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Dewey Publications Inc. -

October 4th, 2023 | Issue #15-07




We offer legal reference books and audiovisual training on federal civil service, equal employment, and labor law, for attorneys, unions, arbitrators, managers, and agency personnel offices. A small business for over 39 years.
Read the full archive of over 100+ News and Case Alerts online at:
Designed for all who work on conduct and performance issues and those who litigate cases, this book serves as a quick reference to federal employment litigation questions. Answers are provided in an easy to read and thorough manner. (more details)
A Dewey bestseller, Compensatory Damages is the seminal text on how to support and defend against claims for compensatory damages and other remedial claims in federal sector employment discrimination cases. Includes case summaries through mid-2023 and a chart of significant awards. (more details)
Updated annually, this encyclopedic guide condenses MSPB and Federal Circuit decisions from 1999 through early 2023 into concise, usable summaries. Cases are arranged by subject matter areas and further categorized alphabetically. The MSPB Reference Materials free download and an index and table of cases rounds out this research tool. (more details)
Updated with cases through mid-2023, the Disability Deskbook is an extensive compilation of decisions interpreting the Rehabilitation Act, ADA, ADAAA, and other statutes and implementing regulations, and covers all disability related topics. (more details)
First produced in 2005–2006, this course was reviewed and revised in 2023 to add discussion of the Board’s e-filing system, mediation programs, and video hearings, and to delete references to some procedures no longer used by the Board. The basics of the course remain the same—covering the process from filing of the appeal through issuance of the initial decision. (more details)
Format: downloadable .zip containing .mp4 video and .pdf table of contents
The MSPB Guide is a complete research tool for Board cases, laws, procedure, and litigation practice and is the seminal text on this complex area of the law. Major topics include jurisdiction, appeals, discovery, hearings, evidence, PFRs, adverse actions and discipline, nexus and mitigation, substantive offenses, performance cases, RIFs, prohibited personnel practices, retirement, attorney fees, settlement, remedies, and judicial review.(more details)
Using Board and Federal Circuit cases as examples, Charges & Penalties offers comprehensive analysis and authoritative advice on adverse actions, charge drafting, and penalty selection. (more details)
Updated annually, the EEO Guide, written by Natania Davis with Ernie Hadley, Founding Author, offers the most comprehensive analysis of federal sector EEO decisions, litigation practice, statutes, regulations, policies, guidance, and practical advice available to practitioners. (more details)
In two volumes, Updated annually, the FLRA Guide is a complete research tool on unit determinations, negotiability and the collective bargaining process, unfair labor practices, and constraints on arbitration. The Guide includes discussion of cases, laws, and litigation practice before the FLRA and its reviewing courts. (more details)
This encyclopedic text features summaries of federal sector arbitration awards addressing significant issues and major arbitration principles from 1999 through 2022. Awards are arranged by topic. Principles includes a table cross-referencing arbitrators to the awards they have issued. (more details)



Within the year past, FLRA announced it would heed the instructions from long ago from the Supreme Court’s Steelworkers Trilogy to avoid excessive oversight of arbitrators’ contract interpretations.

What the FLRA giveth, it taketh away.

In a decision exceptional even by FLRA standards, Consumer Financial Protection Bureau and NTEU Chapter 335, 73 FLRA 670 (Sept. 26, 2023) (CFPB), the Authority decided to revise the test by which awards will be measured against the management rights clause, 5 USC 7106.

Not discussed by FLRA were the critical elements of federal sector bargaining, so we mention the structure here.

We start with the recognized statutory obligation of labor and management to bargain over conditions of employment, 5 USC 7102, in good faith, those conditions to include personnel policies and practices affecting working conditions, 5 USC 7103(a)(12, 14), with the exception of matters involving the Hatch Act, classification of positions, and matters specifically proved for by statute. Under 5 USC 7121(b)(1), each contract must include grievance procedures. And grievance procedures may not cover matters involving the Hatch Act, federal insurance or retirement benefits, national security removals, examinations or appointments (think probationers), or classification. The limitations of negotiable working conditions and grievance provisions overlap, though they are not identical.

Well and fine. Within those strictures and the vastness and complexity of negotiability law, the parties obtain negotiability rulings, get judicial review of those rulings, bargain, mediate, resolve impasses or not, implement contracts, and grieve their violations. Complex enough.

But then—but then—there’s more.

Enter the clause that management negotiates in the private sector but obtains gratis in the federal sector.

The management rights clause, of course, 7 USC 7106, that says nothing in the labor-management chapter of Title 5 shall affect the right of management to hire, assign, retain, suspend, remove or take other discipline against employees, or to assign their work, or to make appointments.

The management rights provision, were there nothing else, obliterates the statutory bargaining rights over most everything of substance relating to negotiations of working conditions.

There is more. 5 USC 7106(b) allows negotiations over the adverse effects on employees through the exercise of management rights and procedures by which managers exercise those rights. The statute also allows the agency to elect to negotiate on methods and means of performing work and the numbers, types and grades of employees assigned to work projects or tours of duty. But, returning to the FLRA decision here, we are not speaking to any action by management to turn over management of the enterprise to the union.

Moving to the case at hand, CFPB considered exceptions to an award involving a reprimand—just a reprimand.

But the Agency’s exceptions led to a wide-ranging, heavily-footnoted (count them: 124) decision that recapped the history of tests invoked, changed, and applied over decades to assess the degree of permissible interference of arbitrators’ awards with statutory management rights.

