Trump’s Labor Board Tried to Limit Bargaining Rights in Federal Sector. AFGE Took It to Court and Won

Categories: Border Patrol, The Insider

In a major victory for AFGE and the entire federal sector labor movement, the U.S. Court of Appeals for the D.C. Circuit ruled against the Trump federal labor board’s attempt to limit federal workers’ bargaining rights by changing its own longstanding interpretation of the term “conditions of employment.” 

The ruling dealt a big blow to the administration’s anti-worker agenda that sought to use the Federal Labor Relations Authority (FLRA) to bust unions, and in this case, take certain issues off the bargaining table.  

“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,” AFGE National President Everett Kelley said. “Had the agency prevailed, it could have limited the scope of bargaining throughout the federal sector.” 

AFGE v. CBP and FLRA 

The case at issue is a grievance filed by AFGE Local 1929 against the Customs and Border Protection (CBP) for changing conditions of employment for vehicle inspection agents in El Paso, Texas, without first notifying and negotiating with the union, in violation of the Federal Service Labor-Management Relations Statute. 

The agents’ primary responsibility at the checkpoints is to inspect vehicles entering the U.S.  The checkpoint is divided into two areas—the primary inspection area and the secondary inspection area. The latter is designed for additional and more comprehensive inspections. In 2014, the El Paso CBP changed the agents’ duties by issuing a memo which mandated that vehicles be referred to the secondary inspection area under certain circumstances. This change reduced the discretion of agents in the primary inspection area, increased traffic in the secondary area, and created additional duties for agents assigned to both the primary and secondary inspection areas. 

CBP rejected the union’s grievance, prompting AFGE to take the case to arbitration, where the arbitrator ruled in favor of AFGE. The arbitrator found, in part, that the change raised reasonable safety concerns for secondary area agents who must manage an increase in traffic, persons and inspections.  

CBP then took the case to the FLRA, which proceeded to overturn the arbitrator’s ruling and announced a change to its own longstanding interpretation of the statutory term “conditions of employment.” In upholding the agency’s argument that it didn’t need to bargain with the union, the FLRA asserted that “there is a distinction between” the terms “conditions of employment” and “working conditions” in the Statute.”  

But in a June 9 decision, the U.S. Court of Appeals for the District of Columbia Circuit said the FLRA departed from precedent “based on a misreading of case law and without explaining the departure.” 

“Unlike the phrase 'working conditions,' which is undefined by the Statute, 'conditions of employment' is expressly defined in § 7103(a)(14) as 'personnel policies, practices, and matters, whether established by rule or otherwise, affecting working conditions.'  Therefore, no matter what ambiguity exists in 'conditions' generally, the Statute’s definition of 'conditions of employment' requires an agency to bargain over changes in personnel policies, practices and matters that affect working conditions,” the court said. 

The court held that the FLRA failed to reasonably explain its departure from precedent and its decision to overturn the arbitrator's decision.  

“The Authority characterizes its decision as clarifying the terms of the Statute, but its rationale provides more questions than answers. Its order, then, is arbitrary and capricious,” the court concluded. 

The court subsequently overturned  the FLRA’s decision and sent the case back to the FLRA for a new decision consistent with the court’s opinion. 


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