Federal Labor Relations Authority Case Law Update Denver Regional Office
Recent Authority Decisions Bars to ULP Charges and Grievances Time Limitations to File ULP Charges Conditions of Employment Past Practices FLRA Review of Arbitration Awards
Bars to ULP Charges and Grievances 5 U.S.C. 7116(d)
5 U.S.C. 7116(d) Issues which can properly be raised under an appeals procedure may not be raised as unfair labor practices prohibited under this section. Except for matters wherein, under section 7121 (e) and (f) of this title, an employee has an option of using the negotiated grievance procedure or an appeals procedure, issues which can be raised under a grievance procedure may, at the discretion of the aggrieved party, be raised under the grievance procedure or as an unfair labor practice under this section, but not under both procedures. (Emphasis added.)
70 FLRA No. 104 United States Dep t of the Navy Navy Region Mid-Atlantic, Norfolk, Va. and International Brotherhood of Police Officers Local 800
70 FLRA No. 104 2012: Union filed three ULP charges alleging Agency violated Section 7116(a)(5) of the Statute when it: refused to provide the Union with a list of changes to BUEs training requirements, failed to meet with the Union to discuss changes, and refused to designate someone with authority to bargain (Sewells Point Precinct) Two ULP charges dismissed (Union waived right to bargain), One ULP charge withdrawn 2013: Union filed two ULP charges alleging Agency failed to notify Union prior to implementing training requirements (CNRMA) Charges untimely 2014: Union filed ULP charge alleging Agency failed to notify Union prior to implementing training requirements (Norfolk) Charge untimely 2015: Union filed ULP charge alleging Agency implemented new training requirement (Sewells Point Precinct) Charge untimely
70 FLRA No. 104 2016: Union filed a grievance against the Agency alleging that Agency violated the agreement by failing to provide the Union an opportunity to bargain prior to requiring two BUEs stationed at Norfolk to perform new training requirement (PAT). Arbitration: Union argued grievance was a contractual claim while ULPs were statutory claims Agency argued earlier ULP dismissals were proof Agency provided sufficient notice and Union waived its right Arbitrator decided earlier ULPs would bar grievance but Agency did not raise such an argument Arbitrator found Agency failed to satisfy contractual obligation to bargain prior to implementing the PAT
70 FLRA No. 104 Authority disagreed with Arbitrator s award and held that Section 7116(d) of the Statue applies to the earlier filed ULPs Section 7116(d) bars the grievance when the theories advanced in the ULP charge and the grievance are substantially similar. Old rule Clear distinction between legal theories supporting allegations of contract violations and allegations of statutory violations, finding that the theories are not substantially similar for purposes of 7116(d). New rule No distinction between legal theories of contractual violations and Statutory violations if legal theories are substantially similar
Time Limitations to File ULP Charges 5 U.S.C. 7118(a)(4)(A)
5 U.S.C. 7118(a)(4)(A) states: no complaint shall be issued on any alleged [ULP] which occurred more than [six] months before the filing of the charge with the Authority.
