FLRA Case Law Update
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FLRA Case Law Update

>>Welcome. My name is Marcus Fuller. I am a labor relations specialist on the accountability
and workforce relations team here at the US Office of Personnel Management. It gives me great pleasure to welcome you
to todayís webcast training entitled the FLRA Case Law Update. Our office presents webcast trainings in support
of our ongoing effort to bring relevant and reliable developmental opportunities to federal
sector employee and labor relations practitioners. Our speakers will discuss fiscal year 2019
decisions from the Federal Labor Relations Authority. The case law is updated as of December 5th,
2019. If you have any questions about the training,
you may send an email to [email protected] We would do our best to field as many questions
as possible. Please note that your webcast instructions
also included a SurveyMonkey hyperlink to an evaluation form. Simply click the link, follow the instructions,
and your valuable instant feedback will be sent back to us. We are pleased to have as todayís speakers
Amanda Gill and Amanda Jones from OPMís Accountability and Workforce Relations Policy Office. Amanda Gill is currently serving as a labor
relations adviser. She has over 25 years of federal service,
including significant experience in employee relations in addition to her labor relations
expertise in the interpretation and application of labor agreement. Amanda Jones is currently serving as a human
resource specialist labor relations. She provides policy guidance and technical
assistance to agency labor relations practitioners and attorneys. Please join me in welcoming Amanda Gill and
Amanda Jones.>>All right. Thanks so much, Marcus. And welcome, everybody. Thank you so much for joining us here today. My name is Amanda Jones. And, yes, you heard that right. We are both named Amanda. This is Amanda Gill to my left. And today weíre here to talk about the FLRA
Case Law Update. I know we have 2019 in the introduction on
the slides, but weíre actually going to give an overview of some of the 2018 cases that
we feel like were particularly significant and that practitioners and attorneys should
know about. So we will be talking about both 2018 and
2019 significant cases today. And I will turn it over to Amanda for some
introduction on the statute.>>Thank you, Amanda. Iím sorry. We wonít do that the entire house because
we realize that might get to be a bit too much. However, thank you for joining us. We know the next hour, you guys are going
to–youíve been anticipating this hour for a long time. I have. So weíre going to move on to Federal Service
Labor and Management Relations Statute, right, also known as 5 USC Chapter 71. The statute–also fondly known as The Statute,
and which is what–actually the reference I would probably use most of the hour. So the statute defines the rights of employees,
labor organizations, and agencies. And I think the piece that really has been
renewed focuses in holding the highest standards of employee performance and efficient government
operations. This is found in 7101(a) and (b). Actually, the second bullet is also located
in (b). So this is, really, under Congress finds. This is the intent of Congress. And in 7101(b), the last sentence actually
says that the statute should be interpreted in a manner consistent with a requirement
of an effective and efficient government. And as LR practitioners, if you have actually
seen a lot of the case law thatís come out since last year, youíve seen a very renewed
focus on that particular language. This language is also cited in the Workforce
Executive Orders, primarily Executive Order 13836 Section 1 and 13837 Section 3. So the second slide, basically the relevant
provisions, right? These are–as practitioners, we probably really
know the statute inside and out. And if we havenít, we will probably get to
know it inside and out. But these following sections are the relevant
provisions for many of the cases and–that we are going to actually speak to over the
next 55 minutes now?>>Uh-hmm.>>All right. First case. The first case is a 2018 case. I think almost everyoneís probably heard
about this. But before we actually focus on the substance
[inaudible] matter of the case, I think itís probably important to have a little bit of
history and context as to what the authority had previously cited as a management rights
framework when it came to arbitral decisions. So up until 1987, the authority used multiple
approaches in addressing arbitral authorities. And when I say multiple approaches, in some
instances, if agreements interfered with the management right–7106(a) right, the authority
would consider it to be not arbitrable. However, in other instances, if the arbitration
or if the arbitrational award did not preclude–was not precluded for being addressed by an arbitrator,
if the remedy is fashioned by the arbitrator where no–provided no requirement beyond what
was specified in existing law. So, yes, a little bit of confusing, and actually
got a little more confusing, at least to my opinion, over the next decade or so. So in 1988, in Social Security Administration,
the authority concluded that restrictions found in 7106(a) on the remedial authority
of arbitrators was not warranted as long as the arbitrator found that the agency had violated
law, rule, or regulation. So what does that mean? That, basically, what it meant was that the
arbitratorís authority to substitute their judgment for that of management if fashioning
a remedy for a violation was beyond restriction. So, basically, an arbitrator could do what
they wanted to do in fashioning an appropriate remedy. The Supreme Court however rejected that view. And in Department of Treasury, IRS versus
FLRA, Justice Scalia basically clarified that when an agency acts pursuant to a management
right enumerated in 7106(a), it is insulated from the grievance requirements of 7121(c). And the authority seemingly ignored or continued
