YO-YO KA IS NO YO YO MA
While the world of music is blessed with the genius of Yo Yo Ma, the Federal LMR community is stuck with the screeching of Yo-Yo KA. Kiko and Abbott (aka The KA), our two little TRUMP-ettes, have decided once again to yank us LMR practitioners like a yo-yo from the stability and comfort of long-time legal precedent. They just announced that the bargaining obligation only covers changes in “conditions of employment,” not changes in “working conditions.” As they see it, one of the canons of statutory construction, which they never specifically cite, requires that the two terms must mean something different since they are not identical. That is the equivalent of denying the existence of synonyms in the English language, such as a donkey and an ass. Apparently, The KA believes management is suffering such a huge injustice now that an entirely new exception to the bargaining obligation is needed. It matters little to them that this will lead to years of litigation, during which management reliance on the rule could cost the government millions in back pay and attorney fee damages. The current publicly known cost to an agency of a single blunder is $900 million, but nothing says it can’t go higher.
THE BACKGROUND FACTS– A CBP agency manager issued a memo ordering Border Patrol Officers to refer certain incoming travelers for secondary inspections, a far more thorough examinations by other Border Patrol Officers than the standard initial one. The employees no longer were allowed to use their judgment to decide who to refer to secondary. Obviously, that meant a lot more work for those employees assigned to do secondary inspections, which typically means the agency will have to reassign employees from the primary inspection process to secondary and/or increase the need to work overtime. Because the agency manager made the change unilaterally, the union filed a grievance alleging violations of a contract obligation to pre-announce changes and the statutory obligation to bargain. The arbitrator agreed with the union and ordered a return to the status quo ante. A more complete review of the facts can be found in AFGE, NBPC, Local 1929, 70 FLRA 501 (2018).
THE KA’S REASONING– As is their practice, The KA overturned the arbitrator who found for the union. This time they based it on the wording of Section 7103(a)(14) which defines broadly what the agency is obligated to bargain over. It reads–
‘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 KA concluded that because the statute defined “conditions of employment” as matters affecting “working conditions” the two highlighted terms must mean something different. Therefore, agencies need only bargain over changes in conditions of employment, not changes in working conditions. Their reasoning was as follows:
1 – They declared that the previous Authority and Court of Appeals members who examined that same issue only to reach a different conclusion were “convoluted.” Following the example of President Trump, they didn’t just critique the conclusions of other, they also denigrated them as people and jurists. This timeless, narcissistic technique has given society such shameful counter-arguments as, “The other person(s) conclusion is wrong because (a) “he is a Jew,“ (b) “she is gay,” (c) “they are Mexicans,” (d) “she is fat and ugly,” (e) they are Catholic religious zealots, etc.
2 – They claimed the “accepted rules of statutory interpretation” prohibit giving different terms used in the same context the same meaning—although they never cited which rules compels this. As an example, they explained it is not helpful to define as rock as a rock-like substance, but failed to notice that the good folks at Merrian-Webster define a rock as a mass of stony material, affirming the legitimacy of using synonyms to define terms. In fact, it is hard to think of a term that can be defined without using a synonym.
3 – They referenced a Supreme Court decision that they claim gives the two terms different meanings. But it does not, at least in the context they suggest. They ignored the part of the decision where the Court equated to two terms, i.e., “And the second exception set forth in § 7103(a)(14), as set forth above, unquestionably assumes that “conditions of employment” (and hence ‘working conditions’ bears the broader meaning.”) [Underlining added for emphasis] Such cherry picking smacks of fake “judgery,” if you ask us.
4 – Despite stating that the FLRA and federal judiciary has misunderstood the law for four decades, they failed to provide any example or rule of thumb that would help LMR practitioners apply the new rule. We are left to apply this new rule using only the facts of this CBP case involving the “increasing or decreasing one’s duties.” Unfortunately, the FLRA had already ruled they were not negotiable changes for different reasons (See footnote 37), leaving practitioners to guess why this CBP workload increase was different from the other increases.
THE DISSENT & COUNTER-ARGUMENTS– Member Dubester, currently serving as Dissenter-In-Residence and Liaison-To-Legal-Logic, offered several reasons why The KA is wrong yet again. Moreover, he did it with class, choosing not to denigrate the majority members with Presidential barbs like “Little Kiko,” or “Lying Jim,” or “The Crooked KA.” We are going to add our own practitioner-biased thoughts to his to provide a broad range of arguments for overturning this decision.
As stated above, The KA has created an entirely new exception to the bargaining obligation based on a single rule of statutory construction that they conclude requires that “conditions of employment” means something different than “working conditions.” On the other side, there are at least ten (10) arguments weighing against that conclusion.
