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Recently the Federal Labor Relations Authority turned down a request from two departments. Education and Agriculture wanted the authority to issue a policy statement clarifying what’s a condition of employment and a working condition, for purposes of collective bargaining. Bill Wiley, the former executive director, Office of General Counsel, at the FLRA, joined Federal Drive with Tom Temin to explain what it’s all about, and how it might affect an agency’s labor relations.

Interview transcript:

Tom Temin: Mr. Wiley, Good to have you on.

Bill Wiley: Oh, good to be here, Tom. Thank you.

Tom Temin: So what, in your opinion, were Education and Agriculture trying to accomplish here?

Bill Wiley: Well, there’s a concept in labor law that’s been around since the beginning, back in 1979. The opinions of FLRA sort of bounced back and forth, and they’re hugely significant on the day-to-day practice of labor relations at federal agencies. The law itself says that agencies have to bargain working conditions of employment, and in the federal sector, they’re two times agencies have to bargain conditions of employment. Number one is when the union makes proposals at the end of the term of the previous union contract. That’s usually once every three years, and then they bargain. But the other time where this distinction becomes significant is during the life of the contract. If the agency chooses to change a condition of employment, then it has to notify the union prior to the change and complete the bargaining before the change can be implemented. And federal agencies change things during the life of a contract all the time. They get new leadership, Congress passes new laws that have to be implemented, OPM changes regulations. So there’s a variety of reasons that management would change a condition of employment during the life of a contract. Now, when an agency gets ready to change a condition of employment, its obligation is to notify the union and say, “Hey, we plan to change this condition next week next month, whatever it is.” And then the union has the opportunity to make proposals related to that change. And the tough part for management is that it has to complete its bargaining obligation prior to making the change, and sometimes a bargaining obligation can go on for weeks and months. I’ve seen them last more than a year where agencies will have to engage and bargain with the union. They can’t reach agreement, they can’t resolve it through mediation or some other form. So the agency is barred from implementing the change it wanted to make five or six months ago because it’s still bargaining for the past five or six months with this union. And of course, agencies don’t want to wait for most of these changes. They’d like to put in place right away, so the longer it has to wait, the more difficult it is for agencies to do what they think needs to be done to run the government. So the first thing that comes out of the decision we’re looking at is the conditions of employment are a huge deal, because when you change them, you have to notify the union. But there’s another word that to normal people, and that’s people that aren’t deep in this world of federal sector labor relations, is called working conditions, and I think if you stop, someone on the street said, “Hey, do these things sound the same, this phrase of working conditions and conditions of employment?” most would say they do sound the same. But that’s not how the law evolved. There’s a principle in law that says if a statute uses two different phrases for what could arguably be the same thing, it must mean that they’re two different things. In other words, it would not have used different words if it meant that they were gonna be the same thing. So in the early days of FLRA when it started looking at these terms of conditions of employment and working conditions, it said, “Ah ha!” The statute requires union management to negotiate conditions of employment prior to making a change, but it does not do that for working conditions. And so, back in the early 1980s when this law was being fleshed out, we often were litigating whether a matter was a working condition or a condition of employment because if it’s a condition of employment, management could not make the change until a bargain —

Tom Temin: Sure.

Bill Wiley: However, if it was simply working condition that could be changed immediately.

Tom Temin: We’re speaking with Bill Wiley. He’s former executive director of the Office of Special Counsel at the Federal Labor Relations Authority. Just give us some quick examples of what might be a condition of employment that has to be bargained over versus what’s a working condition that could be changed arbitrarily?

Bill Wiley: So condition of employment might be the configuration of a work space. Maybe a work space has six private offices, and then maybe in addition, it has 10 work modules? These are just kind of computer centers. And so it bargains with the union. It’s a condition of employment as to how the six offices are going to be arranged, perhaps what size they are, perhaps what furniture’s in there, perhaps even who would be working in which offices. So those would be conditions of employment because it’s a broad scope application of a condition that the employees are going to be in once they come to work each day. Now, once that condition of employment — six office spaces — is in place, then what happens within those six office spaces as time progresses, management would often argue is a working condition. So they want to move one employee — Employee X — from the first office space, as you come down the hall to the last office space, as you come down the hall. In the early days that would have been, the latter change would have been a working condition that does not need to be bargained. So the arrangement of the offices to begin with when they were first set up is a condition of employment, has to be notified to the union and the union has the right to bargain. However, once that’s in place, then who is assigned to which offices, assuming the employees are basically doing the same duties just being moved around, becomes a working condition and any changes to that does not have to be notified. The union does not have to be notified and bargain with in advance.

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Tom Temin: Now, getting back to this decision from the FLRA to Education and Agriculture, I guess the question becomes, why were they seeking this distinction then — these two departments of Education and Agriculture, citing a DHS case from 2018.

