In a decision that could have implications on federal agencies’ duty to bargain over changes in the workplace, the FLRA has drawn a distinction between two terms that it previously used synonymously, “working conditions” and “conditions of employment,” saying bargaining is required over changes to the latter but not to the former.
The FLRA overturned an arbitrator’s decision in a case involving a CBP facility’s memo designating the circumstances under which vehicles entering the country would be sent for additional inspection after the initial check. The union had argued that the new policy changed a “condition of employment” and thus the agency committed an unfair labor practice by not bargaining over it first, and the arbitrator had agreed.
However, the FLRA said that the law defines conditions of employment as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions.” Over the years, though, it said that it had come to use the term “working conditions” to mean the same thing–what it called “circular” logic, running counter to Congress’s intent when it used one term to help define the other.
On a two-to-one vote, the FLRA held that while the memo affected working conditions, it did not affect a condition of employment since it “did not change the nature of or the type of duties the officers performed.” Both before and after, the agents continued to perform vehicular inspections at either the primary or secondary inspection areas and using the same techniques, it said.
“Mere increases or decreases in normal duties do not constitute changes over which an agency must bargain … Supervisors have the responsibility, and must have the prerogative, to direct, redirect, and even adjust how employees perform their jobs. A supervisor does not have to negotiate with the union every time she adjusts or alters how employees will perform their duties,” it said.
