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Labor Authority Beats Back Agency Efforts to Narrow Bargaining Obligations

Since November, the agency that governs labor-management relations in the federal government declined half a dozen different requests for “policy statements” that would give management an advantage in talks with unions.

The board that governs labor-management relations in the federal government has denied a recent flurry of requests from agency managers to issue precedent-setting policy statements that would give them the upper hand in negotiations with unions. Although so far agencies have been unsuccessful, the spate of requests could be an indication that the Trump administration is exploring new fronts in its efforts to reduce the influence of unions in the federal sector.

Since last November, the Federal Labor Relations Authority board, which is made up of two Republican and one Democratic presidential appointees, has issued six unanimous decisions declining to issue statements of policy on a variety of bargaining issues. Five of those decisions responded to requests from federal agencies, while a sixth decision came from the National Right to Work Legal Defense Foundation, an anti-labor advocacy group.

In the most recent of these decisions, the Education and Agriculture departments jointly asked the FLRA to issue guidance clarifying whether the “conditions of employment” over which federal workers may bargain include all “working conditions” or a narrower category of personnel policies and practices. Although the FLRA issued a controversial decision last year making a legal distinction between “conditions of employment” and “working decisions,” the board declined to issue a general statement affirming that precedent, in part because it has been appealed.

“The guidances sought by the departments can more appropriately be resolved by a case in controversy and there is little likelihood that the issuance of an authority statement would prevent the proliferation of cases involving the same or similar question,” the board wrote. “Further, while the request summarized existing authority precedent on the distinction between conditions of employment and working conditions, the request’s citation to [that decision] did not acknowledge that that decision remains pending review before the U.S. Circuit Court of Appeals for the D.C. Circuit.”

In other requests, the Agriculture Department sought clarification over whether an expired union contract that has rolled over into a new term bars agencies from implementing governmentwide rules and regulations counter to the contract’s existing provisions, as well as to make changes to how the Federal Service Impasses Panel determines whether a union and agency have reached an impasse in negotiations.

The Veterans Affairs Department asked the FLRA to create a presumption that the “exercise of a management right” does not “adversely affect” employees, meaning a union would have to rebut that presumption before bargaining over the implementation of a new policy.

“The petitioner explains that, under its proposed standard, a labor organization could only rebut the presumption by presenting evidence—rather than merely asserting—that any proposal is a response ‘to actual adverse effects directly caused by the exercise of [a management right],” the FLRA wrote in its denial. “The petitioner posits that the authority’s adoption of such a requirement would permit agencies to exercise their management rights ‘immediately’ without bargaining.”

And the Office of Personnel Management unsuccessfully asked the FLRA to clarify whether agencies are required to bargain on a subject that is not already part of a union contract “during the term” of the contract. In its denial, the FLRA noted that the agency’s job is primarily to issue policy through the precedent established by individual cases, not general guidance.

“We note that the statute’s mandate that its obligations be interpreted ‘in a manner consistent with the requirement of an effective and efficient government’ dates from the statute’s enactment in 1979,” the board wrote. “While the recent issuance of [President Trump’s workforce executive orders] has returned this mandate to the federal labor community’s attention, there has not been an accompanying mandate for a wholesale revision of authority precedent.”

Prior to the recent flurry of policy statement requests, the most recent instance of the FLRA responding to such a petition dates back to 1995, according to the agency’s website. In that case, the FLRA general counsel sought clarification on the legal impacts of a 1993 executive order and a 1994 court decision. In that instance, the FLRA denied its general counsel’s request, and instead addressed the relevant issues in a specific dispute at the Veterans Affairs Department.

The Office of Management and Budget declined to comment on the record regarding agencies’ increased solicitation of the FLRA for policy guidance.