70 FLRA No. 132 U.S Department of Defense, Education Activity and Federal Education Association
70 FLRA No. 132 November 2003: Arbitrator found that Agency failed to provide employees with sufficient information related to their pay. Arbitrator directed the Agency to modify its payroll system accordingly 2004 2010: Arbitrator held several implementation hearings with the parties to discuss how the Agency would comply with the Arbitrator s directive March 2010: Arbitrator sent the Agency a letter articulating the specific revisions that the Agency was required to make to its payroll system in order to comply with his earlier awards. Agency contacted its payroll service provider, the Defense Finance and Accounting Service (DFAS), and asked it to make those revisions April 2010: DFAS responded to Agency, declining to make all of the Arbitrator s directed revisions as such revisions were not available in the payroll system May 2010: Agency forwarded DFAS s response to the Union and the Arbitrator August 2010: Agency and DFAS presented to the Union and the Arbitrator an updated version of the payroll system. Union demonstrated to everyone that the system did not satisfy the award 2010 2015: Arbitrator continued to hold implementation hearings with the Union and Agency May 2015: Agency informed Arbitrator and Union that the Arbitrator s perpetual jurisdiction had placed the Agency in an untenable position and that the Agency would not make some of the revisions August 2015: Arbitrator issued additional award as Agency had failed to implement Arbitrator s award October 2015: Union filed ULP alleging repudiation
70 FLRA No. 132 In failure-to-comply cases, the six-month period begins to run when, as relevant here, one party expressly notifies the other that it will not comply with the obligations required by an award ALJ held that Agency repudiated Arbitrator s 2003 award Found that Agency notified Union in May 2015 that it would not comply with Award Authority reversed, finding ULP charge was untimely Found Agency notified Union in May 2010 that it would not comply with Award when it forwarded DFAS s response to the Union and the Arbitrator
Conditions of Employment 5 U.S.C. 7103(a)(14)
5 U.S.C. 7103(a)(14) 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 (A) relating to political activities prohibited under subchapter III of chapter 73 of this title; (B) relating to the classification of any position; or (C) to the extent such matters are specifically provided for by Federal statute
The Authority has held that a distinction between the terms conditions of employment and working conditions is improper as such a distinction is inconsistent with the Statute s legislative history and contrary to Authority and judicial precedent GSA, Eastern Distribution Center, Burlington, N.J., 68 FLRA 70, 75 (2014)
70 FLRA No. 102 U.S. Dep t of Homeland Security, U.S. Customs & Border Protection, El Paso, TX and AFGE, Nat l Border Patrol Council, Local 1929
70 FLRA No. 102 Arbitrator's decision: Agency violated Collective Bargaining Agreement, which incorporated section 7116(a)(5) of the Statute, by changing bargaining unit employees working conditions without providing the Union with advance notification and the opportunity to bargain.
70 FLRA No. 102 Arbitrator specifically found the Agency changed conditions of employment by issuing a memo to bargaining unit employees outlining the new procedure for processing cars at the entry point, including increasing the frequency at which bargaining unit employees were to inspect cars to a secondary checkpoint
70 FLRA No. 102 Authority disagreed & reversed precedent that there was no distinction between the terms working conditions and conditions of employment (W)orking conditions are the day-to-day circumstances under which an employee performs his or her job. 70 FLRA No.102 at 503 (internal quotation marks omitted) Old rule interchangeable terms with identical Statutory bargaining implications New rule agency only has to bargain over conditions of employment
70 FLRA No. 151 American Federation of Government Employees, Local 1633 and U.S. Department of Veteran Affairs, Michael E. Debakey VAMC
70 FLRA No. 153 Social Security Admin., Office of Disability Adjudication and Review, Sacramento, CA and Int l Fed. of Professional and Technical Engineers, Association of Admin. Judges
Past Practices
Past Practices A practice that is is consistently and openly exercised over a significant period of time and followed by both parties, or followed by one party and not challenged by the other U.S. Dep t of Labor, Wash., D.C., 38 FLRA 899 (1990)
Past Practices Previously, parties could establish past practices that were different than or inconsistent with the terms of their contract e.g. U.S. Dep t of the Navy, Naval Avionics Ctr., Indianapolis, Ind., 36 FLRA 567 (1990)
70 FLRA No. 107 U.S. Small Business Administration and AFGE, Local 3841
70 FLRA No. 107 Union filed grievance & invoked arbitration, but waited 6 months to request arbitrators from FMCS CBA said: Party invoking arbitration must contact FMCS within fourteen... calendar days of invoking arbitration Unless mutually agreed upon, all time limits... shall be strictly observed.
70 FLRA No. 107 Arbitrator acknowledged Union was untimely, but said the parties had a past practice that allowed Union not to strictly comply with the time limits for arbitration Found that grievance was timely, ruled in favor of the Union
70 FLRA No. 107 Authority disagreed & reversed precedent on past practices: arbitrators may not modify the plain and unambiguous provisions of an agreement based on parties past practices Old rule interfered with stability of bargained-for agreements New rule enables parties to rely on the negotiated terms of their agreements
70 FLRA No. 107 TAKEAWAYS: Past practices that conflict with plain language of CBAs? Bad. Past practices that do not conflict with plain language of CBAs? Maybe, but see, 70 FLRA No. 152.
