Circuit Court Slams FLRA Again, Vindicates Pizzella’s Dissents

The author discusses a recent case involving the FLRA which he says is the latest in a series that has done great damage to the labor relations program.

In May of 2015, the minority member of the Federal Labor Relations Authority (FLRA), Mr. Patrick Pizzella, dissented from the majority’s decision in a 2014 case (67 FLRA No. 128) that once again had the majority’s members interpreting another Agency’s law. This despite many reversals of its prior decisions on exactly those grounds.

This case involved a finding that an Air Force Base was obligated to bargain access for union-represented civilian employees to exchange privileges, a matter the Agency argued violated law. The Agency petitioned for reconsideration and FLRA denied the petition in 2015 (68 FLRA No. 92) Mr. Pizzella dissented again.

The DC Circuit Court of Appeals (the Court), in reversing FLRA, held that:

“The Federal Labor Relations Authority ordered the Air Force to bargain collectively with its civilian employees over access to an on-base shoppette—a gas station and convenience store that forms part of the military’s network of commissaries and exchanges. The Air Force challenges that decision, arguing, among other things, that the issue is not a proper subject of bargaining because Congress has given the military unfettered discretion to determine whether civilians may patronize commissaries and exchanges. For the reasons set forth below, we agree and grant the Air Force’s petition for review.”

Mr. Pizzella’s dissents look remarkably like the Court’s decision. He, unlike the majority members, has obviously been reading the Court’s prior decisions and taking them seriously.

Unbelievably, this issue has been going on since 2010 when Thomas Beck, Mr. Pizzella’s predecessor as minority member dissented in a case (64 FLRA No. 118) involving the same issues i.e., whether civilian employees have the right to bargain over exchange privileges at the same Air Force Base. (Also, somebody in Air Force or DOD should commend the advocates who had the courage and conviction to defend the law for the last 8 years until finally the Court stepped in and reversed an out of control majority at FLRA.)

This case is the latest in a series that establishes that this FLRA majority has done great damage the Federal labor program and may, indeed, have done it in. Federal unions have been encouraged by this administration and its appointees to go far beyond what the enabling legislation envisioned. This FLRA majority has been repeatedly reversed by a Circuit Court that virtually no one could call conservative. That court has repeatedly upbraided this majority to stop interpreting laws in which it has no expertise. We have, by congressional intent, a limited collective bargaining program for Federal employees. This FLRA majority has failed to recognize that repeatedly.

These members have found almost any management rights violation an “appropriate arrangement”; have sought to widen the scope of bargaining at every opportunity; have abetted the current situation in which any Agency change, no matter how minor, can be delayed for years by unions leveraging FLRA decisions to exert power over Agencies; and, used its decision-making authority to intimidate Agencies to avoid taking cases forward. I have seen this firsthand.

After January 20, 2017, Republicans will be in charge of three important houses of government. There is much chagrin on the Hill concerning Federal employees who have vast and complex job protections and perceived abuses by their unions of their role in representing those employees under law. Many believe change must come. The majority members of the current FLRA should realize that their extreme left wing policies and decisions have paved the way for whatever is coming. They were charged with being neutral and have failed at this charge. They were given power and abused it. As a result, I, for one, believe the pendulum swing this time will be substantial.

As always, these views are mine and do not represent people I work for, with or around.

Luke AFB v. FLRA (15-1208)

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.