Appeals Court Strikes Down Labor Authority Decision That Limited Scope of Federal Union Bargaining

A federal appeals court on Tuesday overturned a 2018 decision by the Federal Labor Relations Authority that sought to limit the matters over which agencies are required to negotiate with unions by creating a distinction between the phrases "conditions of employment" and "working conditions."

In 2018, the FLRA overruled an independent arbitrator who had found that U.S. Customs and Border Protection erred in not negotiating with the American Federation of Government Employees Local 1929, which represents CBP employees at the agency's El Paso, Texas, border crossing, over a 2014 policy change on how employees should inspect vehicles and border crossers' immigration documents. In that decision, FLRA Chairwoman Colleen Duffy Kiko argued that the long-held precedent that the terms "working conditions" and "conditions of employment" are synonymous was misguided.

"To assert that the terms 'conditions of employment' and 'working conditions' mean the same thing is to engage in a type of circular reasoning that has been criticized by the U.S. Supreme Court," she wrote. "It is little different than trying to define a rock as a rock-like object or a cellular phone as a phone that is cellular. It means nothing. It is obvious to us that Congress acted intentionally in [the statute] when it used the one to help define the other."

According to federal labor law, agencies have a duty to bargain with unions before making changes to conditions of employment, which are defined as "personnel policies, practices and matters, whether established by rule, regulation or otherwise, affecting working conditions."

After asking in vain for the FLRA to reconsider its decision, the union appealed the decision in U.S. Circuit Court for the District of Columbia. In a 16-page decision, a three-judge panel led by George H.W. Bush appointee Karen LeCraft Henderson found the FLRA's decision to be "arbitrary and capricious" because the FLRA "failed to reasonably explain its departure from precedent."

Henderson wrote that a key problem with the decision is that it seeks to create a distinction between "conditions of employment" and "working conditions" without ever explaining what that distinction is.

"Specifically, [the order] failed to explain how its decision comports with the express language of [the law]," she wrote. "The authority characterizes its decision as clarifying the terms of the statute but its rationale provides more questions than answers."

Henderson also noted that Kiko's argument that the two phrases have distinct meanings is derived from a "misreading of" a Supreme Court decision—Fort Stewart v. FLRA—which actually suggests the opposite.

"The Supreme Court, in deciding whether an employer was required to bargain over wages and benefits in Fort Stewart, explained that 'working conditions . . . more naturally refers, in isolation, only to the circumstances or state of affairs attendant' to one's job performance," Henderson wrote. "But the court clarified that 'here it is not in isolation, but forms part of a paragraph whose structure, as a whole, lends support to the authority's broader reading.' By omitting the phrase 'in isolation' and the high court's subsequent clarification, the authority misreads Fort Stewart to imply that 'working conditions' has a free-standing definition when, in fact, the point being made is the opposite."

The FLRA also argued that the CBP memo falls under a provision of federal labor law that allows management to direct employees and assign work without bargaining with the union, but the court noted that the agency failed to acknowledge an important exception to that rule.

"The very next subsection says that 'nothing in this section shall preclude any agency and any labor organization from negotiating . . . procedures which management officials of the agency will observe in exercising any authority under this section,'" Henderson wrote. "The memo in this case arguably goes beyond merely assigning work in that it changes the inspection procedures at border checkpoints, at least slightly, but to the extent it does involve assigning work and determining personnel, it would constitute the procedure which CBP management observe in making those decisions."

The decisions remands the case back to the FLRA for a new decision  "consistent with this opinion." In a statement, AFGE National President Everett Kelley applauded the decision as a "significant victory" for federal employee unions.

"The FLRA had tried to use this case to limit workers' bargaining rights and prevent the union from negotiating on their behalf on certain issues," he said. "Had the agency prevailed, it could have limited the scope of bargaining through the federal sector."