Bill Wiley: Well, you’re gonna find in bargaining like that the agency wants to make the changes right away. Agencies’ viewpoint is that these is a working condition. The union is saying no, it’s really a condition of employment and has to be notified and changed. The law began that there was a distinction between the two and this is the early 1980s, and you didn’t have to bargain working condition changes, but you did have to bargain conditions of employment. But over the 1980s and 1990s, what happened is the FLRA decision seemed to lose that distinction. I can’t say that there was a particular case where they said, from this day forward, we consider these both to be the same, and that both require the same, place the same bargaining obligation on management. That was the result of them. And so that was where we were and have been up until the last couple of three years before we had the current constellation of authority members who have been appointed by the current White House administration. So what’s happened today in the decisions you’re looking at is that the current collection of authority members to — three authority members appointed under President Trump — have decided, “you know, there really is a distinction, even though we’ve kind of brought these together effectively requiring management to negotiate and bargain just about any change in a workplace, whether it be a working condition or condition of employment.” Those things sort of lost their distinction so that something that affected single employee could, the FLRA might look it and say, “Ah ha, that’s a significant enough change. There has to be notification and bargaining.” And what these decisions air coming around to is “No, no, no. Maybe we were right the first time?” They’re two different terms, and there’s a distinction between conditions of employment and working conditions. And the reason those cases come up is that management chooses not to bargain, declares them non-negotiable, and or commits an unfair labor practice by implementing without negotiating. Then that’s where the authorities started to deal with these. This most recent call for clarification from the agencies on FLRA to explain the distinction in more detail makes sense because it is such a fine line between the two concepts and, you know, on a case by case this clarification is not terribly inefficient. You know, when you don’t really know the difference between a working condition, of a condition of employment if your agency, you just have to make your change, roll the dice and after the fact, FLRA  may look at it and so you were right or you’re wrong. So what the agencies are asking for is “Hey, FLRA give us some guidance here. You know, it’s arguable this could go either way, but we understand that you want to make a distinction, but we don’t really know what that means and how to define that.” And they’re asking FLRA to do some defining on a broad base and the authorities declining to do that.

Tom Temin: And so the declining to do that, then what is the practical effect on labor relations and bargaining in those agencies or in any agency?

Bill Wiley: It leaves the agency back having to just pay their money and take their chances. They have to take a position that well, no, we don’t think this is negotiable. So we’re not going to bargain with you before we make the change. And when they do that, a good union is going to follow an unfair labor practice saying that the agency failed to meet its bargaining obligation, the general counsel of FLRA is going to conduct an investigation, perhaps file a complaint — unfair labor practice. So we get all involved in litigation after the fact, and that litigation could result, you know, a year, perhaps two years after the change that the perhaps agency was mistaken. That was something they had to negotiate. Then the order from FLRA can direct the agency to undo the change that it made and perhaps compensate employees who were harmed by the change financially in some way. It would be like your GPS. Most of us have a GPS in our car. The GPS — we say we want to go to the supermarket. It says, okay, here are the turns that you make and the roads that you take. That’s great. That’s what the agencies are asking FLRA to do is to act like a GPS and tell us in advance what things are negotiable and what things are not. And the alternative, what FLRA is doing, and most of adjudicatory bodies would do this, is saying “No, no, no. We’ll tell you when you make the wrong turn. We won’t tell you what the right way to go is, but we’ll tell you when you make the mistake of going the [wrong] way, or perhaps we will tell you when you do decide to go down this street that you’re going in the right direction, but we won’t tell you in advance.” So that’s why this is such an issue. Agencies see it as inefficient that they just have to take their best case because you can imagine so many bargaining situations are unique. Perhaps we could say all of them are, the topics that are involved, prior agreements that the parties have entered into, so there’s just about any case that comes up is going to be different from any other case. So the agency’s would like to have overriding guidance. They would like the GPS approach. If I’m bargaining in the federal sector, tell us in advance what things and clearly our working conditions is compared to conditions of employment, and we’ll go through and do the right thing. The authority’s declining to do that.

Tom Temin: So therefore, things are still kind of up to the discretion, then, of agencies and, as you say, take their best shot and hope that the unions go along or else they’ve got some labor relations issues on their hands.

Bill Wiley: Yes sir. The initial decision-making would be on the part of the agencies. But of course the three members of the authority will eventually decide whether that initial decision was correct in their eyes or was mistaken.

Tom Temin: Bill Wiley is former executive director, office of general counsel at the Federal Labor Relations Authority. Thanks so much for joining me.

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Bill Wiley: Glad to do it, Tom.

Tom Temin: We’ll post this interview along with a link to that FLRA decision at www.federalnewsnetwork.com/FederalDrive. Hear the Federal Drive on your schedule. Subscribe at Apple Ppodcasts or Podcastone.

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