The new Federal Labor Relations Authority (FLRA) has its work cut out for it. In writing this, I’m making a few assumptions:
- Former Chair and minority member for most of his time at FLRA, Pat Pizzella made a number of dissents from the majority’s (Democrat members’) decisions. His dissents will guide, to some degree, the new majority members.
- The Obama FLRA sought to “elucidate” (read expand) the meaning of 5 U.S. Code Chapter 71 in such a way as to either expand union rights, level the playing field or broaden the scope of bargaining. The new majority is unlikely to share those objectives.
- The U.S. Circuit Court for the District of Columbia has repeatedly criticized the Obama FLRA for what it said were mistakes in the interpretation of the law or attempts to expand its authority beyond that envisioned in law. Here I’m talking about the Obama FLRA’s interpretation of laws and government-wide regulations outside its jurisdiction and as the court has found, outside its expertise. The new majority may seek to repair FLRA’s reputation with the court in its decisions.
- Many practitioners representing Agencies whether managers, specialists or counsel staff believe that the Obama FLRA has left Federal labor relations a train wreck of substantial proportion that will take years to fix. The new FLRA members may be open to hearing from those groups, silenced during the Obama years by political pressure.
I don’t have a crystal ball but do have a few contacts in government who have lived with the problems created by the Obama and Clinton FLRAs that make government more expensive, less responsive to change and harder to run. It wouldn’t surprise me if the new FLRA’s agenda took up the biggest of these problems.
Let’s look at them in the order of their importance (read harm to governance) and how this new FLRA might address them.
Impact and Implementation Bargaining (5 U.S. Code §7106(b)(3))
As a brief primer, the law at issue says “(b)Nothing in this section shall preclude any agency and any labor organization from negotiating… (3) appropriate arrangements or employees adversely affected by the exercise of any authority under this section by such management officials.”
The Obama FLRA, in essence, repeatedly found that any effect on an employee created an Agency obligation to bargain and that virtually any union proposed arrangement was “appropriate”. The effect of these rulings was to create an atmosphere where any change the union might oppose could become a major litigation (Unfair Labor Practice) battle, often lasting years before any implementation could take place.
Perhaps an even larger effect was the union strategy of connecting any change a manager wanted to make to other Agency initiatives, leveraging their demands in unrelated areas. This is not a membership protection issue but rather one of the projection of power by the union institutional leadership.
The General Counsel of the FLRA (also a political appointee) served as the unions’ agent in these matters by prosecuting any perceived violation of FLRA’s interpretation of the I&I duty to bargain created by FLRA’s case law. As proof of the above, the DC Circuit recently upbraided the FLRA for seeking to limit the Court’s “Covered By” doctrine which limits bargaining on matters addressed in a labor agreement.
The New FLRA may seek:
- to require that any (b)(3) obligation require a union showing of “adverse” effect on the bargaining unit and not just on one or a few employees.
- to craft a definition of “appropriate arrangement” that requires a substantial deference to the affected management right specified in 7106(a).
- to build a body of case law making the “Covered By” doctrine clear to those engaged in bargaining at all levels.
To make this work, the decisions should be properly addressed by the courts to lock them in as the proper interpretation of the law.
The Place of Law in the Arbitration Process
The state of Federal arbitration case law and FLRA regulation is that if an issue is not raised by a party to an arbitrator, it may not be raised on appeal (exceptions). In 2010, the Obama FLRA codified this idea in its regulations. Some might say, “oh well, you snooze, you lose”.
The real problem is infinitely more complex. Arbitrators are used to the private sector model in which the scope of a contract is the only authority an arbitrator has. For Federal sector, the problem is that the “grievance” definition in the law has been interpreted to cover anything that could happen to an employee. This has resulted in arbitrators interpreting Federal law and Agency regulations on a broad number of issues largely without limit.
Just as the Obama FLRA arrogated the meaning of law and regulation to itself without asking for an interpretation by that Agency with the authority to interpret that law, arbitrators do the same. A number of issues complicate this but the two most important, in MHO, are the obligation of an Agency to go on record with an interpretation of laws or regulation before the arbitrator to get an appeal at all and the ability of an arbitrator to craft an issue in such a way as to limit any challenge until the case has been decided.
Arbitrations are rarely litigated at the Agency headquarters level and those representing the Agency may or may not be Federal sector labor relations specialists steeped in the intricacies of case law currently numbering in excess of 40000 page by FLRA alone, not counting the courts. Advocates miss making arguments for lots of reasons including an arbitrator’s creation of issues.
There is a solution to all this that seems to make sense. An appeal of any decision that is inconsistent with Federal law or binding Agency regulation should always confer jurisdiction. Unlike the private sector, where a missed step by an advocate may cost the company money, in the Federal sector, a misstep can result in the violation of law or government-wide regulation. In other words, FLRA’s policy on this turns a blind eye to statutory or regulatory misapplication. Was that the intent of the Federal statute? I think not and hope the current FLRA agrees. The problem is in the 2010 regulation and is easily addressed.
A Sensible Scope of Bargaining
The new FLRA members also have an opportunity to address the statute as written. The management rights clause of the law states pretty clearly:
§ 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency—
(1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency; and
(2) in accordance with applicable laws–
(A) to hire, assign, direct, layoff, and retain employees in the agency, or to suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees;
(B) to assign work, to make determinations with respect to contracting out, and to determine the personnel by which agency operations shall be conducted;
(C) with respect to filling positions, to make selections for appointments from-
(i) among properly ranked and certified candidates for promotion; or
(ii) any other appropriate source; and
(D) to take whatever actions may be necessary to carry out the agency mission during emergencies. (My Emphasis)
In those 40,000 pages of FLRA decisions there are tortured analyses struggling with the meaning of, for example, of phrases such as “to determine the budget”. Now, I’m not an attorney, do not have a PHD in the study of the English language nor am I qualified, despite a Jesuit education, to argue how many angels might fit on the head of a pin but “don’t bargain on budget” appears a pretty clear meaning of this phrase. Pages of angst-filled self-examination on what the word budget might possibly mean could appear to an average taxpayer or anyone else, for that matter, as a complete waste of time and money. I am hoping the new FLRA appointees get out their Websters’ and go with the most common meaning i.e., “a plan for spending money”.
Now I do realize that in the case of the Federal labor statute, some interpretation may be necessary. OK, so it’s a “government plan for spending money.” Why suffer further? I remember cases finding that a union proposal was ok violating management’s rights was good unless it prevented the Agency from “acting at all”. Really? Of course, the last administration thought that employee engagement meant giving unions the right to weigh in on Agency decisions before they were made. I think a majority of taxpayers who vote might ask, “when did I vote in a union to help decide how government will operate?”
In the above is a lot to work on. Many believe official time is the most critical issue. I think official time can be fixed at a bargaining table addressing both the costs and effects of the matter. Others may believe there are issues I’ve left out. If so, raise them in the comments. I’d like to hear from folks that aren’t ranting ad nauseum about my anti-union proclivities. Get over it Bs & Gs, they’re opinions. And while I’m at it, they are mine and do not necessarily reflect other’s ideas on these issues.
BTW, I’m looking for folks who have Agency bargaining or labor relations training experience. Go to the author’s page here on FedSmith and let me have your contact info. Thanks. BG.