#flra

Dave Jamieson at HuffPost:

A small but essential federal agency plans to get rid of its judges who help resolve government workplace disputes, a move unions say will consolidate more power among President Donald Trump’s political appointees and weaken the collective-bargaining system. The Federal Labor Relations Authority has told Congress it will eliminate its administrative law judges as part of a reorganization scheme to comply with the Trump administration’s cost-cutting orders. The judges conduct hearings involving unlawful firings and union contract violations, and issue decisions that can be reviewed by the authority’s three presidentially appointed members.

Unions are concerned because the three judges serve as subject-matter experts who are insulated from political meddling to protect their neutrality. With the judges gone, the review of unfair labor practice cases would be left solely to the president’s appointees. The FLRA is an obscure federal agency with only around 100 employees, but it serves a critical role in government labor relations. It’s typically where federal unions turn to when they believe their members’ rights have been violated, which has been frequent during the Trump era.

The plan was laid out in the FLRA’s budget proposal to Congress, dated May 30. The document states that getting rid of the judges is one of many “organizational changes necessary to align with the Administration’s vision for the Federal government.” It argues that the judges don’t have a large enough caseload ― on average, 15 hearings per year ― to justify having three of them. Thomas Dargon, deputy general counsel at the American Federation of Government Employees, which represents 800,000 federal workers, said he doesn’t believe the reorganization is really about trimming the agency’s budget. “I think it’s about the FLRA members wanting more control over the outcomes of complaints,” Dargon said. “It’s more about control than it is about money.” The agency normally has three members serving staggered 5-year terms. But Trump fired its former Democratic chair, Susan Tsui Grundmann, in an unprecedented move shortly after taking office. That left Republican member Colleen Duffy Kiko, who Trump appointed chair; Democratic member Anne Wagner; and one vacancy.

A significant legal battle is unfolding in the United States as labor unions attempt to block a controversial rule introduced by the Federal Labor Relations Authority. The dispute focuses on a policy that transfers authority over union elections from career civil servants to politically appointed officials, raising concerns about transparency and political influence.

Also Read : -https://businessmindsmedia.com/flra-policy-change/

Lisa Needham at Shareblue: 

It's no secret that Trump hates following any laws when it comes to immigration. He's jailed babies. He's ignored asylum laws. His slapdash border actions have jammed the immigration courts so full there's now a backlog of almost 877,000 cases.

Trump's proposed solution: to bust the union that protects immigration law judges who process those cases. Last week, the Department of Justice (DOJ) filed a petition with the Federal Labor Relations Authority (FLRA) asking it to address whether the judges' labor union, the National Association of Immigration Judges, should be decertified.

That the immigration law judges are members of a union may seem surprising, since they are judges. However, they are actually employees of the DOJ, even though they sit as judges in immigration cases.

[...]

Union’s ability to represent workers undermined by Secretary DeVos’ team

WASHINGTON – The American Federation of Government Employees has charged the Department of Education with violating federal labor law by throwing out the contract covering 3,900 federal employees and denying workers their legal right to representation.

AFGE filed an unfair labor practice charge with the Federal Labor Relations Authority on March 12, stating that the Education Department failed to negotiate and bargain in good faith over a new contract.

After months of anti-union proposals and hostile behavior at the bargaining table, Department of Education management told AFGE Council 252 President Claudette Young on Friday, March 9, that it would not negotiate and would instead implement its own terms. The so-called “collective bargaining agreement” referred to by management is an illegal management edict that guts employee rights, including those addressing workplace health and safety, telework, and alternative work schedules.

“The Education Department has imposed on its workers an illegal document that we had absolutely no bargaining over,” Young said. “Secretary Betsy DeVos and her management team are attempting to strip employees of their collective bargaining rights and kill the union.”

Education Secretary Betsy DeVos’ vendetta on public education has now taken stage within the Department of Education by gutting employees’ right to representation in the workplace, and interfering with AFGE’s legal obligation to represent employees by taking away representational time for union representatives. Education’s management edict subverts the statutory process established by Congress 40 years ago to facilitate the representation of all employees covered by a collective bargaining agreement, regardless of their decision to join or not join the union.