to ignore this case for about another seven years until we get to the Bureau of Engraving
and Printing. And in BEP, a two-member quorum revised their
framework into a two-pronged test to determine when an arbitratorís award adversely affected
a 7106(a) right. And in the first prong, the authority found
that an arbitrator award that affects management rights may provide remedy only for a violation
of either applicable law or for a negotiated provision under 7106(b) in a collective bargaining
agreement. And under the second prong, the authority
decided that it would analyze whether the remedy for such a violation was basically
a reconstruction of what would have happened had the violation not occurred. So what the authority said was that if there
was a violation, did the arbitrator basically fashion a remedy that would lead–what have
actually been what the agency would have done had they actually not violated the contract. And under that framework, the reconstruction–the
reconstruction provision actually stood for a while. And the authority basically followed BEP until
about 2010. And in 2010, the authority jettisoned reconstruction. And then we had FDIC and the FPA cases, which
you actually see at the bottom of your slide. And, basically, in FDIC and EPA, the authority
focused on the remedy and not as much as the violation of 7106(a) rights. In FDIC, quite simply–well, what that basically
said was that if an established award that–an established award imposes a constraint on
managementís rights if the provision that was violated was not agreed to by the parties. So, in other words, it–if it was not negotiated
then the award would have been set aside. And then in EPA, that also focused primarily
on remedies. And if a provision wasnít negotiated pursuant
to 7106(b), an arbitratorís award could only be contrary to law if the award entirely abrogated
managementís rights. In 2012, the DC–US Court of Appeals for the
DC Circuit called for the authority to abandon the abrogation standard and return to the
excessive interference standard. And in that vein, what they said–actually
there was a very, very distinct conversation on the court when they said that 7106(b) was–really
the only way that should have been applied was if the agency chose to bargain or not
to bargain or not to bargain over that particular matter, and reliance on a 7106(b) negotiated
provision when it came to arbitral awards really was nonsensical. And so that brings us up to this current case.>>Okay. Great. So this is the BOP case thatís on your slide
that weíre going to be talking about and thatís going to kind of set the stage for
the FLRA coming up with this new management rights framework that you also see in your
slide. So before we get to the actual new management
rights framework, Iím just going to go over the facts of this particular case. So the agency in this case provides medical
services. They are the Bureau of Prisons. They provide medical services for over 200,000
federal inmates. They actually have two types of employees
that provide these medical services. They have bargaining unit employees, which
are covered by the CBA in this case, and they–and they have another set of employees that are
non-bargaining unit because theyíre in the uniform service. And they–those are under the US Public Health
Service Commissioned Corps, so weíll call those PHC officers or non-bargaining unit
employees in this case. So we have those two sets of employees working
together in these medical services. And just for a little background, these officers,
the non-bargaining unit employees make up about 24% of the medical service employees
unit. So it is pretty significant. The union filed a national grievance in this
case alleging that the agency violated actually two articles in their contract. One was a–one article involved scheduling
and the bidding process in the rosters and how the correctional staff would bid for assignments,
days off shifts, that kind–and so itís involving of the work schedules bidding. They said that the agency actually set aside
a number of assignments, days off shifts for those non-bargaining unit employees before
they let the bargaining employees bid on them. The second alleged violation of the article
was the article about vacation dates. And, similarly, they said the agency set aside
slots for those non-bargaining unit employees to bid on the vacation dates. So the arbitrator in this case actually said,
yes, the agency did violate the contract, and the award with in the arbitrator decided
that the agency should not–should stop violating the contract, should stop withholding those
assignments, stays off vacation dates, in order to set them aside for those non-bargaining
employees. So the agency filed exemptions and argued
that the arbitrators reward violated their right to assign employees and assign work
under 7106 of the statute. They said they have a right to determine where
employees will be assigned and what assignment it will offer to bargaining unit employees
for bidding. The FLRA decided that, you know, theyíre
going to make up this new framework to determine whether an arbitratorís award violated management
rights. So weíll go through that framework using
this case right now. So the first question the FLRA is going to
ask is did the arbitrator find a contractual violation? If not then–if there was no violation then
theyíre going to vacate the ward. If yes, move onto question two. Does the remedy reasonably and proportionally
relate to the violation? If no, award is vacated. If yes then weíre going to move on to question
three. Does the arbitratorís interpretation of the
provision excessively interfere with the 7106(a) management right. And if it does excessively interfere then
the award is vacated. So to apply the facts of this case, the arbitrator,
they agreed that there was a violation of the contract here. So one was yes, so moving on. Two, the remedy was recently proportionally
related to the violation. So the remedy was they violated the contract,
donít violate the contract, basically. But number three, they found that the arbitratorís
