From a series of presidential executive orders gutting workers’ rights to several poorly reasoned and anti-union decisions from the Federal Labor Relations Authority (FLRA), four years of anti-union policy by the previous administration left much damage to the federal workforce and their ability to serve the public in a safe and healthy work environment.
But thanks to our union’s fighting spirit in challenging these unjust policies, a federal appeals court recently issued two decisions overturning anti-union policy statements issued by the FLRA in 2020. Two of the members of the FLRA at the time the policy statements were issued still have their seats.
In a major victory for AFGE, fellow unions, and federal workers, the U.S. Court of Appeals for the D.C. Circuit on Feb. 1 struck down the FLRA’s decision that restricted unions’ right to bargain over changes affecting conditions of employment.
In its attempt to dismantle federal unions, the FLRA in 2020 reversed decades of precedent and sought to narrow the scope of bargaining. Specifically, it sought to eliminate the longstanding “de minimis” standard for bargaining and replace it with a “substantial impact standard” that would have drastically reduced the scope of negotiable agency changes.
The court called the FLRA’s reasoning for changing the policy “arbitrary and capricious”.
“The cursory policy statement that the FLRA issued to justify its choice to abandon thirty-five years of precedent promoting and applying the de minimis standard and to adopt the previously rejected substantial-impact test is arbitrary and capricious…Consequently, the unions’ petitions for review are granted and the FLRA’s September 30, 2020 general statement of policy is vacated,” the court ruled.
“This case should be yet another example of what kind of unfettered abuse the Trump appointees are still capable of inflicting until we get new appointees confirmed,” said AFGE General Counsel David Borer.
A few days earlier on Jan. 28, the court struck down another politically-motivated FLRA decision that sought to eliminate our union’s statutory right to engage in mid-term bargaining, which is used to negotiate over new changes that come up and are not addressed in a bargaining agreement.
The decision also made “zipper clauses,” which limit negotiations on unforeseen matters during the term of contract, a mandatory subject of bargaining. This would have allowed an agency to prevent mid-term bargaining through the FLRA’s component agency – the Federal Service Impasses Panel, which was repeatedly used by the previous administration to impose anti-worker provisions when there’s a dispute between the agency and the union.
The court questioned the FLRA’s motive in issuing the decision and called its line of reasoning illogical.
“FLRA policy statements are unusual: Before producing a spate of them in 2020, including the one challenged here, the Authority had not issued any Policy Statement in over thirty-five years,” the court said. “The drive-by procedure and conclusory reasoning that produced the challenged Policy Statement is little match for the full process and detailed analysis that supported the Authority’s” prior decision on this issue.
AFGE salutes the court for recognizing that the FLRA impermissibly departed from the statute governing federal-sector labor relations and years of well-founded precedent with little explanation and less reasoning. The court’s decisions are a vindication for the rule of law and a necessary move toward returning balance and stability to federal-sector labor relations.
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