“CONDITIONS OF EMPLOYMENT” (CoE) V. “WORKING CONDITIONS (WC).” WHY BOTHER?
When first we read AFGE and DHS, CBP, 70 FLRA 501 (2018) we were left wondering why Abbott and Kiko were trying so hard to justify another exception to a union’s right to bargain over midterm changes. You may remember that case held unions only had the right to bargain before the change was implemented if it changed CoE, but not if it only changed WC. This was so important that the two Trumpettes opened themselves to bar charges by deceitfully manipulating a quote to make it seem as if the High Court agreed with their view—when in reality the Court held precisely the opposite according to a unanimous decision of three federal appellate judges. That is a lot to risk when what Abbott and Kiko were trying to do looked like it could already be accomplished by an agency claiming the change was de minimis. There is 16 years of case law holding that is a legitimate exception to the right to bargain and providing practitioners solid examples and criteria for applying the exception. But then it came to us what all this deceit and obfuscation was really about?
Let’s begin with a short review of the de minimis exception. An agency has no obligation to bargain over a change that has or is likely to have only a de minimis impact on conditions of employment. That is true whether the change would be negotiable as to substance or impact. (AALJ v FLRA, 397 F.3d 957 (D.C.Cir. 2005) In deciding whether a change is de minimis, precedent directs the parties to look at the “nature and extent of the change” OR “the reasonably foreseeable effects” of it. DLA, 58 FLRA 750 (2003). Moreover, the number of employees impacted by the change is irrelevant to whether the change was de minimis—even if only one employee was impacted. Eglin AFB, 60 FLRA 620 (2005) Those few criteria alone are far, far more helpful to practitioners than the Abbott-Kiko decision which the federal judges said left them not knowing whether xxxxxxx.
In addition to those criteria, there are now a dozen or so cases applying them to actual facts that practitioners deal with all the time, e.g., changes in telephone call-routing systems – SSA and AFGE, 69 FLRA 363 (2016), space layout (AALJ v FLRA, supra), data system – CBP, Texas – 67 FLRA 46 (2012), workload – SSA and AFGE, 54 FLRA 531 (2003), office conveniences – DoL and AFGE, 37 FLRA 25 (1990), training agendas – NBPC v. FLRA, 446 F.3d 162 (2006), critical elements and performance standards – AFGE and HUD, 56 FLRA 592 (2000), local relocations – PBGC, 59 FLRA 48 (2003), government cars, AFGE and DoL, 58 FLRA 616 (2003), EEO policy –Dep’t of AF and AFGE, 57 FLRA 730 (2002), etc.
In short, the de minimis exception gives practitioners all the tools and guidance they generally need to administer the concept with minimal chance of being wrong and incurring huge financial and programmatic liabilities when it is agency that is wrong.
So back to the core question, why would Abbott and Kiko deliberately manipulate a Supreme Court pronouncement to get another exception to the bargaining obligation that 1 – offers the agency nothing more than the de minimis exception does, 2- launches agencies down a path with virtually no benchmark criteria or examples to guide implementation, and 3- creates huge potential liabilities for agencies as the concept works its way through different political administration and the courts for review? It is because the case law provides that an arbitrator’s de minimis determination is a factual one which is very hard for FLRA to overturn. DoL and AFGE, 70 FLRA 27 (2016) and SSA and AFGE, 70 FLRA 106 (2016). National labor policy is that arbitrators get great deference on determining the facts of a case. However, if Abbott and Kiko can characterize these case as about questions of law, e.g., is it a change in CoE or WC, then FLRA gets to review the arbitrator’s decision de novo without giving the arbitrator any deference. Stated differently, want to increase their power over arbitration decisions. They want a system where the outcome of the case depends on which political administration controls the FLRA, not the application of pre-set criteria irrespective of who controls the White House. In other words, they want a government of men, not of laws –and they do not care how much its costs agencies when they guess wrong or are caught between changes in administrations. Abbott and Kiko do not care a twit about the “efficient and effective” operation of government; they care only about their party’s power to punish non-supporters.