interpretation of this contract provision excessively interfered with the agencyís
right to assign work because, as the agency argued, it restricted their ability to assign
work to employees outside the bargaining unit. So, therefore, the–that portion of that arbitration
award was actually vacated. So thatís the BOP case. And then we will also apply that same set
of management rights framework to some other cases that have come up. The first bullet is, again, the BOP case which
I just went over. So the agency violated the contract. These are the three questions. Two, the remedy was reasonably related to
that violation, but they found that there was excessive interference with the management
right. In the CBP case, the DHS case, second bullet,
what happened in this case, there was a grievant was arrested for driving under the influence
of alcohol while carrying a firearm. So there is a different–there is an–at the
agency, they have the ability to carry out what they call expedited investigation, but
they donít have to use that. So in this case, the agency argued that–well,
the union filed a grievance on behalf of the employee. And the agency argued that, you know, the
grievance–the grievant was ineligible for this expedited process, and that it was okay
that the investigation took 14 months, and that it–the union also said, hey, itís supposed
to–you know, youíre supposed to use the expedited investigation process, and you have
to provide the grievant with a disciplinary notice as soon as practicable. The arbitrator found the agency violated the
contract, and the arbitrator actually awarded the grievant 12 months of back pay for missed
overtime. The FLRA applied this new management rights
framework, which you can follow on the side previous to this. So it really centered on that second question. Was the remedy reasonably related to the violation? The FLRA said no. The remedy of 12 months of back pay for the
loss of overtime was not related to this violation of not providing notice at the earliest practical
date. The FLRA said the agency did not have to use
this expedited process and basically 12 months was completely unreasonable, so they vacated
that award. The second case also turns on the second question
of the framework. In this case, the arbitrator concluded that
the agency violated a telework provision in the CBA when it did not provide a sufficient
explanation for why the–for why the–sorry. For why the grievant was denied telework fulltime
in a different city. So the arbitrator awarded that the grievant
would be allowed to telework from a different city and provide this grievant back pay. The FLRA held that this was disproportionate–this
award was disproportionate to the contract violation too. It was unreasonable. And, again, weíre focusing on that second
question of the framework. The FLRA said the agencyís failure to provide
the grievant with a specific justification of deny–of the denial would entitle the grievant
to, at most, just a more specific justification. So instead of allowing the grievant to telework,
they should have just been–the award should have just been–give them a better reason,
really. And then the fourth bullet is another BOP
case. This actually, again, turns on the third question
of the management rights framework. So, in this case, the arbitrator held that
the agency violated the party CBA by failing to staff the third floor of these housing
units in a prison. So the remedy was the arbitrator said, ìOkay. Just staff the third floor.î The FLRA found
that the award excessively interfered with the management right to assign work and determine
an internal security. So they said–the FLRA said by requiring the
agency to staff the third floor–to always staff the third floor of these units, the
arbitrator denied the agency the ability to determine how it should staff the prison and
substituted judgment for that of the agency on how best to safeguard the prison. So those are all the cases about the new management
rights framework and, sort of, how to apply that. So weíll move on.>>So that would meanÖ>>Yeah.>>Sounds like a mouthful. I mean, [inaudible]>>Yes. Itís a lot.>>Okay. Between–and, actually, the historical context
that, you know, I put on that–or, like, discussing that slide is discussed in the case, so, you
know, itís not something that I would get in five minutes, so I really donít expect
that everybody else would necessarily get that. But if you read the case, you will be able
to actually get all of that information. So moving on to 70 FLRA 501, which is the
Customs and Border Protection case, El Paso. I think, basically, everybody I know that
works in LR has heard of this case. Itís really where the authority has now made
a distinction between working conditions and conditions of employment. Really, really short background. So in this particular case, border patrol
agents inspect vehicles gaining entry into the United States. And agents who work in a primary inspection
area and have a–have the discretion to send vehicles to a secondary inspection area. On any given day, the agents could be assigned
to the primary, the secondary, or both inspection areas. So it is part of established duties. And, at some point, the division chief issued
a memo establishing parameters are under which he wanted vehicles to be directed to the secondary
vehicle inspection area because there–he had established that there were some failures,
in light of being able to detect fraudulent vehicles or documents, so he wanted actually
a greater frequency in the second inspection area. Of course, the union filed a grievance saying
that the agency had changed conditions of employment. Arbitrator agreed, and ordered that the agency
maintain status quo until they had the bargain, the impact, and implementation. Now, in this particular case, as I said, the
authority actually has now taken a category of basically situations out of conditions
of employment which they define as working conditions. So, to be clear, the authority didnít redefine
