head disapproval of contract provisions under § 7114(c)(2).
Prior to my confirmation as a Member of the Authority (in November 2013), my colleagues suddenly, and unexpectedly, determined (entirely sua sponte) that they would no longer apply the excessive interference standard to determine whether an arbitrator’s award impermissibly interferes with a management right but would instead re-adopt a standard – abrogation3 – that was previously abandoned by the Authority in 2002.4 In other words, my colleagues determined that an arbitrator’s application of a contractual provision would no longer be found to be contrary to law unless it entirely “abrogate[d] – i.e., waive[d]” a management right.5 Several months later in NTEU I, my colleagues expanded (again sua sponte) the application of the abrogation standard into the context of “negotiability appeal[s] involving agency-head disapproval of contract provisions” under § 7114(c)(2)6 even though the excessive interference standard had been in this context (and upheld by several federal courts) for thirty years. But in the context of “negotiability cases involving proposals,” my colleagues continued to apply the excessive interference standard.
As this summary demonstrates, the Authority’s precedent has shifted aimlessly between the application of the excessive interference and abrogation standards for nearly thirty years. As a consequence, agencies and unions alike have been unable to predict with any certainty under which standard they should argue negotiability cases and exceptions that challenge an arbitrator’s award because it impermissibly interferes with a management right and under which standard their cases ultimately will be adjudicated.
Finally, on January 3, 2014, the court in IRS delivered an unmistakable rebuke to the Authority for its “inconsistent interpretations” of these standards. 10 The court specifically found that the Authority’s recent adoption of the abrogation standard was “arbitrary and capricious” in the context of § 7114(c)(2) agency-head review and “vacate[d] the Authority’s decision” to expand the abrogation standard into that context.11 In a direct challenge to the Authority’s rationale, the court found that “two identical provisions” affecting management rights “in precisely the same way” cannot be found to be appropriate or inappropriate depending “on the point at which the agency asserts” its arguments (i.e., at the bargaining table, upon agency head review, or as the result of an arbitral award).
Besides the clear mandate of the court, there are many other reasons why it is imperative that the Authority bring clarity to this matter once and for all. But foremost is the reality that the ongoing shifting of standards by the Authority does not “facilitate and encourage the amicable settlement of disputes” and does not bring any sense of finality or predictability to the parties that look to us for a fair adjudication of their goodfaith disputes.
Accordingly, it is imperative that the Authority finally adopt excessive interference as the sole standard by which we will determine whether a proposal or provision impermissibly interferes with § 7106(a) management rights regardless of the “point at which [an] agency asserts [that an] arrangement is inappropriate.” As the court acknowledged, it should not matter whether the matter arises in a negotiability dispute involving proposals, as the result of a negotiability appeal involving agency-head disapproval of contract provisions under § 7114(c)(2), or as an exception to an arbitrator’s award.
As to the first scenario, in this case, my colleagues “reject” the Union’s request to expand the abrogation standard to negotiability cases involving proposals. I agree with my colleagues because the excessive interference standard has not only served the Authority well for thirty years,17 but it has been upheld consistently by federal courts in seven different federal circuits and similar “interference” standards have been endorsed by numerous state courts to define the extent to which various collective bargaining arrangements may impinge on public employer-management rights. To the contrary, no federal court has ever endorsed the abrogation standard, and the court in IRS “vacate[d]” the Authority’s attempt to insert that standard into negotiability appeals that involve agency-head disapproval under § 7114(c)(2) and tacitly endorsed excessive interference as the sole standard the Authority should apply.
Furthermore, in view of the court’s warning that – “two identical provisions” affecting management rights “in precisely the same way” cannot be found to be appropriate or inappropriate depending “on the point at which the agency asserts” its arguments – and its observation – that “the Authority has given no indication that it plans to abandon the ‘excessive interference’ [standard]” – there is no sound justification to continue to apply the abrogation standard only when an agency challenges an arbitrator’s award because it impermissibly interferes with a management right.
The fairness and utility of the abrogation standard has been challenged repeatedly. In 2002, Member Armendariz observed that “the Authority has never applied [the abrogation] standard in such a way to find that an award was deficient” and that “[s]uch a uniformly one-sided application effectively renders the test meaningless and removes all of its utility.” In 2011, Member Beck echoed these same concerns and noted, that after twenty years of applying abrogation in various contexts, the Authority still has never “found that a contract provision abrogates any management right; it just doesn’t happen.” My research reaffirms that since NTEU 1 in 2011, the Authority still has yet to find that any proposal, any provision, or any application of contract provisions by any arbitrator abrogates any management right.
Accordingly, I would use this case to embrace a single standard – excessive interference – for determining whether a proposal or provision impermissibly interferes with management rights. I believe that our failure to do so will lead only to further admonitions from federal courts that recently have criticized the reasoning employed by the Authority in several significant cases. We cannot simply ignore, and fail to acknowledge, court decisions that we find to be inconvenient. And as I noted in my first opinion as a Member of the Authority, “in order for the federal labor-management relations community to contribute to the effective conduct of government . . . [t]he Authority needs to issue decisions that withstand judicial scrutiny.” Therefore, I am perplexed that my colleagues seem reluctant to give even a passing nod to the court’s decision in IRS.
Under these circumstances, it is time for the Authority to bring this matter to repose for the labor-management relations community and to endorse the only standard that is fundamentally fair and that has been affirmatively embraced by the federal courts.
Just a note, I took out the footnotes in my quotation but otherwise changed not a word. You can read the article and case cited by following the highlighted links. As always, any responsibility for opinions stated in the first paragraph are mine alone. I’m sure Mr. Pizzella will be glad to take responsibility for what I’ve quoted.
I’ve been doing a fair amount of bargaining lately and am advised by a number of people that Agencies could use negotiation assistance involving such things as team training, preparation, proposal development and union proposal analysis. If your Agency could use a hand, please get in touch with me.