In a rare set-back for the Trump-controlled Federal Labor Relations Authority, a federal court recently overturned a major FLRA decision that had significantly narrowed the scope of what federal agencies must negotiate with unions. Congress by statute requires agencies to bargain with federal unions such as NAAE only over changes in “conditions of employment.” FLRA has always considered “conditions of employment” and “working conditions” of employees to be synonymous; however, in an April 2018 decision, FLRA rejected that precedent, claiming agencies did not have to bargain with employee unions over mere changes in “working conditions” that were not also “condition of employment,” drawing an opaque, artificial distinction between those two terms. The U.S. Court of Appeals, in its June 9, 2020 opinion, rejected FLRA’s distinction as irrational, holding that those terms are one and the same. The court’s ruling reestablishes the broad scope of what types of changes agencies must bargain with their unions over.
Examples of Management-initiated changes in “conditions of employment” affecting working conditions of employees the Agency must negotiate with NAAE include: (i) changing shift assignments and start times, (ii) increasing or decreasing workloads or duties, (iii) moving offices to new locations, (iv) requiring employees to wear face masks or shields while at work, (v) requiring employees to record their in-out times electronically, and even (vi) specifying how employees are to perform their normal duties.
If you, as an NAAE rep, encounter Management refusing to negotiate over one of your bargaining proposals on the grounds it is non-negotiable, claiming the Agency change is not a change in conditions of employment, you should immediately contact your NAAE Regional VP for help. That Manager’s assertion may be dead wrong.