conditions of employment, but basically what the authority has said is that the day-to-day
circumstances under which an employee performs his or–his or her duties are not conditions
of employment instead they are working conditions. So the–basically, mere increases and decreases,
but performing–the nature and–the nature and type of duties donít–have not changed
would be conditions of employment. And I–actually, thatís really–itís probably
one of the simpler casesÖ>>Yeah.>>Öto talk about distinction. Now, I know thereís been a lot of questions
about this, so Iím going to let you take that.>>Yeah. I think, in part, because the FLRA didnít
really expand a lot on their decision here in the El Paso case, but weíve already received
questions about–you know, since the El Paso has the FLRA done anything to elaborate on
what it thinks does and does not now account as condition of employment. I would say not really, but there have been
references to El Paso thatÖ>>It depends?>>Yes. It depends, of course.>>It depends.>>I think–but there have been references
to El Paso since El Paso. And so we can use those to kind of pick apart
this decision a little bit and see what the distinction is. The first one I wanted to point you to is
actually from June of this year, 2019. And it was National Institute of Standards
and Technology and FOP, and that was 71 FLRA 199. And thatís on your slide. But, again, thatís 71 FLRA 199. This case involved law enforcement officers,
and the agency had a problem where they didnít have enough supervisors to cover each shift
without incurring overtime. So the police chief here developed a new policy
which established additional tasks for nonsupervisory–like, the senior-most nonsupervisory bargaining
unit employees to perform basically in lieu of a supervisor not being on that shift. So they would do things like stepping up in
the absence of supervisors, completing certify–certifying time and attendance, contacting other supervisors
if a problem arose. So just, you know, kind of some supervisory
duties. The union filed a grievance alleging that
the agency implemented the policy prior–you know, they made a change without negotiating. The arbitrator agreed with the union, determined
that the change–that it wasnít changing conditions of employment and it was more than
de minimis. The El Paso case reference here was actually
in a footnote. It was in the FLRA case. It was footnote number three. And they noted that, while not raised by the
agency, meaning that the agency didnít make the El Paso argument probably because the
timing of this case. But it wasnít raised. But the FLRA said, while not raised by the
agency, we take this opportunity to note that changes enacted in this policy are in fact
changes of conditions of employment, not working conditions in contrast to El Paso. So we can see here a case where there is a
distinction between a new policy and this NIST case that I cited and the El Paso case
that was not a change in conditions of employment. I think the distinction here we can make is
that the policy, the law enforcement officers policy in the–this NIST case really just
fundamentally changed the nature and types of duties of the senior officers who were
bargaining unit employees. It essentially gave them supervisory duties
and responsibilities, and it pushed those duties down to them. So they were new duties. They werenít just the nature and type of
duties of–they werenít just how their same duties would be performed. They were–they were new. So I think thatís like a distinction to make
between these new kind of work-related policies between this NIST case and El Paso. And that–and that was the last case, I believe,
that mentioned El Paso. There were some cases in 2018. There was the SSA case, 70 FLRA 759. And in this case, the FLRA actually remanded
the case back to the ALJ to apply El Paso. So this is a case where actually ALJs were
assigned–SSA were assigned clerks, and the agency changed the policy where–they changed
the way the clerks were assigned work. So instead of having a clerk per ALJ, they
kind of formed these teams. The agency argued they had no duty to bargain
because it didnít change the ALJís condition of employment. It really just changed the clerksí conditions
of employment. So the judge found that it actually did change
the ALJís conditions of employment. And when it got to the FLRA, because the F–the
ALJ hadnít had the opportunity to apply El Paso, they remanded this back. So weíll see what happens with that one. And then, finally, thereís another case I
just wanted to point out for another footnote. NT UNFCC is 70 FLRA 691 from–and, again,
thatís 70 FLRA 691. Thatís from July 2018. So this case is actually a negotiability appeal. And the proposal here was for the agency to
adopt security procedures for a building. The same–the same as the security procedure
from, like, another building for another part of the agency. The agency argued that it excessively interfered
with management right to determine internal security practices. FLRA agreed. But the interesting part involving El Paso
in this case was in footnote number three–or, sorry. Footnote 31. Remember [inaudible] as that–that itís important
distinction that the agency should have raised the condition of employment and not do the–no
duty to bargain argument because any determination, he said, that concerns the internal security
of an agency and property is a right that belongs solely to the agency and by its very
nature does not impact a condition of employment. So I think that really opened the door for
agencies to make that argument more. And those are the cases that we thought weíd
point for the El Paso case. Okay. So moving on. Anything you want to say about El Paso?>>No. I think you said quite a bit.>>Okay. Yeah. So basically itís–you know, weíll see what
happens. Itíll be applied, sort of, on a case-by-case
basis. And weíll just see. Okay. So moving on to the next slide, this SBA case. This is actually a change in precedent. Itís a pretty clear holding we have here
