EO Decision Provides a Look into Judge’s Far-Left Philosophy of Collective Bargaining

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By on October 6, 2018 in Human Resources with 0 Comments

wooden judge's gavel sitting on grey floor against a turquoise blue background

FedSmith has reported on DC District Court Judge Ketanji Brown Jackson’s decision on President Trump’s Executive Orders addressing labor relations in his administration. The decision offers a theory of collective bargaining for the federal government relying more on a somewhat extreme left-wing view of the process than either that envisioned by the governing statute, 40 years of Federal sector negotiations, or any semblance of common sense.

Let’s look at what she has in mind.

Permissive Areas of Bargaining

5 U.S. Code 7106 states specifically:

“(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;” (My Emphasis)

In her decision, Judge Jackson says,

…an attempt to limit the negotiability of the areas of bargaining that the FSLMRS deems permissive (i.e., those over which the agency has discretion to bargain under section 7106(b)(1)) is not merely an innocuous exercise of management prerogatives; rather, it eviscerates the statutory right of employees to have an opportunity to discuss certain matters, and also seemingly sheds light on the agency’s motivations for slashing otherwise potentially negotiable topics, and as such, is cause for great concern.

This is part of the clause in the statute titled “Management Rights”.

So, Judge Jackson in saying that any Agency election not to bargain on matters “eviscerates” employee bargaining rights, obviously begs the question – may no Agency official invoke (B)(1)? If so, by all the case law and the clear wording of the statute, she’s dead wrong.

This then moves us to whether the Judge can interfere with specific directions of a President to his administration. The applicable Executive Order instructs Agency managers to exercise their statutory right to refuse to bargain on these very specific and limited areas. So, the judge appears to be saying that an Agency head or other manager has authority under the Federal labor statute to ignore a management directive of the President.

This moves us on to the more ludicrous, if possible, concept that management cannot direct the positions taken by a bargaining team.

An Agency May Not Direct Its Bargaining Team

Judge Jackson addresses the ability of an Agency to direct its negotiators. She says:

One final takeaway bears mentioning: we have learned from the FLRA that an executive branch official can be found to have “instruct[ed]” agency negotiators in a manner that “preclude[s] the existence of the prerequisite good faith necessary under the” FSLMRS. Fed. Aviation Admin. Nw. Mountain Region Seattle, WA, 14 F.L.R.A. at 672. This occurs most obviously when the instruction prevents the negotiator from “approach[ing] the Union with [an] open mind[.]” Id. In other words, commands that are likely to cause agency representatives to pursue a certain outcome with such dogged determination that the agency negotiator effectively “come[s] to the bargaining table with a closed mind[,]” impinge upon the duty to act in good faith.

The case the judge cites, FAA (above), has nothing to do with the legitimate directions to subordinate managers. In that very complicated and confused case, the Agency was in a dispute over the continuation of working conditions under a previous contract with a new incumbent union and decided a policy at the national level that its negotiators were sent in to enforce. The issue of the resulting unfair labor practice was not whether negotiators could be instructed but rather whether they could be instructed to violate the law.

Later in the case, she says:

This Court has no doubt that the net effect of these provisions is to put an entire hand on the scale with respect to certain negotiable provisions of a collective bargaining agreement before negotiations even begin (never mind the thumb), and to require agency negotiators to cut off any digits that union representatives might seek to extend in the hopes of reaching an agreement on these particular issues. In effect, agency negotiators are told that they must enter into the negotiating arena wielding predetermined goals, and must be prepared to fight to the death on these prescribed issues, in a manner that, in this Court’s view, is not meaningfully susceptible to the open “give and take” negotiating process that the duty to bargain in good faith anticipates.

Federal Sector Bargaining is Not What this Decision Addresses

The judge, in this case, has really missed the point of bargaining, particularly Federal sector bargaining.

Saying “NO” is not bad faith bargaining. Deciding the range of possible agreement is NEVER the role of an Agency negotiating team.

What an Agency puts on the table on behalf of the administration, and by extension, the taxpayer, is absolutely the prerogative of the President and his administration. The wrong-headed idea that both parties send autonomous representatives to negotiate for them and live with whatever deal they strike is literally foolish.

We saw this advocated by some prior administrations and it resulted in disastrous negotiations and resulting agreements. Look at the Veterans Affairs agreement and talk to the supervisors there. Anyone who has represented management at a bargaining table has seen the union come to the table with absolute “model language” demands that even they admit they have no discretion to negotiate. 

The idea that there is a parity between government management and the unions representing parts of the workforce, as the judge says in her decision, reflects the self-important puffery evidenced by most of the union leadership in government.

The first duty of the government is to the interests of the taxpayer—not a labor union. This President is trying to get a handle on expanding union power advocated by the previous administration’s appointees at the Federal Labor Relations Authority and other Agencies. Let’s get the pendulum at least back to the middle.

Any opinion expressed above is mine and mine alone.

© 2019 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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