AFGE Council 252 represents 3,900 Department of Education employees across the country, all of whom will be adversely impacted by this new anti-union decree. The council is composed of 10 locals in the following regions: Atlanta, Boston, Chicago, Dallas, Denver, Kansas City, New York, San Francisco, Seattle, and Washington.

Joining the union is voluntary for workers, yet AFGE and other federal unions are required by law to represent everyone covered by the union contract – even if they choose not to join. For this reason, Congress provided representational time so that the union can carry out its legal duty of fair representation to all those who are covered by the contract, including those who choose not to pay dues. Removing access to this time is like asking the fire department to operate without firetrucks or a firehose.

DeVos’s new edict requires shop stewards and local union officers to use leave without pay to carry out their statutory representational duties – which include things like meeting with employees and managers to resolve workplace disputes, addressing issues of discrimination and retaliation, and effecting improvements in work processes. This edict is counterproductive and wrong. It’s bad for public employees, and it’s bad for public education.

“AFGE did not agree to these unilateral terms,” Young said. “AFGE is, and has been, eager to return to the table to negotiate a fair and just contract, which all employees deserve.”

Read more: Biggest Violations in DeVos’, Dept. of Ed. Management’s Edict

This case has a slew of complicated case facts involving a decision of a prior political administration (not Bush) to negotiate language getting the Patent and Trademark Office into the legally questionable area of adjusting pay.  I’ll try not to bog us down too much in that issue.  In essence, this case involves a prior decision of FLRA (pre the Ms. Pope & Co. majority) that the only appropriate arrangement an Agency has to bargain was one involving the exercise of a management right under 5 USC§7106(a).

Apparently, FLRA was hot to let the unions bargain arrangements covering any perceived inconvenience whether tied into management rights or not despite Chairperson Pope’s concurrence with the earlier decision.  I suspect another critical ingredient in FLRA’s decision was that the earlier case was decided using the now tanked (by FLRA) “excessive interference” test as opposed to the unions’ preferred scheme represented by FLRA’s “Abrogation Test”.

OPM defines these theories as follows:

EXCESSIVE INTERFERENCE.   A balancing test that the FLRA applies to proposals that are arrangements for employees adversely affected by the exercise of management's rights in order to determine whether they are negotiable appropriate arrangements within the meaning of § 7106(b)(3). The test involves balancing the extent to which the proposal ameliorates anticipated adverse effects against the extent to which it places restrictions on the exercise of management's rights. Compare with ABROGATION TEST.

ABROGATION TEST.  A test the Federal Labor Relations Authority (FLRA or Authority) formerly applied in determining whether an arbitration award enforcing a contract provision affecting management's § 7106(a) rights is deficient. Under that test (which was in existence for 12 years), an award enforcing a contractual provision that is an "arrangement" for employees adversely affected by the exercise of management's § 7106(a) rights would not be set aside unless it "abrogated" those rights--i.e., unless it left management no discretion at all with respect to the management right(s) at issue. For lead cases see37 FLRA Nos. 20, 67, 70, 103 and 38 FLRA Nos. 3 and 21.

Obviously, these definitions were written before the current FLRA killed “excessive Interference” and reinstituted “abrogation”.  They are still up on the OPM website.  Based on the court’s decision, OPM would be well advised to leave them up.

This case also got wrapped up in whether the Agency had argued collateral estoppel regarding the prior decision.  The Court was apparently disturbed by FLRA’s argument that it hadn’t.    I’m sure this claim was based on FLRA’s work avoidance regulations limiting arguments that may be made on appeal.

The Court said, “While it did not use the magic words “collateral estoppel,” PTO nonetheless argued the substance of a collateral estoppel defense in its exceptions to Award II.  Later in the same paragraph the court couldn’t help saying “(“[T]he arbitral proceedings and the Agency’s exceptions are rife with collateral estoppels implications. Both parties and the Arbitrator recognized the implications of the Authority’s prior decision and the Agency addressed the impact of that decision throughout its exceptions.” (internal citations omitted)). We do as well.”  Apparently, it was lost on FLRA’s Solicitor, who seems to need magic words to be spoken or perhaps yelled into her ear.