on the slide for you to take away. Easy to remember. Very quickly, the facts of this case. So six months after invoking arbitration on
a–in–on a grievance, the union submitted the standard form to request a panel of arbitrators
from FMCS, and they had to submit that form to the agency. So the CBI–CBA actually said very clearly
that that form had to be submitted within 14 days. So here we have the union submitting it six
months after invoking arbitration where the CBA shouldíve been submitted within 14 days. The arbitrator actually determined that the
grievance was arbitrable. He found that the agency waived the right
because they accepted the form and even if they had objected on timeliness reasons, the
parties had a past practice of not strictly complying with those time limits in the CBA. So, maybe in the past, theyíve accepted this
form, you know, a few months after, beyond the 14 days, essentially. The FLRA reexamined their prior precedent
on two issues. So, they held–the arbitratorís determination
that the grievance was procedurably arbitrable conflicts with the plain wording of the CBA
and therefore, the award fails to draw its essence from the agreement. So, the–so parties may now file essence exceptions
that directly challenge arbitratorís procedural arbitrability determinations. And I think the more significant holding in
this case is that arbitrators now may not rely on past practices to overrule this clear
and unambiguous provisions of CBAís. So, when itís there in black and white and
itís clear, an arbitrator canít go in and say, ìNo, there is a past practice not to
follow that.î The FLRA noted that this rule provides parties with stability because now
theyíre able to rely on the actual written agreement and nothing beyond that. All right.>>All right. So, moving on the next slide is Department
of Transportation, Federal Aviation Administration. So, this case centers around the exclusion
of confidential employee or what we define as confidential employee. I think everybodyís familiar under 7103 A13,
a confidential employee is basically an employee that acts in a confidential capacity with
respect to an individual–I donít know where we get this–with respect to an individual
who effects policies or–effects policies as in related to–>>FLR–yeah.>>–Labor-Management relations. Right. That might not be the exact text because I
canít really remember everything. But generally, thatís how we would define
a confidential employee and in the past, the authority has always sort of held that itís
not only, you know, the duties are in a position discretion but itís the actual duties that
are performed by the individual that actually would meet the exclusion for a confidential
employee. Well, actually, now thereís actually another
twist to that. So, in this particular situation, the authorities
rule that future duties may be considered in determining whether an employee meets the
definition of confidential employee. So, in this particular case, the agency and
the union had filed clarification of unit petitions and just whatís relevant here,
I think there were quite a few positions that were a part of the petition but for this particular
issue, whatís relevant are our three categories of positions that was administrative officer,
administrative services specialist, and administrative specialist, positions. So, in this particular matter, the regional
director in DC of the authority found that four employees that encumber these three positions
were not confidential employees as defined in the statute. And the authority granted the agencyís application
for review. And in this particular case, there was no
dispute that the manager or the deputy regional administrator who these folks reported to,
would be involved in significant labor relations matters, including negotiations with the union,
defending grievances, ULPs and these admin support positions would be responsible for
dealing with those issues to support the regional director. But they had not yet performed any of these
types of activities. So, in the circumstance authority did grant
that, those duties which an employee would reasonably be expected to perform, should
they arise, because the individual they report to has significant labor management relations
responsibility would be considered to be confidential for this purpose. So, what the authority specifically said was
that they will look at not only the position descriptions, actual duties identified but
the supervisorís determination of the duties of the confidential employee. So, in this particular situation, I think
the authority equated to for example, if your facilityís manager of the agency and you
have a fire station but, yeah, youíve had no fires. So, youíve had no need for firefighters to
actually do their jobs doesnít make them any less responsible for safety. And–>>Theyíre just lucky.>>Yeah. Exactly, theyíre lucky there have been no
fire. So, in this instance and actually, Iím surprised
that they have not yet had any labor relations activity may be looking for a job soon. No, Iím just kidding. So, in this particular instance, the definition
of confidential employee was expanded as to what someone may do in the future. Yes, itís me. Iíve got–Iíve got the next one too. US Department of Energy, Western Area Power
Administration. So, in this particular situation, the agencies
had difficulty retaining power system dispatchers and the Congress had given the agency sole
exclusive authority to set rates of basic pay and premium pay notwithstanding provisions
of Title 5 of the US Code. So, the agencies exercise this authority since
1989. Union filed a grievance on behalf of some
employees who alleged they were not receiving the prevailing rate of pay for work that they
performed and for holidays and the agency denied the grievance, of course, citing that
they have sole and exclusive and it would not be subject to negotiated grievance procedure. However, arbitrator rejected the agencyís
argument citing the important functions of the negotiated grievance procedure in the
