DOES FSIP’S OFFICIAL TIME ORDER VIOLATE THE LAW?
FLRA has ruled a number of FSIP decisions illegal and unenforceable. Usually, it is because the Panel-imposed language violates management 7106(a) rights. (See Note 1 below). But that is not the only example of how the Panel can act illegally, and it appears we just saw another with the issuance of U.S. Dept. of Agriculture, Rural Development, and AFSCME, Local 3870, 2017 FSIP 06 (2018). The impasse issue the parties brought to the Panel was how much official time the union rep should receive each week. The union wanted three days a week while the agency was only offering two, which was what the last contract provided. Consistent with the Panel appointees’ lack of any qualifications as neutrals, the Panel decided to give the union rep only one day a week. But is that legal? It seems to us that it is not for a few reasons.
Admittedly, the law (5 USC 7119(b)(5)(B)(iii)) says that the Panel can “take whatever action is necessary and not inconsistent with this chapter to resolve the impasse.” That is a pretty broad grant of power, but it is limited to the “impasse.” The last four words of that clause are not just space fillers. Without them, the Panel could arguably not just settle the impasse issue, but also fine the party that it thought was unreasonable or go back and rewrite portions of the agreement which were not at impasse.
That begs the question of what is an impasse. The Panel defines it as follows:
The term impasse means that point in the negotiation of conditions of employment at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement.” (5 C.F.R. 2470.2(e))
That seems to confirm that the Panel’s jurisdiction begins from the “point in negotiations where progress ended. Nothing in the law suggests that the Panel can back the parties up to an earlier point in their bargaining proposals so that it has more room to shape concessions or threaten an unreasonable party. Nor does it suggest that rather than resolving a dispute over the amount of official time that the Panel may substitute for a loss on an official time proposal a surrogate entitlement, such as cost-free arbitrations and unlimited travel and per diem for the union. The Panel does not have the power to decide the nature and scope of the impasse. The parties do that through their bargaining record, and it is up to the Panel to decide the dispute it is given.
The D.C. Circuit Court seemed to have made that point when it overturned an interest arbitration decision because “before the Panel can employ its power, there must first be an impasse.
The Statute allows the Panel, and by designation the arbitrator, ‘to provide assistance in resolving negotiation impasses between agencies and exclusive representatives.’ Id. § 7119(c)(1) (1988). The Statute does not define a “negotiation impasse,” but the Authority’s regulations define the term to mean that point. . .at which the parties are unable to reach agreement, notwithstanding their efforts to do so by direct negotiations and by the use of mediation or other voluntary arrangements for settlement. 5 C.F.R. § 2470.2(e) (1994) (emphasis omitted). Clearly, the Panel’s jurisdiction is premised on the parties being “unable to reach agreement, notwithstanding their efforts to do so.” Indeed, the Panel is obligated to “[d]ecline to assert jurisdiction in the event that it finds that no impasse exists.” Id. § 2471.6(a)(1).”
Consequently, when the Court found that the parties had not bargained over some new proposals the Court overturned the interest arbitration award. POPA v. FLRA, 26 F.3d 1148 (D.C.Cir. 1994)
In this new case, the parties were not at impasse over the difference between one day and three days. The point at which they were unable to reach agreement was bounded by two days on one side and three on the other. The Panel had to limit its resolution efforts to the boundaries the parties had given them. Otherwise, the Panel would be acting like a third, equal, and interested party in the negotiations dispute, which voids its role as a neutral.
After all, if the union knew that the alternative to its demand for three days was not a rollover of the two days it currently had but half of that it might have made a different bargaining decision, thereby breaking the impasse. Similarly, if the agency knew that it risked only having half as much official time during the week to schedule the union rep to cover formal discussions, investigatory interviews, midterm change bargaining, oral replies, grievance meetings, etc. it might have also taken a different position to avoid slowing down agency operations.
An additional indication that the Panel was wrong to impose something that was less than what had been offered throughout the previous bargaining is that if one of the two parties had done that it would likely have been guilty of regressive bad faith bargaining. “A party’s withdrawal of a tentative agreement or a previous proposal, without good cause, is evidence of bad faith bargaining, but withdrawal does not establish per se an absence of good faith.”, Army and Air Force Exch. Serv., 52 FLRA 290, 304 (1996). See also Chicago Local No. 458-3M v. NLRB, 206 F.3d 22 (D.C. Cir. 2000). If it would be illegal for either party to do it, where does the Panel get the power to do so?
By deferring more to its infamous anti-union bias than common sense, the Panel has created a potential mess for the agency. First, it has handed the union rep a great excuse to slow down agency operations by claiming s/he does not have time to move mid-term bargaining faster, permit the agency to hold a prompt formal discussion, or participate in a quick investigation of an integrity matter. A union effort to move at a snail’s pace mid-term bargaining over the agency’s proposal to implement new, high-productivity software or procedures can cost government a lot more than the 300 or so hours of official time the Panel just took from the union.
Second, it has given the union an excuse not to implement the Panel dictated agreement. All it need do is refuse to execute the deal, force the Agency to unilaterally implement it, and then file charges against the Agency for implementing a legally defective and unenforceable Panel order. The risk for the agency of a union refusal to adopt an arguably illegal Panel order is that it may have to undo the changes of an entire new agreement because of one defective clause, e.g., redo a year of appraisals, promotion announcements, telework decisions, etc.
If the agency was smart, it told the union to ignore the Panel’s obsession with punishing union’s and rolled over the two days of official time per week.
Note 1: VA, Washington, DC and AFGE, 33 FLRA 426 (1988) (In light of the court’s decision in Colorado Nurses Association v. FLRA, we conclude that the VA had no obligation to bargain over the grievance procedure. Accordingly, we find that the Respondent did not violate the Statute by refusing to comply with the Panel’s order, and we will dismiss the complaint.); Division of Military and Naval Affairs, NY and NY Council, ACT, 15 FLRA 288 (1984) (Thus, while this requirement may be bargained at the election of the agency, it is not within the duty to bargain. Consequently, in the circumstances of this case, the failure of the Respondent to cooperate in the final decision and order of the Federal Service Impasses Panel did not constitute a violation of sections 7116(1)(1) and (6) of the Statute.) Interpretation and Guidance, 15 FLRA 564 (1984) (Significantly, however, section 7119(c)(5)(B)(iii) requires that whatever action is taken by the Panel may not be inconsistent with the Statute.) See also NAGE v. Federal Labor Relations Authority and Florida National Guard and U.S. DoD, Intervenors, 771 F.2d 1149 (1985).