THE “SOLE AND EXCLUSIVE” ULP DEFENSE
An agency can unilaterally implement a change in working conditions without notice to or bargaining with the union if it can show that under other laws gave had the sole and exclusive discretion to take some action irrespective of the labor, personnel or other laws. But, as the Authority just described in AFGE 67 FLRA 501 (2014), the agency cannot merely argue that its mission or the particular change was so vital that its violation of law should be excused. Agencies must meet specific criteria.
Moving right to the core of the case, FLRA reminded the agency that it “examines the plain wording and the legislative history of the statute being relied on” to support the agency’s assertion of total discretion. The Authority acknowledge that it has found sole and exclusive discretion where a statute empowered an agency to act “without regard to the provisions of other laws applicable to officers or employees of the United States,” and also when a statute provided that an agency’s conduct “shall not be limited by . . . any provision of law . . . relating to the methods of involving . . . labor organizations . . . in personnel decisions.” However, it also emphasized that the absence of wording that expressly preempts the Federal Service Labor‑Management Relations Statute or other laws is a “strong indication that Congress did not intend the [agency] to have unfettered discretion” over a matter.
The Agency also argued that, because “the level of protection that agencies provide should be commensurate with the risk to agency operations and assets,” the protection of information systems containing criminal‑investigative materials should be under an agency’s sole and exclusive discretion. The Authority disagreed asserting that neither Congress’s concern with the security of information systems, nor its conviction that agencies should tailor their responses to address that concern, demonstrates congressional intent to vest the Agency with sole and exclusive discretion over information‑security matters. In other words, the legislative history is consistent with the Agency’s obligation to bargain to the extent of its discretion regarding its information‑security policies.