federal sector. And further, the arbitrator found the agency
failed to provide dispatchers with prevailing holiday premium and he awarded the grievance
back pay. So, he made the–and adding insult to injury,
he made the agency responsible for two-thirds of the attorneyís fees and only one-third
to the union because the union was successful in the majority of their grieved actions. However, and so when we talk about sole exclusive,
right? The language that Congress gave, it said,
ìNotwithstanding Title 5.î Now, the agency would not be obligated, right, to be held
to statutory requirement under Title 5 when you apply the grievance procedure. However, the authority and its wisdom in NTEU
Chapter 302 and that particular case is not on the slide but it is a 20,000–2011 case,
itís 65 FLRA 746. The authority held that once an agency exercises
its sole and exclusive discretion to establish an employee compensation system, individual
applications of that system may be subject to the grievance procedure. So, what did they say? ìYes, agency you have the authority notwithstanding
Title 5 to establish pay–to rate a pay–the premium pay. However, now that an individual claims that
they didnít get paid appropriately, they can grieve it.î So, in essence you do get
to apply, right, Title 5. So, in this particular instance, the authority
is now reverse precedent and they–theyíre saying that itís untenable, right? If youíre giving them sole and exclusive
discretion, then to allow the application of Title 5 to prevail. So, in this particular case, the authority
says, ìWe overrule previous decisions that distinguish between establishing and applying
compensation systems in the context of sole and exclusive discretion. If an agencyís discretion over matter a sole
and exclusive then the exercise of that discretion is not subject to negotiations or grievances
in arbitration. And the award was satisfied.>>All right. Okay. So, kind of moving onto a fun one. This is–well, not really.>>Itís sad we consider this fun.>>Yeah. Maybe some of you actually think this is fun. This oneís a little more complicated. It–because it involves both the federal service
and past panel jurisdictional issue and also a procedural dismissal of ULP complaint issues,
so just to make it a little more tolerable, Iím going to break those two issues up and
we broke it up into two slides actually to be a little bit helpful. Okay. So what happened in this case? This is a DoDEA in earlier this year, so the
parties were negotiating their CBA. They reached tentative agreement on 22 articles. So remember, tentative agreement came before
they went to the panel. In this case, thatís relevant. So after that, they–the union requested panel
assistance. You know, they moved on, they reached tentative
agreement on some more provisions. They had a couple of articles left. So the facilitator of–that came in with the
panel assistance then became the fact finder, and he developed a report for the part–for
the panel. So he submitted this report to the panel. He recommended no changes to the article–to
an article about hours of work and that the language was negotiable and recommended that
the parties incorporate all tentatively agreed two provisions. So the agency objected to the fact finderís
recommendations on the articles that he found negotiable. But they didnít object to incorporating the
tentative agreements. More than a month after the panelís decision
came out, so the panel also ordered the fact finderís report so recommended–so they recommended
the provisions which the agency objected to because they were nonnegotiable. And they recommended–they recommended the
tentative agreements be incorporated. So, more than a month after this panel decision,
the union wrote to the agency and asked it to implement the agreement, the agency refused. And of course, the ULP process started. ULP charge was filed. The FLRA Regional Office issued a ULP complaint
against the agency and the authority found, in this case, that they determined that the
panel imposed contract language on hours of work that remember, the agency objected to
the fact finder and panel, was found to be nonnegotiable because it interfered with a
management right to assign work. So the authority directed parties to resume
bargaining over the matters addressed in the disputed articles. So they actually found what the panel said
was negotiable was actually nonnegotiable because it interfered with the management
right. And then the second issue here the FLRA determined
that the panel also exceeded its authority in this case because it ordered the two parties
to incorporate those tentative agreements that I mentioned that were tentatively agreed
to before the panel assistance. And they said the panelís jurisdiction only
extends to matters over which the parties are at impasse. So the matters that went to the panel. So nothing before that. So it does not include those 22 articles that
were tentatively agreed to. Okay. And that was the panel issue. And then the second issue is this ULP kind
of procedural issue here. So the agency here argue that the ALJ in this
case should have dismissed the ULP complaint because the complaint actually did not contain
a negotiability allegation. Meaning, the ULP complaint should have alleged
that the panel decision concern negotiable contract wording, so it didnít have anything
about the negotiability aspect of this. They brought up this case that we have on
the side here, Fort Rucker, and they said that Fort Rucker–the agency argued that Fort
Rucker holds that, you know, that negotiability allegation must be included in the ULP complaint,
and if that–and if it doesnít, meaning that if thatís not what Fort Rucker stands for,
then it was wrong and the authority should reconsider it. So either way, theyíre right, thatís what
theyíre saying. The authority didnít agree with their–the
agencyís Fort Rucker analysis here and argument but they did agree that it should be looked
into and it does lack clarity, so they did–they did–they did change their mind on that one. So they said from now on, ULP complaints for
