Court of Appeals Overturns FLRA on Bargaining Issue

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The District of Columbia Court of Appeals has overturned a decision of the Federal Labor Relations Authority (FLRA) that placed restrictions on the scope of bargaining in the federal government.

Union Grievance Filed Over Change

In this case, Local 1929 of AFGE filed a grievance on behalf of Customs and Border Patrol (CBP) agents claiming CBP did not notify and negotiate with the union before issuing the Memo. After an arbitrator found in favor of the AFGE, the Federal Labor Relations Authority (Authority) set aside the arbitrator’s award, concluding that the Memo did not constitute a change over which the CBP must bargain.

The memo that was distributed to its agents regarded changing vehicle inspection procedures at the El Paso, Texas border checkpoint.

The Arbitrator’s Decision

The arbitrator agreed with AFGE, concluding that the agency changed a condition of employment by issuing the Memo and therefore violated the Labor Relations Statute by not notifying and negotiating with the Union.

The arbitrator concluded that the Memo changed the agents’ duties by reducing the primary area under agents’ discretion to decide who to send to the second area of inspection and potentially requiring them to input more data for referred vehicles into their databases.

The arbitrator also found that the Memo raised safety concerns for secondary area agents who would likely have to manage an increase in traffic, people, and inspections.

FLRA Ruling on Appeal

The agency filed an appeal of the arbitrator’s decision and the FLRA agreed with the agency that the arbitrator’s decision was incorrect. There were three main reasons for the FLRA’s decision that no bargaining was necessary.

  1. Previous FLRA decisions “held that mere increases or decreases in normal duties do not constitute changes over which an agency must bargain,”
  2. the Memo “did not change the nature of or the type of duties the officers performed,” and
  3. “the directions contained in the [Memo] did not change anything and they did not impact a condition of employment.”

Decision by the Court

The Court did not agree with the FLRA. It found:

The FLRA did not reasonably explain its departure from precedent and its decision denying the AFGE’s bargaining request. Specifically, it failed to explain how its decision comports with the express language of 5 U.S.C. § 7103(a)(14). The Authority characterizes its decision as clarifying the terms of the Statute but its rationale provides more questions than answers. Its order, then, is arbitrary and capricious.

The Labor Relations Statute defines conditions of employment as:

  • “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters—
  • (A) relating to political activities prohibited under subchapter III of chapter 73 of this title; (B) relating to the classification of any position; or
  • (C) to the extent such matters are specifically provided for by Federal statute.

In effect, if there is a change in these areas, bargaining with the union will generally be required.

According the the Court, it decided to overturn the FLRA’s decision because:

Agencies reading El Paso I are left wondering how the FLRA reached its decision that the CBP was free to issue the Memo without bargaining in light of the language in the Labor Relations Statute and so are we. Was it because the Memo did not affect working conditions? Was it because the Memo was not a personnel policy, practice or matter? Was it because of some other rule or exception? An agency decision that fails to answer such basic questions is not the product of “reasoned decision making.”

The case was remanded to the FLRA for “further proceedings consistent with this opinion.

AFGE v FLRA, No. 19-1069, J…

© 2020 Ralph R. Smith. All rights reserved. This article may not be reproduced without express written consent from Ralph R. Smith.

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About the Author

Ralph Smith has several decades of experience working with federal human resources issues. He has written extensively on a full range of human resources topics in books and newsletters and is a co-founder of two companies and several newsletters on federal human resources. Follow Ralph on Twitter: @RalphSmith47

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