FLRA Seeking to Emasculate Agency Head Review

The author discusses the potential harm a recent FLRA decision will do to collective bargaining.

In a recent decision involving NTEU and the Bureau of Public Debt, the Federal Labor Relations Authority (FLRA) attacked an Agency Head’s statutory authority to review a piece of contract language negotiated within the Agency. The law involved is in 5 USC 7105(c) and reads, in pertinent part:

“(1) An agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency…

In a truly amazing piece of language, FLRA ignores the statute and claims that the Agency Head’s review of an agreement is limited as follows:

In sum, although a particular proposal may be outside the duty to bargain because it is contrary to law, rule, or regulation, an agreed-upon contract provision is not contrary to law, rule, or regulation merely because, at the bargaining table, it was outside the duty to bargain.

The above is the critical quote of the decision. The fact that it is contradictory, silly and virtually unreadable on its face apparently didn’t stop the current FLRA politicos from saying it. What they are saying is that the local negotiators for the Agency have “abrogated” management’s rights by agreeing to illegal language and the Agency Head cannot review their agreement if they do so. Since the implementation of the Civil Service Reform act of 1978, that was the exact purpose of Agency Head review. The current Chair of the FLRA, never having worked anywhere else, may be forgiven for a lack of insight on how statutes or bargaining work but the other member, at least, should know better.

This is another blatant, politically driven concession to the Federal unions. Member Beck, in his dissent, uses some pretty strong words on the subject:

“My colleagues have chosen to jettison decades of precedent with respect to the standard by which we assess whether an agency head may, under § 7114(c)(2), reject a contract proposal that affects management’s rights. They have decided to do so based on an exercise in statutory interpretation that is so strained as to be untenable. Further, they have created an inconsistency in approach that defies common sense; under their new regime, the same proposal that is legally invalid if it “excessively interferes” with management rights at the bargaining table magically becomes valid and binding when it lands on the agency head’s desk.”

And later in the dissent, Member Beck addressed the practical effect of the decision:

“Of course, the practical effect of the Majority’s new regime will be to impede normal labor relations and to slow the bargaining process. Knowing that they may no longer review new contract provisions with an eye toward preserving their statutory management rights, agency heads are likely to delegate less authority to their labor relations officials in the field and reserve to themselves much more active and hands-on supervision of collective bargaining. My colleagues in the Majority are telling agency heads that the only meaningful review they now have is a review that occurs before — not after — preliminary agreement is reached at the bargaining table. As a consequence, each proposal that might affect management rights will languish in limbo until it is transmitted to, and reviewed by, the agency head — an added step that is likely to increase substantially the time necessary to reach agreement on, or to resolve disagreements about, specific proposals.

 This state of affairs can hardly be what Congress intended when it sought to promote “effective and efficient” federal-sector labor relations (§ 7101(b)) and “avoid unnecessary delays” in collective bargaining. § 7114(b)(3). As the D.C. Circuit has observed:

Congress might have limited the head of the agency’s review opportunity to the negotiation phase, but it apparently was unwilling to impose a continuous burden on the head of the agency to review each and every proposal as it arose in the course of day-to-day bargaining

AFGE v. FLRA, 778 F.2d at 858. My colleagues in the Majority have now decided to impose on agency heads precisely the burden that Congress sought to avoid.”

One could go on and on analyzing FLRA’s specific arguments but, in the end, it all comes down to politics. Shame on you. You have absolutely destroyed any semblance of neutrality the FLRA may have enjoyed. In the last administration, a liberal court reversed the establishment of poorly constructed alternate labor relations systems. If there is a change of power, I, for one, don’t believe the FLRA will survive. It has failed to learn a lesson of history that an abuse of power can only be rectified by the denial of power.

As always, the above is my opinion and mine alone.

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.