OH, HOW THEY LIE
FLRA Member Kiko made a point on her bio to mention that in her spare time she works with her church’s women’s group and Member Abbott majored in religion. Yet, these self-promoting theists have no problem making deliberate misstatements, commonly known as lies to those who have adopted the Ten Commandments. It is as if they are not just channeling President Trump, but also Jim and Tammy Bakker. Their latest fib popped up early in a new decision declaring that they were replacing the de minimis test for determining when an agency must bargain with a “sufficiently significant” impact on conditions of employment standard. They said this was necessary because case law shows that the de minimis test “…triggers an agency’s duty to bargain whenever management has made any decision, no matter how small or trivial….” If true, that might be a good foundational reason for making this change, but it is just not true. Not only has the U.S. Court of Appeals used the de minimis test to deny a union the right to bargain in 446 F.3d 162 (2005), but the Authority itself has used it to deny bargaining multiple times, e.g., 59 FLRA 728 (2004), 59 FLRA 46 (2004), 58 FLRA 363 (2004). We will not bother you with all the times ALJs and arbitrators used it to deny bargaining. So that is lie #1 in their decision.
But the falsehoods did not stop there. FLRA’s Jim and Tammy avatars also wrote that they were making this change because the new test is what the NLRB uses. But it does not. Aside from the fact that the NLRB has used the de minimis and substantial tests interchangeably (See NLRB v. Beverly Ent., Whitesell Corp.), the new Kiko-Abbott fantasy test is “sufficiently significant.” In other words, not just significant, but something more than that. Then, in a classic doubling-down move they went on to explain that the FLRA’s “sufficiently significant” test involves a two-part inquiry. That two-part examination appears nowhere in NLRB case law.
Finally, they claimed they were just reinstating the same test that the FLRA used up until 1985. But for the very reasons why the Abbott-Kiko test differs from the NLRB test it differs from the test FLRA abandoned decades ago.
If these two FLRA members had just limited the change to substituting the word significant for the de minimis criterion, this decision would probably be no big deal because most folks believe the words are synonyms along with considerable, substantial, noticeable, palpable, visible, trivial, material, etc.
But they did not do that for reasons they chose not to share with us lowly practitioners. Indeed, they chose to fabricate reasons rather than tell us the truth. Frankly, we suspect that this is a backdoor, low-profile attempt to resurrect their effort to distinguish between the statutory terms “conditions of employment” and “working conditions.” (See Fedsmill’s Conditions of Employment v. Working Conditions.”)
The more immediate problem is that by changing the criterion FLRA just rendered useless over 35 years of precedential case law that provided tangible benchmarks against which practitioners could assess their specific situation. Abbott and Kiko are forever saying that federal sector labor relations must be conducted in an efficient and effective way, but we fail to see how tossing over three decades of case law benchmarks and starting all over again is either efficient or effective. It certainly does not support the oft-stated statutory goal of stability and repose.
Unions are likely to challenge any agency effort to use the new test until the courts have settled this matter a few years from now. In the meantime, potential agency liabilities will be building that could saddle future agency leaders with “make whole’ heartaches.
Stated differently, Abbott and Kiko have just added a big dose of uncertainty for agencies because it costs the unions very little to challenge every attempt to use the new criterion. The wisest agency LR leaders will continue to use the de minimis standard and its benchmarks rather than follow Jim and Tammy’s lead.
For more details about this new fairytale decision see Dept. of Education and Dept of Agriculture, 71 FLRA 968 (2020). Member Dubester’s dissent is a far more thorough explanation of why Abbott and Kiko are hypocrites.