Federal Manager's Daily Report

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For the second time in less than a week, a federal appeals court has overturned a restriction on bargaining in the federal workplace that the FLRA had imposed, in the latest case a decision that had limited agencies’ obligations to bargain over changes in working conditions.

As with the previous ruling overturning a 2-1 party-line decision by the FLRA to restrict bargaining when new issues arise during the term of a contract, the policy had been issued at the request the Trump administration. Also similarly, in overturning the policy the Court of Appeals for the District of Columbia Circuit found that the FLRA majority acted in an “arbitrary and capricious” way in reversing its own longstanding policy.

The FLRA had held since the 1980s that bargaining was required if a change to conditions of employment was more than “de minimis” [minimal]. However, at the request of the Agriculture and Education departments—which argued that the standard was unclear and was being interpreted inconsistently—the FLRA majority in late 2020 held that bargaining is required only over changes that have a “substantial impact” on those conditions.

However, the court said the FLRA policy statement “falls short on explaining the purported flaws of the de minimis standard.” It said the FLRA’s argument that the prior standard caused confusion was “unconvincing,” saying the cases the FLRA cited as producing different outcomes in similar situations had features that distinguished them from each other.

“Far from demonstrating the de minimis standard is unworkable, the FLRA’s policy statement simply appears to demonstrate how it works,” the court said.

It also said the FLRA failed to support its argument that a “substantial impact” test for bargaining would be more meaningful, saying “There is no obvious reason to expect that labor unions and employers will disagree less frequently about whether any given management decision has a “substantial impact” on conditions of employment than they previously did over whether such a decision had a more than de minimis effect.”

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