It’s Time That FLRA Should Tell Us Some Things

June 21, 2017 11:33 AM , Updated June 26, 2017 1:17 PM
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We have watched an ideologically biased Federal Labor Relations Authority (FLRA) destroy its reputation as a neutral body over the last eight years. It’s credibility with Agency representatives is not zero but a number way so far on the negative side as to be unmeasurable.

Without ever conducting a hearing, it routinely determined union alleged facts to be true and management claims to either never having been made or as mere assertions. Of course they were mere assertions, for the last eight years FLRA has repeatedly ruled on matters with absolutely no facts before them except those intuited from the briefs of the parties.

I thought lawyers knew that briefs were arguments but maybe not. In negotiability cases, for example, they have found arrangements to be almost always appropriate, with no required showing of adverse effect on the employees involved, despite an unequivocal requirement of the statute to do just that. I must say that now Acting Chairman Pizzella has stood up for common sense as the minority member since 2013. I can’t imagine how he could keep a sense of humor and that’s a compliment.

Ludicrous Decisions

Toward the end of their rule, there is a really amazing case involving the U.S. Passport Service in which FLRA’s majority gave the union carte blanche to rewrite the Agency’s passport processing manual. The following is FLRA’s rationale for finding the union’s proposal an appropriate arrangement:

The record demonstrates that any burden on management’s rights would be mitigated because the proposal would not limit all adjudication procedures involving minor applicants’ Social Security numbers.  Rather, the proposal only limits those procedures where the outcome is already determined by other Foreign Affairs Manual language on procedures for minors.  In fact, the Agency acknowledges that it currently does not require specialists to conduct “some [SSA] security checks” for minors that “return no results[,] or records that would not be useful[,] for minor applicants.” Moreover, as discussed above, the proposal would not allow specialists to disregard any steps that the Agency in a Manual section requires them to follow, unless the Agency in another Manual section determines, essentially, that those steps are not necessary.  Balancing the benefits to specialists and the burdens on the Agency’s exercise of its management rights, we find that Proposal 3 does not excessively interfere with management’s rights.  Therefore, we find that Proposal 3 is within the duty to bargain as an appropriate arrangement under § 7106(b)(3).

Really, what did the majority balance this on? I think they meant because the union says so. There is no other way to see their rationale.

This FLRA frequently was overturned for interpreting another Agency’s statute without asking for its opinion. In this case they’re interpreting the Foreign Affairs Manual of the U.S. Passport Agency without any clue as to its intent or meaning than what a union might claim, not prove, might “benefit” an employee, not adversely affect, which is what the Federal labor statute actually says. See 5 USC 7106 which says:

(b) Nothing in this section shall preclude any agency and any labor organization from negotiating—

(1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work;

(2) procedures which management officials of the agency will observe in exercising any authority under this section; or

(3) appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials.

Isn’t It Time for an Accounting?

In providing information, isn’t it time to see what’s been going on at this Agency? How about a report that addresses:

  1. Since 2009, how many union proposals were found to be “appropriate arrangements” versus how many have not?
  2. How many decisions were appealed to a circuit or the Supreme Court and what is the FLRA’s track record i.e., sustained or reversed? (They used to do this before it didn’t look so good.)
  3. How many times has the FLRA reversed the findings of an administrative law judge decision favorable to an Agency?
  4. How many times has the FLRA found a proposed bargaining unit appropriate despite an Agency objection?
  5. How many times has FLRA ruled a position be included versus excluded in a unit determination case?
  6. With regard to negotiability, what percentage of the proposals decided involved a union institutional right such as official time, facilities and services or process issue, etc. versus a proposal providing a bargaining unit employee an individual benefit?
  7. How many Federal Service Impasse Panel decisions involved proposals providing union institutional rights and the percentage versus those involving a unit employee benefit?
  8. How many unfair labor practice filings were made by unions, individual employees and Agencies?
  9. What percentage of the union filings involved a union institutional claim and what were the subjects of the top ten claims made?
  10. How many arbitration exceptions were denied because an Agency did not make an argument to the arbitrator despite a claim on appeal that the decision violated a law or government-wide regulation?

None of the above have ever been the subject of an FLRA self-examination. 5 U.S. Code § 7104 (e) states: The Authority shall make an annual report to the President for transmittal to the Congress which shall include information as to the cases it has heard and the decisions it has rendered.

Isn’t it time the FLRA offered such information in a report to the President rather than or in addition to mere case activity information? While it might be nice for bean counters and Hill budget weenies to see how many cases were processed in how much time, shouldn’t a report finally focus on the substance of outcomes for a change?

Maybe Put the FLRA IG to Work

I’d like to invite one and all to take a peek at what the FLRA IG does versus the IG at the Department of Transportation, for example. See FLRA IG Webpage. See DOT IG Webpage.

I’m willing to bet virtually all I own that DOT and FAA, in particular, would love having an FLRA-type IG whose big deal review is an audit of charge card use by people making an average of GS-14 or so, as opposed to an audit of FAA’s Oversight of Air Carrier Maintenance Programs. Not once in 36 years has there been an internal review at FLRA on the substance of their decisions and whether those decisions were accomplishing what the law requires or critical of those overturned by the courts as simply being wrong or wasting taxpayer funds.

Always, the above represents my opinion and not my employer’s, FedSmith’s nor certainly that of any Federal sector union.

In reading the comments on my articles, I admit a certain surprised amusement at being characterized as a hater while trying to be an analyst with a different take.

Also interesting to me is that these same commenters usually call me by my last name (like it was a bad word) and rarely, if ever, address the validity of any point specifically advanced in an article. I try to provide another view of events to that commonly advanced. One should also keep in mind that, unlike union advocates, government employees representing an Agency in this field are severely limited in what they may say in a public forum. Me not so much and it appears some find that more than mildly annoying and others, I hope, at least mildly amusing.

Dana Carvey (of all people) said: “I think free speech is probably the coolest thing we have in this country, and again, you can label it hate speech and dismiss it, and then you’re allowed to censor it.”

© 2020 Bob Gilson. All rights reserved. This article may not be reproduced without express written consent from Bob Gilson.

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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.

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