the general counsel need to specifically plead negotiability if it concerns that. So the FLRA basically overruled that portion
at Fort Rucker that held that the general counsel may not specifically plead negotiability. But like I said, in this case, because the
general counsel, in good faith, relied on Fort Rucker, the FLRA holding in this case
would only be used perspectively. So in all future cases, the FLRA will require
the GC to plead negotiability to avoid a procedural dismissal. Okay.>>All right. Moving right along. Next case that we have for you is a DoD, US
Marine Corps Air Ground Combat Center, 29 Palms, California. So in this–you just made a comment about
authority changing their mind. I really never thought Iíd see that until
recently. Now we actually see the authority changing
their mind.>>Yeah, a lot.>>Quite a bit. Did not think Iíd see that in my career but
thatís just a personal note. So going back to the case on your screen,
the authorityís procedures at 2429.11, so itís under process–itís about interlocutory
appeals. And for those of you that might not know,
generally, interlocutory appeals, the authority will not address interlocutory appeals because
the matter is still in front of an arbitrator for final decision. However, in this particular case, the authority
changed their mind. Imagine that. So in September of 2017, the union filed a
grievance alleging the grieve was performing duties outside their position description
and at a higher grade. And as a remedy, the union had requested that
the grievant be promoted to a GS-9 position awarded back pay. Agency denied it, alleging or claiming that
it was a classification matter and it could not be grieved, the parties were not able
to resolve, it went to arbitration. And the arbitrator issued an interim award
in which she determined among other things that the dispute before her was arbitrable. In particular, she stated that there was ìinsufficient
and conflicting evidenceî as to the exact nature of the grievance. Now, the arbitrator added that she would not
consider arbitration classification issues excluded under the partyís agreement, rather
she said that she would consider how duties were assigned to the grievant, were they properly
detailed, temporarily promoted, or compensated in accordance with the agreement. Of course, under 7121 (c) (5), arbitrators
lack jurisdiction to determine the classification at any position that did not result in a reduction
of grade or pay of an employee. So basically, this particular grievant seeks
a promotion due to the alleged performance of duties of higher graded duties and the
authority said regardless of how the arbitrator had characterized the dispute, the essential
nature of the grievance did concern classification and the award was set aside. Oops.>>Got it.>>Sorry [inaudible]>>Thanks.>>Sure.>>Okay. All right. Hereís another Department of Homeland Security
case, so, really quick, this is–this can be a quicker case and Iíll go over–I think
the more important takeaway from this case is that second paragraph, that last sentence
we have on the slide here. So Iíll go over that. Basically, the facts of this case were the
agency issued three officers memoranda informing them that they were under investigation for
misconduct and it–the memorandum also advised the officers that they were being temporarily
restricted from certain work-related activities such as telework, overtime, credit hours,
holiday work, that kind of thing. The union filed a grievance, they said that
it was illegal under an agency regulation to restrict the agency–to issue these memorandum
because the agency is restricted to only three types of letters to–three types of corrective
letters, sorry. They also alleged due process violations and
the arbitrator denied the grievance. The FLRA here agreed with the arbitration
that the agency regulation does not prohibit these–anything beyond those three corrective
letters so the memorandum was okay to send. And whatís interesting here is the union
argues that these restrictions on those temporary work-related act–the temporary restriction
on those work-related activities can only be imposed as discipline after the conclusion
of the investigation. But the FLRA said, ìYou know, although taking
away those work-related privileges had an adverse effect on employees, there was nothing
to determine that it was actually disciplinarian nature.î So the agency could do that. The FLRA also clarified which I think is the
takeaway here. The agencies do not have an unfettered right
to impose temporary restrictions anytime and employee subject to any investigation which
may result in any form of discipline. There must be legitimate government interest
that support–that connects this–the restrictions and the actual charges. So in this case, the FLRA found there is–there
was reasonable connection between those charges and actually restricting those work-related
activities because the agency can reasonably question the grievantís judgments and trustworthiness. I think one of the charges was like a drug-related
offense, like bringing drugs to a federal facility or something like that. So in this case, it was okay and they connected
the–they connected those–taking away those work-related privileges and the charges. And then our final caseÖ>>Yay.>>Very exciting, on attorneyís fees, which
we may see come up again. So I think itís pretty relevant. The FLRA–this was interesting because the
FLRA solicited Amicaís briefs here from interested parties and they got 10. So it did seem like, you know, an important
case to the FLRA and, you know, to other interested parties obviously. So the facts in this case just very quickly,
basically, the arbitrator found the agency shouldíve–should have been providing environmental
differential pay to some housekeepers. So the arbitrator awarded back pay. And–but the arbitrator denied the unionís
request for attorney fees because there was no provision for attorney fees and their CBA. So beyond, you know, the agency arguing that
