What’s the Law Say?
5 U.S. Code § 7106(a) sets out management’s rights under labor law applicable to most of the Federal sector. It goes on to say at (b) “Nothing in this section shall preclude any agency and any labor organization from negotiating—(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.”
What’s the Authority Say?
Basically, the Federal Labor Relation’s (FLRA’s) current position appears to be that it’s appropriate unless it’s not. According to FLRA to be Appropriate, a Proposal:
- Must deal with adverse effects of a management action
- “(M)ust identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management’s rights and how those effects are adverse.”
- Must be “tailored” to deal with the reasonably foreseeable harm that will befall specific employees.
FLRA has also outlined what’s clearly not appropriate. That includes:
- Statutory Mandates
- Prevention from Acting at All
- Excessive Interference w/Mgmt Right
What is less clear is the effect on the above of 5 U.S. Code §7106 (b)(1) Determinations and Conflicts with Government-wide Regulations. FLRA appears to seek to avoid addressing (b)(1) arguments. As I have said before, I think former is because (b)(1) trumps FLRA’s decision-making authority and the latter because FLRA never asks the controlling Agency its views instead interpreting the reg on its own.
FLRA’s apparent view is that what makes a proposal appropriate is a balancing test of the arguments. It says: “The Authority makes this determination by weighing “the competing practical needs of employees and managers” to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal’s burden on the exercise of the management right or rights involved. ” (See 67 FLRA No. 21 12/20/2012). It also says that If the union’s asserted benefits to employees don’t outweigh the burden that the proposal would place on management, the proposal is not an appropriate arrangement and need not be negotiated.
The FLRA claims the union has an actual burden in this process (amazing, doncha think!) claiming the union’s burden to establish that a proposal:
- Specifically identifies an appropriate arrangement.
- Must be reasonably foreseeable and applicable to identifiable employees.
- If a portion of a proposal, must be readily separable from the remainder of the proposal.
Agency Rebuttal of this claim appears limited to either a scope of bargaining claim or the appeal of your argument to the Authority members.
Where Are the Courts on This?
The D.C. Circuit tries to stay out of Federal Labor Relations when it can. It says “For purposes of identifying our standard of review, the court has differentiated between the FLRA’s interpretations of its organic statute and interpretations of a non-organic statute, where both are at issue.” (See Ass’n of Civilian Technicians v. FLRA, 269 F.3d 1119, 1121 (D.C. Cir. 2001)). It has also held that it “owe[s] no deference to the FLRA’s statutory interpretation where it has endeavored to ‘reconcile its organic statute . . . with a[nother] statute . . . not within its area of expertise.’” (See DVA v. FLRA, 9 F.3d 123, 126 (D.C. Cir. 1993)
Two issues have not made it into the courts. First, is an agency entitled to “deference” when it makes a claim within its area of expertise? Second, would a different outcome result from an argument based on evidence?
Currently, the courts review only FLRA’s assertion that it has weighed the various arguments to arrive at a determination. My question in all this is whether a different outcome might result from an agency claim that FLRA either refused to consider offered evidence or gave it insufficient weight in its balancing determination? After all, how does one weigh an argument that has no facts to support it? There is an old lawyer saw that when the law is on your side, you argue the law; when the facts are on your side you argue the facts; and when neither favor you, you simply argue. Not a single determination by the Obama FLRA that an Agency must concede a statutory right has been based on a single fact. Around 1850 years ago, Marcus Aurelius said “Everything we hear is an opinion, not a fact. Everything we see is a perspective, not the truth.”
Time for a New Approach?
So how does a party get FLRA to consider facts? Easy to say, harder to do. You can ask for a hearing, explaining the need. Your request will likely be denied. If they allow the hearing, put on witnesses to build the evidentiary record vis a vis an inappropriate arrangement. You are then in position to argue the FACTS. If you can’t get a hearing, attach evidence to the record and remember to do it right! Include sworn statements, reports, studies, pictures, videos, etc. In other words, whatever you’d introduce at a hearing.
If the FLRA turns down your request and rules without considering the evidence you offered, I have faith that the D.C. Circuit will consider that grounds for either reconsideration or reversal. In any case, you will have lost before FLRA, so what’s to lose before the circuit?
What Arguments Can An Agency Make?
Websters Defines Appropriate as: “right or suited for some purpose or situation”. Arguably, it isn’t right if:
- It’s Not Workable
- It’s Too Complicated
- It’s Difficult to Apply
- It Costs Too Much to Implement
- It Costs Too Much to Administer
- It Can’t Be Proved Necessary
- It Creates a Procedure Inconsistent with Operational Need
- What Arguments Can An Agency Make
- Arguably, It Isn’t Right If: (Continued)
- It Requires Extensive Training to Implement/Manage
- It Has an Adverse Organizational Impact
- It Adds Unnecessary Work for the Supervisor
- It Creates an Inflexible Standard
- It Gives Preference/More Favorable Treatment Over Non-Unit People
- It Negatively Impacts Customer service
- It Impacts Productivity
- It Differs from Other Agreements W/I Agency
- The Language is Unclear or Lacks Specificity
The same kind of arguments used to assert that an arrangement is/is not appropriate may be used before the Federal Service Impasses Panel to assert a claim.
Some Simple Advice
- Analyze the Union’s Proposal
- Identify the Problems
- Check All Other Negotiability Arguments
- If It Violates 5 U.S. Code § 7106(a):
- Decide Whether to argue (b)(1)
- Or That It is an Inappropriate Arrangement
- If So, Then:
- Present the Facts
- Argue the Facts
- Appeal an Adverse Decision
FLRA would be hard pressed to deny the submission of evidence to support your claim. A court might find their doing that an arbitrary and capricious ignoring of material facts in favor of unsupported argument. President Obama said “Part of the reason that our politics seems so tough right now and facts and science and argument does not seem to be winning the day all the time is because we’re hardwired not to always think clearly when we’re scared. And the country’s scared.” Perhaps the FLRA should listen to the President and consider some facts for a change. I’m certainly scared by their lack of interest in facts and the resulting bad decisions.
I’m solely responsible for any opinion you find in the above.