1 – The D.C. Circuit already upheld a FLRA decision rejecting the interpretation The KA now urges. The litigation history is reviewed in GSA, NJ and AFGE, 68 FLRA 70 (2014), which reaffirms that the scope of bargaining is to be interpreted broadly absent specifically listed exceptions.
2 – Accepting the KAs conclusion that “conditions of employment” do not include “working conditions” opens a Pandora’s box of possibilities about how to apply those terms where they are used elsewhere in the Statute. For example, arguably The KA interpretation permits managers to punish union supporters with “working condition” decisions, but not condition of employment decisions since 7116(a)(2) only restricts conditions of employment abuse. (It would also encourage those who oppose the Civil Rights Act of 1964, the Age Discrimination in Employment Act and USSERRA to step up efforts to narrow their reach given their focus on “conditions or privileges of employment,” but not working conditions.)
3 – Unlike The KA’s uncited alleged rule of statutory construction, at least four other actual rules of statutory construction suggest the opposite of The KA’s conclusion, namely,
- “Expressio unius est exclusio alterius” strongly suggests that by not listing The KA’s exception with the three statutory ones enumerated in 7103(a)(14) The KA’s exception is bogus.
- Because Congress is presumed to know how to draft something if it intended some distinction apply, its decision not to insert make The KA’s distinction in wording of 7103(a)(14) suggests the distinction does not exist. In GSA, supra, FLRA affirmed this, “Of course, in drafting the Statute, Congress could have endorsed a distinction between the terms “working conditions” and “conditions of employment” that resembles the distinction advocated in the dissent. But the Congressional Record indicates that Congress chose to do otherwise.”
- In the absence of an expressed distinction, similar terms in the same statutory sections must be given the same meaning and exclusions from foundational statutory rights should be narrowly construed. National Credit Union Admin. v. First Nat’l Bank & Trust Co., 522 U.S. 479, 501(1998).
- The Whole Act interpretive rule would turn 7116(a)(2) into a tool to punish union supporters.
4 – A fifth rule of statutory construction is that one is to follow the normal rules of grammar and punctuation when interpreting a sentence. That brings to mind the wisdom of Sister Mary Eternal Immaculate Infallibility—or something like that—and her many lessons on sentence parsing. Once the modifying and/or extraneous words are deleted from 7103(a)(14), we are left with a simple, easy to interpret, declarative sentence that confirms The KA’s interpretation is wrong.
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
5 – The KA seems to be saying that synonyms cannot be used to define a word or term without any citation to this phony-baloney rule they relied on. If true, that would deny Western Civilization’s dictionary writers their primary tool. It would also render statutory sections 7103(a)(2), (8), (13), and (17) at least similarly defective and probably in urgent need of The KA’s reinterpretation.
6 – The KA is creating an entirely new exception to the bargaining obligation after 40-plus years of case law development without pointing to a debilitating gap in existing law or other need for a policy change. (In GSA, supra, the Authority noted that reading the two terms as synonyms goes back to the days of Executive Order 11491.) Moreover, The KA does not explain how the many existing exceptions to the bargaining obligation cover different situations than with this new exception, e.g., the de minimis and covered-by exceptions as well as the “contract allows” exception described in AFGE, 65 FLRA 201 (2010)
7 – The KA has created an amorphous bargaining exception without implementing criteria or even examples against which practitioners and jurists can benchmark against and assess other situations. That is a recipe for a long and costly multi-circuit, litigation free-for-all—hardly efficient or effective, much less an environment of stability and repose.
8 – This change was significant enough to the agency that it announced and memorialized it in a memo; the incident did not involve a single employee being ordered to do something on a one-time basis nor was it shouted out at a morning muster by a temporarily frustrated supervisor. Moreover, the odds are very, very high that if one of the Officers failed to follow the memo’s direction, s/he would have been in for considerable discipline, if not criminal investigation of a possible conspiracy with smugglers. Finally, there was no mention in the memo that this direction was merely a reaffirmation of an existing practice nor part of a cyclical adjustment, both of which generally come with their own exception to any bargaining obligation.
9 – The agency’s memo amounted to an act of directing employees to do something. Ironically, the act of directing employees was considered so substantial that the statutory drafters decided to protect it from all but impact and implementation bargaining. They made it a 7106(a) management right. Not only does that suggest that directing employees involves a substantial condition of employment, but protecting it as a management right would be meaningless if a direction was only a non-negotiable working condition.
10 – Most any practitioner with a year or two of on-the-ground experience knows that a union would have the right to negotiate in a term contract the following provision:
When the agency orders Officers to send specific classes of travelers to secondary, it will comply with the following procedures and appropriate arrangements:…..
The KA never explained why the union is entitled to negotiate I&I matters addressing incident like this, but the agency is not obligated to serve notice and bargain if it unilaterally makes the change. That makes no sense—like so much of The KA’s Alt-right, union-hating thinking on this issue.