Did FLRA Make a Sneaky Decision?

In a recent case, FLRA appears to play fast and loose with the statute to retain its ability to decide whether or not a union proposal was an “Appropriate Arrangement”. While the Authority found four proposals non-negotiable, it did so apparently to retain control of such outcomes rather than address the Agency’s argument that the proposals were permissive. For practitioners, it’s worth a read.

Recently the Federal Labor Relations Authority (FLRA) decided a Bureau of Prison’s case in which the Agency argued that four of the union’s proposals both violated an Agency’s right to determine its “internal security practices” under 5 USC 7106 (a)(1) and were only bargainable at the Agency’s election under 5 USC § 7106(b).

So Why is This Sneaky?

FLRA found the four proposals to violate an Agency right to determine internal security practices and not to constitute an appropriate arrangement.  It ignores, in the body of the decision, Prison’s argument that the proposals are only bargainable at the Agency’s election.  In footnotes, FLRA claims:

“Based on our decision, we find that it is unnecessary to address the Agency’s assertion that Proposal 1 affects its rights under § 7106(b)(1) of the Statute.  See NTEU,62 FLRA 267, 271, 272 & n.11 (2007) (NTEU II) (Chairman Cabaniss dissenting in part) (finding it unnecessary to address whether proposal excessively interfered with the agency’s right to determine the means of performing work after finding that the proposal affected the agency’s right to determine internal security practices and was not an appropriate arrangement).”

For the past two years, FLRA has been finding just about every union proposal violating a management right to be an appropriate arrangement and ordering the Agency to bargain.

This decision starkly avoids a crucial issue i.e., if the matter is permissive, then once an Agency decides not to bargain, FLRA has no say in the matter.  If it avoids addressing 5 USC § 7106 (b)(1), it gets to call the shot one way or the other.  Some might say I’m over reading the case because of past perceived FLRA shortcomings and downright wrongheaded thinking.  Maybe so, but as William Burroughs once said, “Sometimes paranoia’s just having all the facts.”

As always, any opinion expressed above is my responsibility.

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.