FLRA Review of Arbitration Awards
70 FLRA No. 83 U.S. Dep t of Justice, Federal Bureau of Prisons and AFGE, Local 817, Council of Prisons Locals #33 Revises framework Authority applies when analyzing exceptions claiming that an arbitral award is contrary to a management right
5 U.S.C. 7106(a) establishes management rights under the Statute. The substance of management s decision to exercise these rights is non-negotiable. Right to determine the mission, budget, organization, number of employees and internal security practices Right to hire, assign, direct, layoff, retain, suspend, remove, reduce in grade or pay, discipline, assign work, contract out, determine personnel, make selections for promotion, and take other action as necessary to carry out the mission during emergencies.
5 U.S.C. 7106(a) management rights are subject to 5 U.S.C 7106(b)(3) bargaining 5 U.S.C. 7106(b)(3) allows negotiation over appropriate arrangements for employees adversely affected by the exercise of a management right. Excessive interference test balances a proposal s benefits to employees against the proposal s burden on the agency s exercise of its management rights
Is the Arbitrator s award contrary to law because it violates a management right under 7106 of the Statute?
- Does the award affect a management right? - Does the award provide a remedy for a contract provision negotiated under 7106(b) - Does the contract provision = arrangement? - Does the arbitrator s enforcement of the contract abrogate the exercise of the management right? - Does the award reasonably relate to negotiated contract provisions at issue and the harm being remedied? EPA, 65 FLRA 113 (2010); FDIC, 65 FLRA 102 (2010).
70 FLRA No. 83 (DOJ) Agency reserved assignments/days off/shifts for non-bargaining unit U.S. Public Health Service Commissioned Corps Officers before bargaining unit employees could bid on those shifts. Non-bargaining unit Officers allowed to participate in bidding process.
DOJ Arbitrator s Decision Agency violated parties contract when setting aside shifts/days off for nonbargaining unit Public Health Service Officers before bargaining unit employees could bid on those shifts and should exclude non-bargaining unit Officers from bidding to be consistent with the Statute.
DOJ Arbitrator s Award Agency prohibited from setting aside any assignments, days off, or shifts from roster for non-bargaining unit Officers that may available for bargaining unit employee bidding Agency may not allow non-bargaining unit Officers to participate in the bidding process
DOJ Framework - Has arbitrator found a violation of a contract provision? - Does the arbitrator s remedy reasonably and proportionally relate to the violation? - Does arbitrator s interpretation of the provision excessively interfere with a 7106(a) management right? U.S. Dep t of Justice, Fed. Bureau of Prisons, 70 FLRA 398, 405 (2018) (DOJ).
Application of DOJ Framework Did the arbitrator find a violation of a contract provision: YES Was the arbitrator s remedy reasonably and proportionally related to the violation: YES Does the arbitrator s interpretation of Article 18 excessively interfere with the Agency s right to assign work and employees under 7106(b): YES
DOJ Authority s Decision The Award restricts the Agency to a point where it can no longer assign work to employees outside of the bargaining unit and thus, excessively interferes with management s right to assign work and employees. Accordingly, the Award is Contrary to Law.
DOJ: Two Big Changes Eliminates requirement that contract provision must be negotiated under 7106(b) of the Statute. Replaces abrogation standard with excessive interference test in deciding whether an award impermissibly affects management rights.
Member DuBester s Dissent DOJ fails to account for practicalities of (1) collective bargaining and (2) administration and enforcement of contracts. Collective Bargaining = Balancing Enforcement = Deference
Authority s Application of DOJ U.S. Dep t of Justice, Fed. Bureau of Prisons, Corr. Inst., Big Spring, Tex., 70 FLRA 44(2018). U.S. Dep t of Justice, Fed. Bureau of Prisons, Corr. Complex, Lompoc, Cal., 70 FLRA 596 (2018). U.S Dep t of the Treasury, Internal Revenue Serv., 70 FLRA 792 (2018).
Representation Decisions
70 FLRA No. 96 U.S. Department of Labor and AFGE, Local 12
70 FLRA No. 97 U.S. Department of Veterans Affairs, Kansas City VA Medical Center and AFGE, Local 3841