they shouldnít have to provide environmental differential pay. Weíll focus on the attorney fees issues here. The union argued that the award was contrary
to the Back Pay Act. And then if we kind of go through the litany
of US code thatís involved in attorneyís fees. So going to stick with me here. The Back Pay Act notes that arbitratorís
awards may include an award of back pay under 5 U.S.C. 5596, and that may include reasonable
attorneyís fees. So 5596 includes a provision that attorney
fees must be an accordance with the standards of the M–of MSPB standards for attorneyís
fees which is 5 U.S.C. 7701. And the MSPB will only award attorneyís fees
if certain requirements are met. One of those being the attorney fees must
be warranted in the interest of justice. So how do we determine what the interest of
justice means? Thatís sort of a very broad phrase, I think. So thereís actually a case that relied upon
from 1980 called Allen v. Postal Service. The FLRA reaffirmed the reliance and the factors
Allen v. Postal Service. And they were actually five sort of categories
and factors in Allen that in a traditional disciplinary case, you can use to go through
the analysis for attorney fees. But in this particular type of case, the grieved
action is not actually disciplinary in nature. So the FLRA said this interest of justice
now should only focus on two of those five categories in Allen. The first being whether the agency knew or
should have known at the time it denied the grievance that it would not prevail at the
arbitration. Or B, prior to the close of record arbitration
compelling evidence that the agencyís position was clearly without merit. So those are kind of the two factors that
theyíll look at for attorneyís fees and as far as knew or should have known, that
standard is, you know, attorney fees may be warranted if for instance the agency was negligent
in taking the grieved action. It lacked reasonable and supportable explanation
for its position. And then if the–if the attorney fees is–if
the agencyís position, sorry, is clearly without merit, that standard will focus on
the actual result of the arbitration so the arbitrator will have to look at the totality
of the circumstances for that case. So thereís a lot of different factors for
that. So here I think–so thatís kind of the two
standards that are the takeaways from Allen that the authority reaffirmed that for non-disciplinary
grievances such as this case, to look at those two things for that interest of justice standard. And then just to conclude, I think member
Abbott had a pretty interesting point in his concurring opinion which weíve seen, you
know, a lot of interesting dissenting and concurring opinions recently. But he actually believes that OPMís regulatory
definition of unjustified or unwarranted personnel action which is kind of the definition that
it extends the Back Pay Act to matters other than pay matters is inconsistent where congressional
intent of the Back Pay Act. So he thinks it should be just restricted
to these pay matters which is interesting. So thatís our last case. If you have any questions as Marcus told you
earlier, hopefully, youíre sending them to AWR. And are there any questions? Iíll ask our executive producer back there.>>Yes. We have time for one question.>>Oh, okay.>>Related to the El Paso Border Patrol case. If your CBA requires you to negotiate over
working conditions as well as conditions of employment, does this case change how you
should approach union notification over changes in working conditions?>>So my first question is, why would you
negotiate both of those? No, Iím just kidding. It was just a personal side. I think at this point, if you have negotiated
specific language then you have to test the waters. I mean, what weíve learned I think from the–from
the El Paso and the subsequent cases. I canít speak. Right? Is that itís going to be on a case-by-case
basis. How the authority carves out. But in this particular–and since you have
very specific language, right? That says working conditions will be negotiated. So in my expectation, I would think you really
will have to negotiate those until that language no longer exists because youíve tied yourself
to something beyond the conditions of employment. Do you think–I mean, you could always test
the waters, right? Weíre getting very interesting analysis and
decisions out of the authority. This might be the time. But I think, you know, absent. And well, the fact is, you have very concrete
language. I donítÖ>>Yeah.>>Öreally know how you circumvent that.>>Yeah. I think thatís the risk you take in kind
of regurgitating language into your contract is that sometimes things can change and you
still have it in your contract and so you have to deal with that.>>Yeah. All right. So if thatís all we have today–but feel
free to email your questions toÖ>>Yeah.>>Okay [inaudible]>>Oh, yeah. If we didnít get your question, we will try
to respond via email or if you just want to reach out to us later with that email address,
feel free too and you can address it to Amanda and one of us will get it. ButÖ>>Yes.>>Öweíll turn it over to Marcus to close
this out. Thank you.>>Thank you.>>Thank you.>>Thank you.>>Thank you, Amanda G and Amanda J for sharing
your expertise during todayís webcast training. Your presentations have provided an outstanding
and informative overview of the Federal Labor Relations Authorityís decisions. I thank OPMís communications staff for your
transmission of the training. And thanks to the AWR team for coordinating
this event. And thank you for participating today. We look forward to having you at the next
employee and labor relations webcast training. Finally, please remember to fill out the online
evaluation form courtesy of surveymonkey.com. Your feedback helps us to plan future webcast
trainings and we appreciate your taking time to complete this survey. On behalf of the entire AWR staff, have a
good afternoon.

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