FEATHERBEDDING AT FSIP

Featherbedding is a widely condemned practice in labor-management circles.  At best, it is wasteful; at worst, it is dishonest; and, at present, it appears that the Federal Service Impasses Panel (FSIP) is mired in it.  The cost to the rest of us is that the Panel produces fewer decisions and each takes longer to issue.

We first noticed the Panel’s apparent wastefulness when it issued Department of Homeland Security, Bureau of Customs and Border Protection, Washington, D.C. and NTEU, 10 FSIP 10 (January 10, 2011).  It was a monster of a case, involving what appeared to be over 100 issues spread across 18 term contract articles between two highly contentious parties who had started bargaining in four years earlier.  FSIP appointed Member Martin Malin to hear the dispute via a last best offer, article-by-article, interest-arbitration process ending in a final and binding award.  According to Malin’s decision, it took him over four months to issue his 131-page decision after closing the hearing.  Given that other Panel employees have issued decisions within 24 hours of closing their hearings, as we saw in 11 FSIP 131, it is fair to wonder why Malin took so long.  It did not take FEDSMILL.com  long to figure it out once we paged through all 131 pages.

Malin took the time to restate apparently every argument each party made in all 18 articles.  Page after page after page was consumed with reiterations of the Union’s Position followed by the Employer’s Position.  When we extracted all of that material, the decision shrunk to less than 20 pages of the rational for his conclusions. One way of looking at this is that Malin wrote approximately a page a day over four months.  If he had limited himself to just the 20 pages of conclusions, the parties could have had their decision in four weeks rather than four months.  Consequently, we have to ask why he and the Panel believe it is necessary to restate the parties’ positions.

Here is why we believe it is a huge waste of time.

First and foremost, who did he think he was writing all those pages for?  The parties certainly did not need his regurgitation of their arguments.  They made the arguments, they sat through his hearing, and they wrote the post-hearing briefs.  Given that neither the FLRA nor courts can substantively review a Panel decision, there was no need to write the extra 111 pages for them.  And other union-management parties certainly did not need the review of every argument because FSIP cases are not precedential.  Odds are that no one outside the two parties and Panel employees ever read the entire decision. 

Second, if the Panel wants to preserve a record of what arguments the parties made, it can just as easily ask the parties to submit post-hearing briefs and attach them to the Panel decision.  It does not need to waste its tiny resources poring over the record and struggling to find different ways to write what the parties already wrote.

Third, Malin’s magnum opus creates the very dangerous impression that impasse resolution is about great scholarship by a leading labor intellectual in pursuit of the ultimate objective truth.  It is not.  There is no one right way to make promotions, implement compressed schedules, design a grievance process or even structure an official time clause.  The best way to do any of those things is to force the parties that will have to live with the contract provisions to reach an agreed approach that they can live with and learn from for the future.  As soon as a neutral creates the impression that the impasse resolution is really about facts and truth, he distracts the two parties from the core of bargaining, i.e., finding a deal they can accept for the time being that helps their relationship move forward.  That is their mission at the bargaining table and in their larger relationship.

In fact, it is a mystery to us why an interest arbitrator who is vested with so much power over the parties ever needs to write a decision.  The good interest arbitrators use their dominance to push, if not shove, the parties into a voluntary deal—even if she has to sign an award the parties wrote themselves to deflect any blame.  After all, these neutrals have the power to make heavy-handed suggestions, ask piercing questions, toss out deflating feedback in response to an advocate’s arguments, set brutally long days,  establish the standard of proof, exclude evidence, and even threaten to do something neither party will be happy with.  If a neutral cannot generate a voluntary settlement with those powers, then it our best guess that he/she has some personal agenda requiring a written decision. 

Although Malin’s 131-page epic tale of what these two parties said to one another during bargaining may have raised the art of the useless FSIP verbiage to new heights, he is hardly the first to practice that art.  Now Chair Mary Jacksteit filled dozens of pages in 97 FSIP 31 to resolve a midterm RIF dispute and the full Panel consumed another 59 pages settling an AFGE term contract in 02 FSIP 167.  Both documents were predominantly filled with rehashes of the parties’ arguments.

So, let us conclude with a suggestion for the Panel of Seven.

Dear Panel, if you cannot bring yourselves to abandon these valueless restatements of the parties’ arguments, then at least do so when you are backlogged with cases, e.g., something has been in-house more than 90 days with a decision.  If neither of those work, then when acting as interest arbitrators use your powers to avoid the need for any written decision, i.e., man-up.  Otherwise, we suggest that you adopt the image of Don Quixote as the Panel logo to affirm that impasse is all about you and your bewildering quests for truth rather than about what the parties need.