U.S. Environmental Protection Agency and AFGE, Council 238, 65 FLRA 113 (September 29, 2010)(Member Beck concurring) FLRA denied Agency exceptions to arbitration award FLRA modified its test for determining whether a contract provision is enforceable in arbitration under § 7106(b)(3) (prong 1 of BEP) FLRA reaffirmed an agency may challenge the enforceability of an agreement – awards contrary to § 7106 must be set aside If award affects a § 7106(a) right, FLRA examines if it provides a remedy for a contract provision negotiated under § 7106(b) FLRA rejected Agencys argument that provision interpreted by Arbitrator was not an arrangement tailored to benefit employees adversely affected by the exercise of a management right – tailoring analysis does not apply to arbitration awards

FLRA will no longer apply excessive interference test when reviewing exceptions to arbitration awards, i.e., to determine whether an arrangement is appropriate FLRA now will determine whether a contract provision, as interpreted and applied by an arbitrator, abrogates - i.e., waives – management rights under § 7106(a); return to the standard adopted by the FLRA in Dept. of Treasury, U.S. Customs Service, 37 FLRA 309 (1990) There is an outer limit to what parties may permissibly negotiate – management rights are not waivable Statute does not expressly preclude the FLRA from using one standard to determine negotiability under § 7106(b)(3) and another to determine whether an award is contrary to law under § 7122(a)(1)

FLRA finds a crucial difference between negotiability and arbitration contexts – it must balance the benefits and burdens in the former while the parties already have balanced them in the latter In concurring, Member Beck applauds his colleagues move but would go even further and not engage in any assessment of whether a contract provision being enforced by an arbitrator violates managements rights Once parties are before a grievance arbitrator, Member Beck concludes that the only appropriate question is whether the remedy directed by the arbitrator enforces a provision in a reasonable and reasonably foreseeable fashion, i.e., does the remedy draw its essence from the agreement? In footnote 11, FLRA left for another day the question of whether the abrogation standard also should be applied to contract provisions disapproved by the head of an agency under § 7114(c)

NTEU and Dept. of the Treasury, Bureau of the Public Debt, Washington, D.C., 65 FLRA 509 (February 14, 2011)(Member Beck dissenting in part) FLRA majority rescinded agency heads disapproval of parts of 4 contract articles FLRA replaces excessive interference standard set forth in Kansas Air National Guard, 21 FLRA 24 (1986) with abrogation (waiver) standard FLRA majority relies on the difference between § 7117(c)(1) (union may file a negotiability appeal if agency alleges that the duty to bargain in good faith does not extend to any matter) and § 7114(c)(2) (head of the agency shall approve an agreement if the agreement is in accordance with the provisions of [the Statute]) FLRA majority finds that Congress recognized a matter may be outside the duty to bargain but, once agreed upon, not be subject to agency head disapproval unless it is contrary to the Statute or any other law, rule or regulation

A particular proposal may be outside the duty to bargain because it is contrary to law, but an agreed-upon contract provision is not contrary to law merely because, at the bargaining table, it was outside the duty to bargain FLRA majority cites EPA, 65 FLRA 113 (2010) in support of this distinction, stating that wording in § 7122(a)(1) is substantively identical to wording in § 7114(c)(2) FLRA majority concludes that its decision is consistent with previous ones that defer to the bargaining parties choices and with the Statutes requirement that agencies be represented at negotiations by duly authorized representatives prepared to discuss and negotiate on any condition of employment If a union proposal would impose burdens an agency deems excessive, those burdens should be assessed during negotiations and not after the parties have reached an agreement

Member Beck vigorously dissents with FLRA majoritys decision, where decades of precedent have been jettisoned on the basis of an exercise in statutory interpretation that is so strained as to be untenable Once a proposal proceeds to agency head review it will be binding even if it excessively interferes with a management right – this result is flatly inconsistent with Congressional intent Being outside the duty to bargain (§ 7117(c)(1)) and not being in accordance with the Statute (§ 7114(c)(2)) are not mutually exclusive – reference in § 7114(c)(2) includes reference in § 7117(c)(1) (for majority, contrary to the Statute is narrower than outside the duty to bargain) Beck cites D.C. Circuit decision – the purpose of agency head review is simply to allow the head of an agency an extra 30 days to do that which his subordinates could have done earlier

Member Beck predicts practical effect will be to impede normal labor relations and to slow the bargaining process Less delegation of authority to labor relations officials in the field and more hands-on supervision of collective bargaining is likely Proposals that might affect management rights will languish in limbo until reviewed by the agency head, increasing the time necessary to reach agreement or resolve disagreements about specific proposals Member Beck claims decision is inconsistent with Congresses intent to promote effective and efficient federal sector labor relations