Evidence in Negotiability Cases? The FLRA Greases a Slippery Slope

On remand from a court decision, FLRA was instructed to revisit a record. In a decision blaming the Agency for not rebutting the Union’s lousy evidence, FLRA relies on unsupported emails to decide the case. The author suggests that this case offers the parties an opportunity to dramatically affect future negotiability proceedings.

In its thirty year history, no one could fault the Federal Labor Relations Authority’s (FLRA) evidence findings in negotiability cases. That is largely because the agency rarely considers evidence in making decisions on what the labor relations statute means. (Editor’s Note: A negotiability case is one in which the FLRA makes a decision on whether a union’s proposal is subject to negotiation with a union under the provisions of the federal labor relations statute.)

Typically, Federal Labor Relations Authority members push the case law in an ideologically and politically correct way based on the weight of the vote among the members.  The Authority’s regulations make scant reference to submissions of evidence in negotiability disputes and typically they have relied on argument rather than evidence.  In fact, the Authority’s Guide to the  Federal Labor Relations Authority Negotiability Appeals Process, mentions the word evidence not at all.

Once in a blue moon (the last I remember were the DOD teacher pay and non-appropriated fund pay cases many years ago), the FLRA has convened a hearing before deciding a case.  But in most instances it has relied, often without consulting others with expertise, on its own world view to interpret the federal labor statute.  As I have written before, this may account for its abysmal showing before the Supreme Court and has earned it the disdain of such Agencies as the Office of Government Ethics whose regulations it has mauled with impunity.

The current court case revolved around a union proposal on whether beard length would affect internal security procedures if the Agency required respirator use.  The union, smartly in the original case, submitted a number of unsubstantiated emails from very interested parties saying that there was no respirator policy, that employees had never gotten respirator training and the like.

The Agency, not very smartly it seems, did not rebut the union’s “evidence”, relying apparently on some, in retrospect, not so brilliant arguments to save the day. The court, finding no support for the Authority’s holding based on the Agency’s argument, remanded the case for further review.

In an amazing show of hubris, the FLRA decided its remand case without giving the parties an opportunity to supplement the record.  Yet in its remand decision (63 FLRA No. 102, May 14, 2009),  the Authority beats up on the Agency for not answering the union’s “evidence submission”.  This is particularly bad decision writing and even worse decision making. The Court sent it back to the Authority for the exact purpose of  conducting “further proceedings consistent with this opinion”.

The further proceedings, it appears, consisted of a gathering of the two members in which it was clearly decided to take the convenient, cheap and expedient path of rewriting the earlier decision without offering any further proceedings to the parties at all.

There is a solution to this nonsense for all the parties who deal with the FLRA on negotiability cases.  Use the Authority’s Form and check the block to request a hearing.  Accompany the submission with affidavits, certified documents, pictures, videos and whatever else will support your case. Offer managers who know something about the issues at the shop floor level an opportunity to say their piece about why bargaining on the issue is a mistake. The FLRA has gotten away with pontificating without a record for too long. If it denies your hearing request or fails to consider your submission, I bet the courts will listen.

Courts love a record as much as the FLRA appears to hate one. Over the past almost thirty years, a number of courts have expressed their lack of comfort with FLRA rulings based almost exclusively on a group of K Street lawyers plucking theories of how Agencies operate right out of that thin Washington air.

By the way, I think both parties to labor relations would be served with an evidentiary process. NTEU was right to call the Agency on its claims and the Agency should have gotten the fair opportunity to rebut those claims in this case. In a true example of “fool me once shame on you, fool me twice shame on me”, I would hope that Agency and union advocates don’t give the Authority a second chance. It has lulled us into believing facts neither count nor will they be considered. It’s time to remind them of John Adams famous quote, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passions, they cannot alter the state of the facts and evidence”.

The above opinions, and there are some this time, are mine and do not necessarily represent those who publish them, employ me, or may comment on my writing.

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.