FLRA’s Attempt to Gut Agency Head Review Goes to Court

The statutory right of an agency head to review an agreement before it is implemented has been eliminated by the FLRA. The case is now going to court.

The Federal Labor Relations Authority (FLRA) issued a decision last February regarding Agency Head Review of contracts.  I covered the decision and Member Beck’s dissent in a prior article.

The issue affects the right of an Agency head under 5 USC § 7114(c) to review the legality of the specific language of a collective bargaining agreement made within the Agency prior to it becoming effective. The FLRA changed existing case law and maintains that the Agency Head is stuck with whatever was bargained within the Agency regardless of its legality. It calls this concept the “Abrogation Test.”

Up to now, FLRA applied what it termed its “Excessive Interference Test,” which allowed an Agency Head to disapprove a provision if it excessively interfered with the exercise of a management right.  The Agency, Treasury’s Bureau of Public Debt, appealed the decision and it is scheduled for argument December 8, 2011.  If you work in the District of Columbia, you might find it a real training experience to attend. Attendance information may be found at the Court’s website. If you attend, let me know how it went.

As anyone who reads recent FLRA decisions knows, the Agency has become politically driven and is engaged in an attempt to enhance Federal sector union bargaining rights beyond the intent of the existing statute.

FLRA Brief Says That It Is Not Responsible to the Court for Its Actions

The FLRA’s arrogance apparently knows no limits but you judge for yourself. What follows is an unedited direct quote from its brief:

“The Authority’s reasoned decision to adopt the abrogation standard when assessing whether agreed-upon provisions are “appropriate arrangements” under § 7106(b)(3) of the Statute does not subject the Authority to a heightened standard of review. See FCC v. Fox Television Stations, Inc., ___ U.S. ___, 129 S.Ct. 1800, 1810-11 (2009) (FCC); Dillmon v. NTSB, 588 F.3d 1085, 1089 (D.C. Cir. 2009) (Dillmon). To the contrary, an agency “is free to alter its past rulings and practices even in an adjudicatory setting.” Dillmon, 588 F.3d at 1089, quoting Airmark Corp. v. FAA, 758 F.2d 685, 691-92 (D.C. Cir. 1985). To be sure, an agency must display awareness that it is changing its position and provide an adequate explanation for its departure from its established precedent. Id. at 1090. But, it need not demonstrate to a court’s satisfaction that the reasons for the new policy are better than the reasons for the old one. FCC, 129 S.Ct. at 1811. Instead, it suffices “if the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better.” (My Emphasis)


Agency Brief Says FLRA Test “Simply Makes No Sense”

In its reply brief, the Agency represented by the Civil Division in the Department of Justice, lays out is case in a succinct manner:

“Under the “abrogation” standard, the same proposal submitted as an “appropriate arrangement” can be “contrary to law” when reviewed by an agency representative at the bargaining table but not “contrary to law” when reviewed by the agency head pursuant to 5 U.S.C. 7114(c)(2). This simply makes no sense. A proposal is either “contrary to law” or not, and a proposal that does not qualify as an appropriate arrangement under 5 U.S.C. 7106(b)(3) is “contrary to law.” Thus, if a proposal is unlawful at the bargaining table it is also unlawful — for the same reasons — when subject to agency head review.

The Authority contends that the “abrogation” standard is appropriate because of the need to defer to the parties’ bargaining choices made at the bargaining table. But deference to the parties’ choices at the bargaining table has nothing to do with whether a bargaining proposal is “contrary to law” or not. And, under the federal labor statute, agency head review exists precisely because the agency’s bargaining agents sometimes mistakenly agree to provisions that are “contrary to law.”

The Authority argues that AFGE, Local 2782 v. FLRA, 702 F.2d 1183 (D.C. Cir. 1983), supports its “abrogation” test. But Local 2782 held that Section 7106(b)(3) requires a balancing of union and management rights such that “appropriate arrangements” cannot “impinge * * * to an excessive degree” on management’s rights. 702 F.2d at 1188. “Abrogation” contains no such balancing; all proposals are lawful as long as they do not prevent management from acting at all.

“Abrogation” is also meaningless because, in the entire period when it was applied in the review of arbitral awards, no provision was ever declared unlawful under it. The Authority argues that the standard is not meaningless because then-Member Pope, in three concurring opinions, would have found that provisions that “excessively interfered” with management’s Section 7106(a) rights actually “abrogated” those rights. But those cases involved the “excessive interference” test, so quite obviously, the Pope concurrences do not rebut the fact that “abrogation” has never been found when the “abrogation” standard was in play.

Nor does the Authority’s argument rebut the fact that the standard protects management’s rights only in circumstances that have never arisen. The Authority suggests that the reason it has never found “abrogation” to have been met is explained by the competence of agency negotiators at the bargaining table. Not only does that argument fail to disprove our point, it goes too far. It suggests that nothing “contrary to law” ever gets past agency’s negotiators. But that theory is insupportable on its face because, inter alia, agency head review under Section 7114(c)(2) exists just because Congress expected negotiators to be fallible.”

Agency Head review is a basic statutory right in the labor relations statute designed to ensure that mistakes made at the bargaining table could be corrected. A less politically motivated FLRA would recognize that its purpose is essential. Unions have a similar, although no statutory protection, in the ratification process in which members can insure that the union team hasn’t gotten out of control. Any challenge to that concept would presumably be anathema to the politicos at FLRA. Agency Head Review is necessary to insure that local, lower level negotiators stay within the law but this has not been a concern for the FLRA.

You can read the briefs yourself by following these links:

As always, blame no one but me for any opinion you discern from the above.

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.