This week, the Federal Labor Relations Authority (FLRA) issued a milestone case reversing years of case law addressing what appears to be a fine point of law, but is, in fact, one with staggering implications for Federal Agencies.

The previous (Obama) administration was so caught up with making Federal employee unions happy that an executive order was issued giving those unions “pre-decisional involvement” in Agency decision making.

In addition, the Obama FLRA built a case history empowering those unions to halt just about every Agency action involving employees pending mandatory negotiation in some cases lasting years. The premise of that FLRA was that there must be a level playing field between the government and labor organizations representing its employees. Federal executives and managers became so averse to making change and intimidated by the political appointees’ desire to be the friend of the unions that many Agencies were frozen in time missing many opportunities for needed improvements.

The pre-existing case law presumed that virtually every workplace change affected employee conditions of employment and working conditions, which it interpreted as synonymous terms. So, for example, moving an employee’s work area from the fifth floor to the fourth or vice versa must be a negotiable condition of employment because, after all, it is a change.

The Decision

The new case, 70 FLRA No. 102 (April 30, 2018), involving Customs and AFGE, holds that the Congress used two different terms in the same provision and must have, therefore, intended that the terms had different intended meanings.

The critical statutory language is found at 5 U.S. Code §7103(a)(14) and states “conditions of employment” means 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—

  1. relating to political activities prohibited under subchapter III of chapter 73 of this title;
  2. relating to the classification of any position; or
  3. to the extent such matters are specifically provided for by Federal statute.

The phrases at issue are “conditions of employment” and “working conditions”. The FLRA, in its decision says that:

Our Statute requires that an agency must provide notice, and an opportunity to bargain, before it may change “conditions of employment.”  “Conditions of employment” are defined, in § 7103(a)(14), as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.”  Through a convoluted evolution, however, the Authority came to the erroneous conclusion that “there is no substantive difference between [the terms] ‘conditions of employment’ and ‘working conditions.’” That notion, however, defies both judicial and commonsense rules of definition and is “support[ed] [by nothing more] than the Authority’s own repetition of it.” It is imperative, therefore, that we take this opportunity to clarify that there is a distinction between those terms.

It is a basic canon of statutory interpretation that “Congress acts intentionally” when it “inclu[des] or exclu[des]” particular words in a statute Congress defined the term “conditions of employment” in § 7103(a)(14) as those “personnel policies, practices, and matters” which “affect[] working conditions.” Under accepted rules of statutory interpretation, two different terms used in the same context cannot mean the same thing and therefore must mean something different.  In the context of our Statute, the distinction between these two terms lies at the very foundation of differentiating between purported changes that are, and are not, subject to a duty to bargain.

To assert that the terms “conditions of employment” and “working conditions” mean the same thing is to engage in a type of circular reasoning that has been criticized by the United States Supreme Court. It is little different than trying to define a rock as a rock-like object or a cellular phone as a phone that is cellular.  It means nothing.

It is obvious to us that Congress acted intentionally in § 7103(a)(14) when it used the one to help define the other.  It is therefore imperative that we respect that distinction and define the differences for the labor-management relations community. (Any emphasis is FLRA’s.)

So, What’s the Difference?

FLRA went on in its decision to explain its rationale as follows:

It is obvious to us that Congress acted intentionally in § 7103(a)(14) when it used the one to help define the other.  It is therefore imperative that we respect that distinction and define the differences for the labor-management relations community.

The terms are related, but they are not synonymous.  On this point, the U.S. Supreme Court explained that while the term “conditions of employment” is susceptible to multiple interpretations, the term “working conditions,” as used in § 7103(a)(14), “more naturally refers . . . only to the ‘circumstances’ or ‘state of affairs’ attendant to one’s performance of a job.” In acknowledging the distinction between those terms, the Court cited with approval the U.S. Court of Appeals for the District of Columbia Circuit, which had earlier held that “working conditions” are “the day-to-day circumstances under which an employee performs his or her job.” (Again, any emphasis is FLRA’s.)

The Case

The Customs case involved duty changes for Customs inspectors concerning which vehicles they directed to an area conducting higher level of scrutiny (secondary inspection). What FLRA said next is what is really crucial:

First, the Authority has previously held that mere increases or decreases in normal duties do not constitute changes over which an agency must bargain.

Second, the memorandum did not change the nature of or the type of duties the officers performed.  In effect, the memorandum conveyed instructions from the division chief to his agents detailing how they were to perform inspections when it came to referring vehicles from the primary to secondary lane for additional scrutiny.  Supervisors have the responsibility, and must have the prerogative, to direct, redirect, and even adjust how employees perform their jobs. A supervisor does not have to negotiate with the union every time she adjusts or alters how employees will perform their duties.

Third, the directions contained in the memorandum did not change anything and they did not impact a condition of employment.  Both before and after the memorandum, the agents continued to perform vehicular inspections at either the primary or secondary inspection areas using the same techniques.

In sum, the Statute did not require CBP to bargain in these circumstances.

So What?

So, what this case apparently means is that this FLRA believes that to create a bargaining duty on a working condition change, the change in job duties must be more than or different from the existing scope of duties within a job or within duties related to a given employee’s job and affect those conditions of employment the statute defines as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions”.

So, may the Agency as it needs to, move duties around within a work day, work week, or other time period; may it change where, within a work environment, an employee performs them; or opt to move them around among employees in the same job? And all this without endless delay and interference by the union to bolster its power?

Appears so. This FLRA clearly understands the difficulty of managing unionized employees that the previous outfit ignored.

The Next Question

This case, in my humble (really) opinion begs the next question.

The above, while significant, leaves us to ask whether it portends a departure from another big union power tool accorded by the Obama FLRA case law that one may anticipate as it applies to 5 U.S. Code §7106(b)(3).

That provision provides an exception to the management rights clause of the law requiring bargaining on “appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials”. The Obama FLRA presumed that virtually any change had an “adverse impact”.

Will this FLRA hold that the existence of such adverse effect must be established by a union case by case to require an Agency to go to the table? If so, that would really level the playing field after years of tilt in the unions’ favor.

If this case is signaling case law changes we can expect, put on your seatbelts, cause it’ll be a bumpy ride for a while.

By the way, would anybody be surprised if FLRA field attorneys and regional counsel now vote in the OPM survey that the FLRA is a bad place to work like they did in the Bush administration when they disagreed with its labor relations policies? Sorry, couldn’t help saying it.

As always, if you detect an opinion above, I’m solely responsible for it.

Customs vs. AFGE Border Patrol Council by FedSmith Inc. on Scribd