Landmark Bargaining Decision Issued by FLRA

May 3, 2018


The Federal Labor Relations Authority issued a milestone case reversing years of case law that may have staggering implications for federal agencies. The Obama administration issued an executive order giving unions “pre-decisional involvement” in agency decision making. Further, the Obama FLRA empowered those unions to halt just about every agency action involving employees, pending mandatory negotiation, which could last years.

The premise was there would be a level playing field between government and labor organizations representing its employees. This caused agencies to miss many opportunities for needed improvements.

The pre-existing case law assumed that basically, every workplace change affected employee conditions of employment and working conditions, which is interpreted as synonymous terms. For example, moving an employees’ work area from the 5th floor to the 4th floor must be a negotiable condition of employment because it’s a change.

The New Decision

The new case, 70 FLRA No. 102, involving Customs and AFGE, says that Congress used 2 different terms in the same provision and must’ve intended the terms had different intended meanings. In the critical statutory language, found at 5 U.S. Code § 7103 (a) (14), it states “conditions of employment” mean personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term doesn’t include policies, practices, and matters:

  • Relating to political activities prohibited under subchapter III of Chapter 73 of this title;
  • Relating to the classification of any position; or
  • To the extent such matters are specifically provided for by Federal statute.

The phrases at issue are “conditions of employment” and “working conditions”.

In its decision, the FLRA said,

“Our statute requires that an agency must provide notice, and an opportunity to bargain, before it may change conditions of employment. ‘Conditions of employment’ are defined, in § 7103 (a) (14), as personnel policies, practices, and matters, whether established by rule, regulation or otherwise, affecting work conditions’. Through a convoluted evolution, however, the Authority came to the erroneous conclusion that ‘there is no substantive difference between [the terms] ‘conditions of employment’ and ‘working conditions’. That notion, however, defies both judicial and commonsense rules of definition and is ‘support[ed] [by nothing more] than the Authority’s own repetition of it.’…It is a basic canon of statutory interpretation that ‘Congress acts intentionally’ when it ‘inclu[des]or exclu[des]’ particular words in a statute Congress defined the term ‘conditions of employment’ in § 7103 (a) (14) as those ‘personnel policies, practices, and matters’ which ‘affect [] working conditions’. Under accepted rules of statutory interpretation, 2 different terms used in the same context cannot mean the same thing and therefore must mean something different. In the context of our statute, the distinction between these 2 terms lies at the very foundation of differentiating between purported changes that are, and are not, subject to a duty to bargain.”

FLRA went on to say that the terms are related but not synonymous. “On this point, the U.S. Supreme Court explained that until the term ‘conditions of employment’ is susceptible to multiple interpretations, the term ‘working conditions’, as used in § 7103 (a) (14), ‘more naturally refers…only to the circumstances or state of affairs attendant to one’s performance on a job.’ In acknowledging the distinction between those terms, the court cited with approval the U.S. Court of Appeals for the District of Columbia Circuit, which had earlier held that ‘working conditions’ are ‘the day-to-day circumstances under which an employee performs his/her job.’”

The Case

The Customs case involved duty changes for Customs inspectors concerning which vehicles they directed to an area conducting higher level inspections.

FLRA had crucial comments on this:

  • The Authority previously held mere increases and decreases in normal duties don’t constitute changes over which an agency must bargain.
  • The memorandum didn’t change the nature of or type of duties of the officers. Basically, it gave instructions from the division chief to his agents telling them how they were to perform inspections. Supervisors have the responsibility to direct and even adjust how employees perform their jobs. A supervisor isn’t required to negotiate with the union every time he/she adjusts how employees perform their duties.
  • The directions in the memorandum didn’t change or impact a condition of employment.


FLRA believes that to create a bargaining duty on a working condition change, the change in job duties must be more than or different from the existing scope of duties within a job or within duties related to a given employees’ job and affect those conditions of employment the statute defines as “personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting ‘working conditions’.”

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