Mon, 07/06/2020
In both a major victory for labor rights and a well-deserved rebuke to the current, notoriously anti-union Federal Labor Relations Authority (“FLRA”), the U.S. Court of Appeals for the District of Columbia Circuit reversed an FLRA decision, on June 9, 2020, that had greatly reduced the types of workplace changes over which federal sector unions could negotiate.
The case arose after U.S. Customs and Border Protection in El Paso, Texas issued a memorandum in 2014 ordering its border patrol agents to engage in more frequent secondary screening procedures at a border patrol checkpoint, a decision that both removed discretion from agents, and changed the type and frequency of certain job duties. An arbitrator found that, under federal law, the Agency was required to negotiate over this change with the agents’ union, however, in 2018, in a convoluted, results-oriented decision, the FLRA reversed course and found that the Agency did not have to negotiate over the change. The Authority explained that, in its estimation, the change impacted only “working conditions” and not “conditions employment.” The FLRA claimed that only “conditions of employment” are negotiable and, because this change allegedly dealt only with “working conditions,” it was not negotiable. The FLRA’s confusing decision was a major departure from precedent, which the FLRA claimed had erroneously found the two terms to mean essentially the same thing.
The Union appealed to the DC Circuit, which found not only that the FLRA had failed to elucidate any sort of “reasoned decision making” for its departure from precedent, but also that the decision contradicted the statute setting out the rules for federal sector bargaining. The Federal Service Labor Management Relations Statute, provides that unions in the federal sector can negotiate over “conditions of employment,” which include, with certain exceptions, “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions” 5 U.S.C. §7103(a)(14). The DC Circuit found that the FLRA’s decision “provide[d] more questions than answers” and left agencies and unions with no functional ability to determine the supposed difference between a negotiable condition of employment and a nonnegotiable working condition. The Court, further, chastised the FLRA for failing to actually apply its own supposed negotiability standard to the facts, stating that, even if the FLRA’s new test for what is negotiable had a basis in the statute, the change initiated by the Agency in El Paso would still be negotiable.
The DC Circuit remanded the case to the FLRA for reconsideration consistent with the decision and a clear implication that the FLRA should find that the Agency committed an unfair labor practice by failing to bargain over the change with the Union. Since the current FLRA membership began issuing decision in 2018, it has repeatedly disregarded precedent and gone out of its way to reverse decisions in favor of unions. The DC Circuit’s decision is an important step toward reigning in the administrative agency and federal sector unions should rely on it when agencies disingenuously try to rely on the current FLRA’s decisions to claim that they do not have to negotiate over significant workplace changes.
