Labor & Employment Law Daily FLRA failed to explain departure from precedent or linguistic distinctions in CBP’s unilateral border inspection decision
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Friday, June 12, 2020

FLRA failed to explain departure from precedent or linguistic distinctions in CBP’s unilateral border inspection decision

By Brandi O. Brown, J.D.

In concluding that a procedural change instituted without union input at an El Paso checkpoint did not violate the FSLMRS, the FLRA, without explanation, departed from precedent and failed to explain itself.

A unilateral change to vehicle inspection procedures enacted by a Customs and Border Patrol division chief in El Paso, which led to a union grievance, wound its way to the D.C. Circuit after the Federal Labor Relations Authority set aside an arbitration award in favor of the union. Expressing some consternation at the Authority’s failure to explain its conclusion and its unexplained departure from precedent, the appeals found the Authority’s order was arbitrary and capricious and remanded the matter for further proceedings consistent with the court’s opinion (American Federation of Government Employees, AFL-CIO, Local 1929 v. Federal Labor Relations Authority, June 9, 2020, Henderson, K.).

El Paso inspection changes. In 2014, the division chief for the El Paso sector of U.S. Customs and Border Protection (CBP), attempting to address a lapse in detection of fraudulent documents, distributed a memorandum modifying the inspection process with regard to both primary and secondary vehicle inspections. Because the agency failed to notify or negotiate with the union regarding the change to a condition of employment, the American Federation of Government Employees (AFGE) filed a grievance. The agency denied the grievance and the parties went to arbitration. The arbitrator sided with the AFGE and concluded that the agency had violated the Federal Service Labor-Management Relations Statute (FSLMRS)—which requires federal agencies to notify and negotiate with unions before changing federal employees’ conditions of employment—by failing to notify and negotiate with the union.

Arbitration award for union. Under the FSLMRS, the court explained, federal agencies must negotiate in good faith with unions representing employees and engage in collective bargaining with regard to “conditions of employment.” In situations where conditions of employment are changed, the duty to bargain includes notice and opportunity to bargain. The phrase “conditions of employment” is defined by statute. According to the arbitrator, the memo issued by the division chief changed the CBP agents’ duties in both the primary and secondary inspection areas. The agency filed exceptions with the FLRA.

Set aside “erroneous precedent.” Setting aside the arbitrator’s award, the FLRA took the “opportunity” to correct its “erroneous” precedent regarding the terms “conditions of employment” and “working conditions” in the statute. It concluded that the memo did not constitute a change requiring bargaining because it represented no more than a mere increase or decrease in normal duties, that it “did not change the nature of or the type of duties the officers performed,” and that the memo’s directions did not change anything nor “impact a condition of employment.” The Authority denied the union’s motion for reconsideration and the union petitioned the D.C. Circuit for review.

Failed to explain. Reviewing the Authority’s order under the arbitrary and capricious standard, the appeals court explained that the Authority had to show it engaged in “reasoned decisionmaking.” When departing from precedent, moreover, an agency has to supply a “reasoned analysis” indicating that prior policies and standards were being “deliberately changed” rather than “casually ignored.” However, in its order, the Authority failed to explain how its decision comported with 5 U.S.C. sec. 7103(a)(14), which defines “conditions of employment” under the FSLMRS.

Although recognizing the term “working conditions” was not defined by the statute, the appeals court explained that the term “conditions of employment” was expressly defined by section 7103(a)(14) as “personnel policies, practices, and matters, whether established by rule or otherwise, affecting working conditions.” In its order, however, the Authority claimed that the memo affected working conditions, but not conditions of employment, and therefore did not require bargaining. But it did not explain how it did not involve a “personnel policy, practice or matter.” And while the Authority understood that point on appeal, the court explained, “that understanding and explanation are wholly lacking in” the order, which was where it counts. Post hoc rationalizations made by counsel on appeal could not right the ship.

Didn’t explain departure. Moreover, in the order, the Authority took “the opportunity” to alter precedent to clarify a distinction that it claimed existed but failed to explain why it did so. Prior to its order, the Authority had defined “working conditions” under sec. 7103(a)(14) broadly, noting that there was “no substantive difference” between that term and “conditions of employment.” Rather than explain its departure from that understanding, the Authority simply stated that its earlier view was “erroneous.” It failed to explain the differences between the terms or why they mattered. It also failed to explain how the definition of “working conditions” it provided differed from the statutory definition of “conditions of employment.” While it argued on appeal that it had provided an explanation, pointing to its citations of concurrences in prior decisions, those concurrences detracted from, rather than helped, the Authority’s argument.

How did it not require bargaining? Finally, the Authority also failed to explain its conclusion that the memo was not a change that required bargaining. It purported to rely on a 2012 Authority decision concluding that an agency did not need to bargain over “mere increases or decreases in normal duties” but failed to mention that the 2012 decision applied only if that increase or decrease was “not attributable to any change in the agency’s policies, practices, or procedures affecting working conditions.” In fact, agents were required to conduct inspections in different ways than before. Moreover, to the extent the Authority argued that the agency didn’t change the nature or type of duties performed by the agents, that argument was misplaced because that analysis was not connected to the definition under section 7103(a)(14).

Finally, although the Authority claimed that the memo “did not change anything,” the appeals court explained that the memo “plainly changed something.” The Authority just didn’t make clear whether or not it was a change in a personnel policy, practice, or matter affecting working conditions. Because agencies reading the Authority’s decision would be “left wondering,” as the court had, how the Authority concluded that the agency was free to issue the memo without bargaining, it was “not the product of ‘reasoned decisionmaking.’”

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