Now one could argue that once management and labor have gone through the whole, inordinately long, complex process of negotiating a contract (which may take years), that the final product—the contract—would be considered to meet concerns about management rights that are the subject of any earlier negotiability disputes and decisions. Were that the case, then it would be reasonable to determine if arbitrators’ awards are faithful to the contract, if the parties have received due process from the arbitrator, and whether the remedy ordered by the arbitrator is reasonably tailored to address the harm established through the contract violation.

And, perhaps, in the broadest sense, over the decades that FLRA has been adjudicating negotiability, ULP complaints, and exceptions to arbitration awards, that’s been the path followed, even if the path has its twist and turns, its ups and downs.

Way back when, in olden days, there was the Bureau of Engraving and Printing decision, 53 FLRA 146 (1997) [BEP], involving a grievance about the level of a performance appraisal. FLRA determined, reviewing its past decisions and a Supreme Court decision interpreting Section 7106, that an arbitrator may cancel a rating that violates a law or a provision of a contract provision negotiated as an arrangement under 7106(b)(3). And if there was a violation, the arbitrator could reconstruct what management should have done had the contract been followed.

FLRA then departed from the reconstruction requirement; instead FLRA would determine if the remedy was reasonably related to the contract provision violated or the harm remedied, EPA and AFGE Council 238, 65 FLRA 113 (2010), still requiring, as in BEP, that the award enforce a provision negotiated under 7106(b) or an applicable law.

Returning to the management rights clause, FLRA eventually determined that the remedy established by an award, enforcing a negotiated arrangement or procedure, would be set aside if it abrogated a management right.

Along the way, a D.C. Circuit decision, Treasury, IRS v. FLRA, 739 F.3d 13 (2014), questioned the coexistence of an excessive interference and abrogation standard when measuring the same management rights in one set of cases—involving negotiability of contract provisions—and in another—involving application of negotiated contract provisions.

From there, FLRA proceeded to DOJ Bureau of Prisons and AFGE Local 817, 70 FLRA 398 (2018), reviewing an the award of an arbitrator who determined that some shift assignments violated the CBK. FLRA announced what it styled a new standard, whether “the award excessively interferes with the Agency’s management right to assign employees and to assign work. FLRA, over the dissent of Member DuBester, decried the increasing encroachment by arbitrators’ ruling on agencies’ performance of essential government functions.

?We return now to the CFPB decision. FLRA, without resolving the exceptions (more on this later) decided to create a new measure of permissible or impermissible infringement of management rights—based on an excessive interference test that included these points:

1. Does the award affect a management right? [if not, no other management rights inquiry need occur]

a. As to “affect” one looks to:

i. Does the arbitrator’s interpretation or application of the CBK limit or require the exercise of a management right, or

ii. Does the awarded remedy direct the agency to take or refrain from taking an action that involves the exercise of its right?

2. Is the CBK provision, as interpreted and applied by the arbitrator, enforceable under 5 USC 7106(b)? [As a procedure, an arrangement, or a matter of permissive bargaining]?

i. The arbitrator should address the arguments;

ii. If the arbitrator determines that the provision is enforceable under 7106(b), and if that finding is challenged on exceptions, the FLRA determines if the arbitrator is correct;

iii. If the arbitrator does not address a properly raised 7106(b) argument, the party opposing the exceptions has the burden of demonstrating negotiability of the CBK provision;

iv. In making the assessment, the correct standard is “excessive interference if the proposal is applied as a 7106(b)(3) arrangement; and

v. No “tailoring” test will be applied unless a party argues that the tailoring requirement is not met “for some reason.”

3. If the CBK provision or remedy is not enforceable under 7106(b)—

i. If the underlying finding of a CBK violation is invalid, the award is set aside;

ii. If the remedy, but not the CBK violation, is set aside, FLRA will remand for resubmission to arbitration; and

iii. If the remedy is not set aside as a violation of 7106(b), upon challenge, it must reasonably correlate to the enforced provision, and if it does not, FLRA will remand for an alternative remedy. [Sounds similar to the earlier “tailoring test”].

With all of that, FLRA did not decide the exceptions, but asked the parties to brief application of the newly-minted tests to the March 2020 reprimand.

Here’s the rub: challenges to reprimands or other discipline are routine to arbitrators. Deciding the complexities of negotiability law, in addition to figuring out whether the reprimand [or other discipline] is for just cause, is not part of the work of the arbitrator customarily chosen from an FMCS list. Complex negotiability analysis (which may require testimony on bargaining history) is going to increase in garden-variety arbitration cases the time invested by arbitrators in cases, and the resultant costs to the parties, and the chances of the arbitrator getting negotiability analysis arguably wrong will increase the number of exceptions, delaying the arbitration process (which is supposed to provide speedy relief or at least speedy awards) and undermining the deference to arbitrators’ contract interpretation arguably endorsed by FLRA. On the bright side, our publisher says it may boost sales of the much beloved, critically-acclaimed FLRA Guide.

Consumer Financial Protection Bureau and NTEU Chapter 335, 73 FLRA 670 (Sept. 26, 2023)

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The Dewey Publications Podcast
Monthly Peter Broida will discuss new decisions from the MSPB, FLRA, their reviewing courts, and occasionally EEOC.

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