The Current FLRA's Sad History before the DC Circuit

By on June 26, 2014 in Current Events with 14 Comments

“Those who cannot learn from history are doomed to repeat it.” – George Santayana

The Federal Labor Relations Authority (FLRA) apparently missed the wisdom in this quote as its record before the U.S. Circuit Court of appeals for the District of Columbia (DC Circuit or the court) demonstrates. In at least seven cases before the DC Circuit Court of Appeals, the current FLRA’s interpretation of laws was found to be in error.

The current majority is perhaps following the tradition of a previous FLRA in bringing on the distain of the court for its reasoning in case after case. In 1994, the DC Circuit ruled on a case involving Customs and NTEU. Here’s the DC Circuit’s description of the case:

“We are faced, then, with the FLRA’s construction of a statute drafted by Congress to govern an aspect of foreign trade, the importation of ships’ cargo into the United States. The petitioner presents us with a volley of arguments to support its claim that the Authority improperly compelled the arbitrator, against his better judgment, to interpret a law never meant to regulate labor relations or the assignment of work to employees–and then itself interpreted the law wrongly. The Authority’s primary defense is jurisdictional. Neither we nor any court, it is argued, has the power to review the FLRA’s decision no matter what “law” the arbitrator and the Authority applied in the case.”

Faced with the FLRA’s position in the case, the Court found:

“The very preclusion of judicial review suggests powerfully that Congress could not have contemplated, let alone intended, that all or any part of American law would be definitively interpreted by the FLRA on review of one or a series of cases originally put to arbitration. To give any administrative tribunal such final authority to construe any or all statutes or treaties of the United States would be a staggering delegation, which surely would have provoked considerable congressional debate. That Congress would entrust such sweeping authority to a minor three-member commission with quite restricted expertise is, when one ponders the matter, utterly inconceivable.” (My emphasis)

In the face of such a condemnation, one might expect FLRA to be a little more judicious in developing its reasoning for a decision. I think the court might have been kind to say inconceivable as opposed to silly.  As you will see below, FLRA must not believe it has anything to learn from the court.

Most recently (June 3, 2014), the DC Circuit chastised FLRA for misinterpreting the Inspector General Act. Fedsmith published two articles about this case, mine and Ralph Smith’s which includes a copy of the decision. In this case the FLRA was, in essence, telling an Agency that it must bargain the procedures by which its IG conducts investigations despite the independence of an IG and its lack of any bargaining relationship with the union.

In January of this year, in a case involving IRS and NTEU, the court trashed the FLRA’s so-called “abrogation test” saying:

The Authority’s current interpretation of the statute could, as it concedes, mean that the propriety of two identical provisions, each affecting the exercise of management rights in precisely the same way, would rise or fall on the point at which the agency asserts the arrangement is inappropriate. Section 7106(b)(3) provides no basis for this sort of “magical[]” transformation, as Member Beck put it.” (My emphasis)

In April of 2012, remembering that FLRA was down most of 2013, also in an “abrogation test” case, the court reversed the FLRA. The concurring opinion is clearest in this very complicated case saying:

“The Authority must, consistent with the Administrative Procedure Act’s requirements, squarely address why this precedent should be changed: “[A]n agency changing its course must supply a reasoned analysis indicating that prior policies and standards are being deliberately changed, not casually ignored, and if an agency glosses over or swerves from prior precedents without discussion it may cross the line from tolerably terse to intolerably mute. W & M Props. of Conn., Inc. v. NLRB, 514 F.3d 1341, 1347 (D.C. Cir. 2008) (internal quotation marks and citation omitted) (emphasis added). Because the Authority failed to provide a reasoned analysis for departing from its precedent, I concur in the judgment granting the petition for review. (My emphasis)

In a January 2012 case, the FLRA sustained an arbitrator’s award that the Navy had improperly changed a practice of giving out bottled water to employees. Navy claimed it appropriations law precluded this practice. FLRA ignored Navy’s claim but the court didn’t reversing and remanding the decision.

In a case involving uniform cleaning, DOD suggested that FLRA defer to its (DOD’s) interpretation of its own law. FLRA, ever strong it its belief that it has more expertise than any other agency, said no. The DC Circuit said:

“…the FLRA owes deference to the Department of Defense’s reasonable interpretation of the second uniform statute, 10 U.S.C. § 1593, because the Department administers that statute, see Gen. Servs. Admin., 86 F.3d at 1187, and would exceed its authority by ruling that, in the absence of a provision specifically addressing the maintenance of uniforms, the Air Force has discretion to negotiate with the Union on uniform cleaning services, see Nat’l Fed’n of Fed. Emps., Local 1669, 55 F.L.R.A. at 67.”

Subsequent to the finding in this case, one might argue that a failure to defer to an Agency’s interpretation of the law it is charged to administer should carry penalties against FLRA for wasting taxpayer funds going forward.

In perhaps the most important case to Federal practitioners, the court addressed the concept of perpetual bargaining advocated by the majority at FLRA. The court actually lectured the FLRA on the meaning of the Federal labor law as follows:

“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.”

Most importantly the court found:

“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.”

In a case  that can only be described as arrogant petulance, FLRA took on the General Counsel of the National Labor Relations Board (the Board) finding that no deference should be accorded the Board on its interpretation of the National Labor Relations Act which it has administered since 1935. The Board had argued that its law required that employees of the office of the General Counsel must be separate from other Board employees to avoid conflicts. The Court said:

“The Authority can “assume” but it cannot provide any assurance the Board and the General Counsel will be able to treat each labor issue as either a matter entirely of Board-side or of GC-side concern or agree upon issues of common concern; nor is there good reason to assume the history of coordination between the two will survive consolidation of their employees into a single bargaining unit. Good fences make good neighbors, as Robert Frost observed, but the Authority proposes to take down the fence. Neither we nor the Authority can blithely disregard the potential for discord in what have hitherto been viable collective bargaining relationships.”

I don’t think anyone can read the above and believe that the current majority at FLRA is a good shepherd of public interest, good government or the taxpayer’s dollar. Its fanatical attempt to swing the pendulum in favor of union-friendly statutory construction is not only unwise but short sighted.

Federal Labor Law governing Federal employees says at 5. U.S. Code § 7101(b):

“It is the purpose of this chapter to prescribe certain rights and obligations of the employees of the Federal Government and to establish procedures which are designed to meet the special requirements and needs of the Government. The provisions of this chapter should be interpreted in a manner consistent with the requirement of an effective and efficient Government.”

It appears the majority at FLRA haven’t read the above or at least since not taking office. Perhaps Flannery O’Connor may instruct them with her words that appear written for this exact situation, “You have to quit confusing a madness with a mission.”

As always, my opinions are my own and should not be attached to anyone I work with, for, or have a meal with for that matter.

© 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.

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