It appears clear the court was saying that the “abrogation test” is out because of the precedent set in the prior decision used “excessive interference” as the test.  I’m sure FLRA will claim this is a fact case specific to these facts and no others.  We’ll wait to see if in the next abrogation case that goes to the Circuit, it must again hold first year law classes for FLRA’s attorneys.

As always, the above is my opinion and doesn’t represent anyone else.  If it does represent anyone else’s opinion, I’m glad to hear it.

This case has a slew of complicated case facts involving a decision of a prior political administration (not Bush) to negotiate language getting the Patent and Trademark Office into the legally questionable area of adjusting pay.  I’ll try not to bog us down too much in that issue.  In essence, this case involves a prior decision of FLRA (pre the Ms. Pope & Co. majority) that the only appropriate arrangement an Agency has to bargain was one involving the exercise of a management right under 5 USC§7106(a).

Apparently, FLRA was hot to let the unions bargain arrangements covering any perceived inconvenience whether tied into management rights or not despite Chairperson Pope’s concurrence with the earlier decision.  I suspect another critical ingredient in FLRA’s decision was that the earlier case was decided using the now tanked (by FLRA) “excessive interference” test as opposed to the unions’ preferred scheme represented by FLRA’s “Abrogation Test”.

OPM defines these theories as follows:

EXCESSIVE INTERFERENCE.   A balancing test that the FLRA applies to proposals that are arrangements for employees adversely affected by the exercise of management's rights in order to determine whether they are negotiable appropriate arrangements within the meaning of § 7106(b)(3). The test involves balancing the extent to which the proposal ameliorates anticipated adverse effects against the extent to which it places restrictions on the exercise of management's rights. Compare with ABROGATION TEST.

ABROGATION TEST.  A test the Federal Labor Relations Authority (FLRA or Authority) formerly applied in determining whether an arbitration award enforcing a contract provision affecting management's § 7106(a) rights is deficient. Under that test (which was in existence for 12 years), an award enforcing a contractual provision that is an "arrangement" for employees adversely affected by the exercise of management's § 7106(a) rights would not be set aside unless it "abrogated" those rights--i.e., unless it left management no discretion at all with respect to the management right(s) at issue. For lead cases see37 FLRA Nos. 20, 67, 70, 103 and 38 FLRA Nos. 3 and 21.

Obviously, these definitions were written before the current FLRA killed “excessive Interference” and reinstituted “abrogation”.  They are still up on the OPM website.  Based on the court’s decision, OPM would be well advised to leave them up.

This case also got wrapped up in whether the Agency had argued collateral estoppel regarding the prior decision.  The Court was apparently disturbed by FLRA’s argument that it hadn’t.    I’m sure this claim was based on FLRA’s work avoidance regulations limiting arguments that may be made on appeal.

The Court said, “While it did not use the magic words “collateral estoppel,” PTO nonetheless argued the substance of a collateral estoppel defense in its exceptions to Award II.  Later in the same paragraph the court couldn’t help saying “(“[T]he arbitral proceedings and the Agency’s exceptions are rife with collateral estoppels implications. Both parties and the Arbitrator recognized the implications of the Authority’s prior decision and the Agency addressed the impact of that decision throughout its exceptions.” (internal citations omitted)). We do as well.”  Apparently, it was lost on FLRA’s Solicitor, who seems to need magic words to be spoken or perhaps yelled into her ear.

It appears clear the court was saying that the “abrogation test” is out because of the precedent set in the prior decision used “excessive interference” as the test.  I’m sure FLRA will claim this is a fact case specific to these facts and no others.  We’ll wait to see if in the next abrogation case that goes to the Circuit, it must again hold first year law classes for FLRA’s attorneys.

As always, the above is my opinion and doesn’t represent anyone else.  If it does represent anyone else’s opinion, I’m glad to hear it.