In late August, the National Treasury Employees Union joined with its sometime rival, the American Federation of Government Employees, to file a friend-of-the-court brief asking a federal appeals court to overturn a Federal Labor Relations Authority ruling that gives agency managers broader authority to decide which workplace issues are significant enough to require collective bargaining with unions.
The FLRA case, decided earlier this year, involved one of those issues that managers touch at their peril: parking. It started in October 1999, when the Social Security Administration's Office of Hearings and Appeals in Charleston, S.C., moved to a new facility. All employees got free nonreserved parking in the ramp at the facili-ty. But some slots were reserved for certain categories of workers, including six for administrative law judges.
Agency officials later decided to cut the number of reserved slots for judges to two, since nonreserved parking was plentiful. In fact, it later turned out the judges rarely used the two reserved spaces other than to load and unload files from their cars.
If you can't imagine how a dispute would arise from this situation, then you don't know much about federal labor relations. The Association of Administrative Law Judges of the International Federation of Professional and Technical Engineers filed a formal complaint against agency officials, charging that they had violated the Federal Service Labor-Management Relations Statute by unilaterally reducing the number of reserved spaces.
And, it turns out, under a quirk in federal labor law, the union had a point. Agencies can make a wide range of decisions under "reserved management rights" that are not subject to collective bargaining. In such situations, unions can only bargain over the procedures used to implement a decision-and only, the FLRA notes, "if the resulting change has more than a de minimis effect on conditions of employment."
But when an agency changes employment conditions without exercising one of the reserved management rights, it's open season. And deciding about parking conditions, it turns out, is not a reserved right. So the union, not management, gets to decide whether it will be bargained over.
Charleston SSA officials responded to the complaint by asking the FLRA to apply the de minimis standard to nonreserved rights cases, too-noting, for good measure, that complaining about a change in a few parking signs that has no real effect on the availability of spaces "screams out as the epitome of a de minimis case." On a 2-1 vote, the FLRA bought that argument.
This, NTEU and AFGE claim, will "seriously undercut and narrow collective bargaining in the federal sector." But judging from the example NTEU President Colleen Kelley used to attack the FLRA decision, that may not be such a bad thing. She described an instance in which Internal Revenue Service managers at a Midwestern office notified employees that because new carpeting was to be installed, they would need to be relocated for a few days.
"Were this change to be considered de minimis," Kelley said, "the employees valuable practical insight on safeguarding the files entrusted to their care could be ignored, with serious potential consequences for both employees and taxpayers."
Now certainly, managers who don't get employees' input before making decisions like this aren't very smart. But the notion that managers should have to conduct formal collective bargaining sessions every time they need to shift a few people around to install some carpeting-or to make trivial changes in parking arrangements-is absurd.
If the FLRA gets its way, they won't have to. Score one for managers, right? Don't bet on it. NTEU's press release ends with a not-so-veiled threat from Kelley that the FLRA decision, if allowed to stand, will lead to "an inevitable decrease in collective bargaining accompanied by an increase in litigation." In other words, we'll see you in court every time you try to exercise this right.
I remember back in 1991 sitting with John Gage, now AFGE president and then head of its local at SSA headquarters in Baltimore, as he proudly explained how union officials challenged management at every opportunity. "We bargain every time they turn the lights out," Gage said. It seems that little has changed, and that's sad.