YANKING OUR YO-YOS: ABROGATE AT ALL V. EXCESSIVE INTERFERENCE V. ENFORCEABILITY

As Kiko and Abbott pointed out in their recent decision terminating the “abrogate at all” arbitration review test in favor of a watered down excessive interference test the FLRA has modified the test in its four decades of operations at least half a dozen times. (AFGE, 70 FLRA 398) To put it more bluntly in terms that actual practitioners of day-to-day labor relations use, the Authority has once again yanked us around like a yo-yo, changing the rules and probably ushering in another half-decade of uncertainty and litigation.  Now, every time a LR manager loses a contract interpretation or application case, s/he will not be able to advise the principal agency executive with certainty  whether to appeal or to pay out before liabilities grow even higher.  Before Kiko and Abbott decided to mark their territory at least the parties could look to six or so years of case decisions as benchmarks. Given that the two political views of the statute are likely to continue bouncing back and forth over whether abrogation or interference is the right approach, we want to suggest a third approach that has benefits for both sides of the bargaining table.

If an agency feels a union bargaining proposal will make it too hard to manage, it can declare the proposal non-negotiable and seek an FLRA ruling before bargaining to conclusion on the issue or it can offer the union alternatives to drop the offending proposal.  However, if in the end the bargaining agency agrees to write the provision into the agreement it effectively waives its right to object based on a conflict with 7106(a), 7106(b)(1) and similar limitations on bargaining.

Recognizing that the bargaining agency can at times make decisions for the wrong reasons, the statute gives agency heads the ability to review the agreement one last time to ensure that nothing therein so deeply intrudes on the management rights as to violate the law. In short, the statute gives management two layers of protection against making commitments that effectively give away their management rights before the agreement is even implemented.

There is even a third layer of protection, although it is rarely used in practice–and in our opinion underused.  The Authority has interpreted the statute to allow agencies to declare a particular clause of a contract “unenforceable” at any time during the life of a contract. (See 49 FLRA 1522 (1994), 34 FLRA 635 (1990), 18 FLRA 902 (1985) 3 FLRA 182 (1980)) However, given that neither the bargaining agency nor agency head exercised their right to protect against non-negotiable provisions before the agreement went into effect, when they declare something unenforceable during the life of the agreement they must continue the practice established by that clause if they have the legal discretion to do so.  In fact, the agency must continue the practice until it notifies the union of the changes it wishes to make in that practice and complete any requested bargaining. (See 49 FLRA 1522 (1994).   If it wants to avoid bargaining, it merely leaves the practice unchanged.

Consequently, it strikes us that rather than let agencies file exceptions to an arbitration award claiming the remedy illegally intrudes on its management rights, the better course of action would be for FLRA to refuse to entertain those objections to a contract clause so late in the game. Rather, FLRA should tell the agency if it suddenly believes the contract provision  violates its various management rights as detailed primarily in 7106(a) and (b)(1) it can declare the contract provision unenforceable as a matter of contract.  If it does so, it can then either continue the policy/practice established by the contract provision as if it was a unilaterally adopted agency policy/practice (which is what it does when a term contract terminates) or it can notify the union of the policy/practice it wishes to replace the clause with and make the change once any requested bargaining is concluded.

The advantages of this approach are numerous.

First, it gets FLRA out of the business of judging whether an arbitrator’s remedy interferes to an illegal degree with management rights–whether the test be one of abrogation or interference. The agency decides and bargains accordingly.

Second, the parties use a process that is already in place and that has caused only minor ripples compared to the arbitration exception mechanism. The ability to declare an existing contract clause unenforceable was recognized by FLRA as early as 1980. No one has to get used to any new legal criteria, procedures and tactics.

Third, if the union disagrees with the agency’s assertion that the clause violates management rights, it can file an unfair labor practice or grievance (not a negotiability appeal).  The dispute will be judged by the currently oh-so-friendly FLRA and then the courts. IN the meantime, the agency can make the change. However, that means the agency makes the change at its peril. Unlike a contract interpretation arbitration exception process where it loses nothing by asking The KA to overturn everything, a ULP or grievance remedy can impose serious penalties on the agency.

Fourth, if the union accepts that the agency is likely correct, the union can ask to bargain and work out a new deal.  Now, in contrast,  the agency can rip the proverbial rug right out from under the union after the union has won an arbitration case by using the arbitration exception route that The KA has greased for management. The union has no recourse to negotiate an acceptable substitute rule to get back some concession it might have made in prior bargaining to get the now objectionable contract clause, or just to  soften the blow on employees  If unions are denied any recourse through collective bargaining when something they were promised by the agency is taken away that is likely to damage a relationship and send the union to sources outside the labor-management collective bargaining relationship for help, e.g., the media, Congressional, community groups, etc. The idea that statute would steer the parties to bargain a resolution rather than litigation is consistent with the goals of the statute.

Fifth, money is not wasted on arbitrations that not only turn out to be null and void, but also often the source of a union concerted action effort that damages employee morale. For example, in the new case that is causing all these problems The KA thought it was a swell idea to let the prison management set aside some available vacation periods for a small group of employees as if they were prima donnas or special.  It seems to us that it is a very, very bad idea to tell some correction officers that they are not as important as some co-workers.  Solidarity breeds safety in that environment.

Sixth, this approach is no different than the current procedure when an agency wishes to establish or change a policy/practice that is not in the contract.  It must almost always serve notice, bargain and maintain the status quo until impasse is concluded.  Surely a negotiated contract provision approved on agency head review should be treated with the same enforceability as a unilaterally adopted agency policy/practice. In fact, FLRA has already ruled that when a negotiated contract provision conflicts with an agency policy, the negotiated provision takes precedence. (Delaying the change through an enforceability process is also similar to what happens today when a new government-wide regulation is issued.  If it conflicts with a contract clause the new rule is not implemented until bargaining ends and/or the term agreement ends.

Seventh, agencies would still have the right to unilaterally terminate a contract clause if it violated external law outside the negotiability provisions.  Any union bargaining would be post-implementation.  Agencies could also unilaterally implement if they could prove it was necessary to the functioning of the agency, a de minimis change, covered-by an existing agreement, etc.

The bottom line of the approach we urge is that agencies would get their excessive interference standard for judging the enforceability of contract clauses–albeit subject to judicial review rather than uncontestable FLRA arbitration review.  Unions would get the chance to enforce the negotiated provision as a practice/policy during the status quo period of bargaining and negotiate over at least the impact and implementation of any replacement policy/practice. Finally, the political appointees of both camps would have less of a role in day-to-day labor relations.  As member Dubester so insightfully said in his dissent to the new decision:

In other words, employers and unions should determine, through the collective[-]bargaining process, what provisions best fit their working conditions and what arrangements are ‘appropriate.'” The Authority adopted the abrogation test to get the Authority out of the business, as part of the process of enforcing agreed-upon provisions, of rebalancing the parties’ interests, and substituting the Authority’s judgment for that of the parties at the bargaining table.