D.C. Circuit Reverses FLRA Again

In a case involving FLRA’s appropriate arrangement theory, abrogation theory and its new regulations on arbitration appeals, the DC Circuit Court of Appeals dealt the agency a sharp rebuke saying that it had issued a contrary ruling to its own prior decision on the same facts in the same Agency involving the same issue.

This case has a slew of complicated case facts involving a decision of a prior political administration (not Bush) to negotiate language getting the Patent and Trademark Office into the legally questionable area of adjusting pay.  I’ll try not to bog us down too much in that issue.  In essence, this case involves a prior decision of FLRA (pre the Ms. Pope & Co. majority) that the only appropriate arrangement an Agency has to bargain was one involving the exercise of a management right under 5 USC§7106(a).

Apparently, FLRA was hot to let the unions bargain arrangements covering any perceived inconvenience whether tied into management rights or not despite Chairperson Pope’s concurrence with the earlier decision.  I suspect another critical ingredient in FLRA’s decision was that the earlier case was decided using the now tanked (by FLRA) “excessive interference” test as opposed to the unions’ preferred scheme represented by FLRA’s “Abrogation Test”.

OPM defines these theories as follows:

EXCESSIVE INTERFERENCE.   A balancing test that the FLRA applies to proposals that are arrangements for employees adversely affected by the exercise of management’s rights in order to determine whether they are negotiable appropriate arrangements within the meaning of § 7106(b)(3). The test involves balancing the extent to which the proposal ameliorates anticipated adverse effects against the extent to which it places restrictions on the exercise of management’s rights. Compare with ABROGATION TEST.

ABROGATION TEST.  A test the Federal Labor Relations Authority (FLRA or Authority) formerly applied in determining whether an arbitration award enforcing a contract provision affecting management’s § 7106(a) rights is deficient. Under that test (which was in existence for 12 years), an award enforcing a contractual provision that is an “arrangement” for employees adversely affected by the exercise of management’s § 7106(a) rights would not be set aside unless it “abrogated” those rights–i.e., unless it left management no discretion at all with respect to the management right(s) at issue. For lead cases see37 FLRA Nos. 20, 67, 70, 103 and 38 FLRA Nos. 3 and 21.

Obviously, these definitions were written before the current FLRA killed “excessive Interference” and reinstituted “abrogation”.  They are still up on the OPM website.  Based on the court’s decision, OPM would be well advised to leave them up.

This case also got wrapped up in whether the Agency had argued collateral estoppel regarding the prior decision.  The Court was apparently disturbed by FLRA’s argument that it hadn’t.    I’m sure this claim was based on FLRA’s work avoidance regulations limiting arguments that may be made on appeal.

The Court said, “While it did not use the magic words “collateral estoppel,” PTO nonetheless argued the substance of a collateral estoppel defense in its exceptions to Award II.  Later in the same paragraph the court couldn’t help saying “(“[T]he arbitral proceedings and the Agency’s exceptions are rife with collateral estoppels implications. Both parties and the Arbitrator recognized the implications of the Authority’s prior decision and the Agency addressed the impact of that decision throughout its exceptions.” (internal citations omitted)). We do as well.”  Apparently, it was lost on FLRA’s Solicitor, who seems to need magic words to be spoken or perhaps yelled into her ear.

It appears clear the court was saying that the “abrogation test” is out because of the precedent set in the prior decision used “excessive interference” as the test.  I’m sure FLRA will claim this is a fact case specific to these facts and no others.  We’ll wait to see if in the next abrogation case that goes to the Circuit, it must again hold first year law classes for FLRA’s attorneys.

As always, the above is my opinion and doesn’t represent anyone else.  If it does represent anyone else’s opinion, I’m glad to hear it.

PTO v. FLRA 11-1019

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.