The Federal Labor Relations Authority (FLRA) has recently issued a decision on several cases designed to create a more efficient government while also recognizing the right of a union to negotiate with agencies on conditions of employment.
The issue of topics open to bargaining between a union and an agency has generated innumerable case decisions over the past 40 years. This latest FLRA decision is an attempt to avoid agencies having to negotiate minor issues with a union while preserving the right of federal employee unions to bargain on substantive issues.
During the Clinton administration, the FLRA adopted a test referred to as a de minimus standard. In other words, there was an obligation for agencies to bargain on issues that were important enough to rise above a topic so trivial it was de minimus.
In the federal government’s labor relations program, minor issues can become important. In part, this is due to the fact that bigger and more important issues are not open to bargaining. Salaries and benefits, for example, are not usually open to negotiation in most federal agencies.
Grinding Government to a Halt
As a result, bargaining negotiations can become embroiled in minor or de minimus issues. An FLRA Member, quoted in the latest FLRA decision, wrote at the time the de minimis standard was adopted that he embraced the new standard only to the extent that “de minimis change” was defined as a “change which does not have a substantive adverse effect upon unit employees” and only when it would not impact management’s ability “to carry out [its] day-to-day operations.”
Bargaining under the federal statute is limited. In the view of the FLRA in its 1985 decision (and quoted in the decision on which this article is based , limits were designed to “unduly impede the exercise of a management right under the Statute,” and cautioned that “[d]ecisions are made daily by every level of management, and if bargaining were required on each and every decision, Government would grind to a halt.”
The reality of using the de minimis standard has eliminated limitations on bargaining minor issues. As a result of this expansion, the FLRA concluded:
Because the Authority has effectively extended the bargaining obligation under the de minimis standard to conclude that a matter triggers an agency’s duty to bargain whenever management has made any decision, no matter how small or trivial, we agree with Petitioners that the application of the de minimis test has “negatively impacted labor-management relations.” In our view, because the de minimis test has been drained of any determinative meaning, it is now incumbent on us to reexamine and clarify when management‑initiated changes have a sufficiently significant impact on conditions of employment to require bargaining.
Prior to passage of the federal labor relations statute, President Kennedy issued an Executive Order creating a labor relations program in the federal government. Under the Kennedy Order, a “substantive impact” policy was adopted in determining what subjects were open to negotiation. The “substantial impact standard” was originally followed by the FLRA.
Several decades ago, the FLRA wrote in a decision that it was not adopting the “substantial impact” standard used under the Executive Order. In its most recent decision, the FLRA wrote that there was no explanation given for rejecting the original standard, and previous decisions never addressed why a new standard other than “substantial impact” was necessary.
Decision of the FLRA on Bargaining
To clarify the standard to be used and to try to minimize bargaining on trivial issues in government, the FLRA has now concluded:
Because the Authority never provided a rationale for departing from the substantial impact standard (which was applied under EO 11,491) and because the de minimis standard is inconsistent with the purposes of the Statute, the Authority finds that a substantial‑impact test is the appropriate means for determining whether a change to a condition of employment is significant enough to trigger a duty to bargain. Specifically, an agency will not be required to bargain over a change to a condition of employment unless the change is determined to have a substantial impact on a condition of employment.
Federal agencies will appreciate this new approach. The restriction to limit bargaining to substantive issues only will place fewer roadblocks in the way of agencies working to accomplish their missions.
Unions will not respond well to the decisions for the same reasons. The recent policy approach will limit the power of unions within agencies.
Having the power to delay implementing agency decisions provides the unions with a greater ability to achieve their objectives. The bargaining process, even if addressing trivial issues, can delay the implementation of decisions for a long time. No doubt, unions will be seeking to overturn or minimize the impact of the FLRA’s decisions in a variety of legal forums. That is what has already occurred with legal challenges to the Executive Orders on labor relations issued by President Trump in 2018.
This approach by the unions is reflected in the reaction of AFGE to these new FLRA decisions in a press release:
President Trump has packed the FLRA with union-busting appointees who continue to chip away at workers’ rights on the job. These sham decisions further his agenda of eroding the rights of unionized workers to the point of nonexistence and underscore the need for change in November. We will be pursuing all legal options to challenge these decisions.
The FLRA under the current administration has worked to streamline some of the procedures that have built up in recent decades. This decision has the potential to eliminate time spent on trivia. Unions will vigorously oppose any limitations on their ability to influence agency actions. Their real hope is to have the Democrats control the White House and the Senate and, in return for their money and effort, they will seek a reinstatement of the regulations and processes that have been eliminated.