Federal Manager's Daily Report

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A federal appeals court has overturned a key FLRA decision on federal agencies’ duty to bargain over what constitutes a “condition of employment” over which agencies must negotiate with a union.

The U.S. Court of Appeals for the District of Columbia Circuit sent back to the FLRA for reconsideration a 2018 ruling in which the FLRA drew a distinction between that term and “working conditions,” which it previously had used synonymously. Labor-management law requires bargaining over a change in a personnel policy, practice or matter that affects working conditions, with certain exceptions not relevant to this dispute.

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The case involved a CBP facility’s memo designating the circumstances under which vehicles entering the country would be sent for additional inspection after the initial check. An arbitrator ruled that the policy was negotiable on grounds that it changed the agents’ duties.

The FLRA though ruled that while the memo affected working conditions, it did not affect a “condition of employment” because it did not change the nature of or the type of duties the officers performed. It held that “mere increases or decreases in normal duties do not constitute changes over which an agency must bargain.”

However, the appeals court held that the FLRA decision “fails to explain the differences between the terms or how the alleged differences matter” for deciding what is or isn’t negotiable. It added that in concluding that the term “working conditions” has a separate meaning under the law, the FLRA misinterpreted court precedent holding that the term is just part of the law’s definition of what is negotiable.

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2020 Federal Employees Handbook